Mistrial Declared in Etan Patz Child Murder Case - Legal Commentary by Boston Attorney Hank Brennan

AddThis Social Bookmark Button

The Etan Patz murder trial recently ended after 18 days of deliberation in a stunning mistrial that seemed an impossibility as the defendant confessed and provided sick, demented, details of the child's last moments of life.

Inside the jury room, where seemingly normal people jockey for power and control, facts often get lost in the play for dominance

Boston legal scholar Attorney Hank Brennan, former Prosecutor for Suffolk and Essex counties, has dealt with his share of juries from voir dire to verdict.As a former prosecutor, Brennan agreed to provide a legal viewpoint from inside the jury room as to some causes of mistrial.

Q. Obviously, the simplest question, how is this possible? Do you think it is the way in which evidence is perceived? The length of time in between crime and trial, how about admissible confessions?

A. There are many causes for a mistrial. Some reasons for a mistrial are based on a fundamental problem with the jury or deliberation process that infects the jury.

For example, if a juror knew a witness in the case and either failed to disclose their knowledge or recognized a witness after the case already began this potential bias could cause a mistrial.

Another reason for a mistrial could be that an outside source infected the jury during deliberation. This type of mistrial would include jurors learning of inadmissible evidence or tampering by a third party.  

The most common cause of a mistrial is the situation that occurred in the Patz case. Although the word mistrial standing alone has a dubious connotation, a mistrial can be based on the simple fact that all jurors could not agree on guilt or innocence. This is not an uncommon phenomenon.

This type of mistrial does not invoke double jeopardy, thus, the prosecution if free to retry the case if they choose to do so.

Sometimes jurors have committed themselves to guilt or innocence before trial. Other times, personal conflicts between jurors can cause one or many jurors refuse to compromise and remain adverse to each other based on personal issues as opposed to the facts of the case. Sometimes reasonable people simply don't agree.  

Q. In this case a single holdout indicated they did not feel there was enough evidence to convict how did eleven people find enough and one not?

A. The lone hold-out juror provided an interview with the New York Post today.  His commentary and opinion was thoughtful, comprehensive, and seemingly sincere. It is not often that a juror will provide such a candid interview so this jurors thoughts actually helps both sides in the event of a retrial.

The defense will better identify what issues a juror may struggle with and the prosecution can isolate the concerning issues and attempt to improve their evidence on those issues.

The division of jurors has no relevance in a re-trial. It is a trap for an inexperienced lawyer to feel comforted by the jury division in their favor or discouraged by a jury division against them. The next jury is a clean slate and there no value to attaching emotion to the juror breakdown.

Q. What are the next options for the prosecutor?

A. Putting aside emotion, the prosecution will appreciate that they have a viable case if virtually every juror sought to commit. In assessing resources available for a re-trial, likelihood of success, relevance of plea bargaining, and whether putting the victim's family through another trial are all issues that have some relevance to the jury break down.

I expect given the circumstances the prosecution will not hesitate to retry the case. Given the extent of the defendant's alleged mental health illness and his age, I do not think a plea bargain to a lower level of murder is beyond reason.


Haute Tease

  • OSCAR Trivia: The Youngest Oscar Winners and Nominees

    AddThis Social Bookmark Button


    Several media outlets have criticized the 2016 Oscars not only due to the lack of nominee diversity, but also the alleged snub of an up-and-coming actor. Nine-year-old Jacob Tremblay stole hearts with his acceptance speech at the Critics’ Choice Awards  

  • London's Alteria Arts Hosts Dynamic New Musical Artwork in a Live Event

    AddThis Social Bookmark Button

    Back in 2015 we introduced Alteria Art as part of The Clash legend Mick Jones and his Rock & Roll Public Library launch, and now we’re again working with founders Lauren Jones and Alix Alix Janta-Polczynski to introduce Photismograms.

  • THE NEW YORKER Presents, a Unique Film Series, Based on Content from the Pages of the Award Winning Magazine

    AddThis Social Bookmark Button

    Based on content from The New Yorker, America's most award-winning magazine, The New Yorker Presents is a unique viewing experience, combining documentaries, short scripted narrative films, comedy, poetry, animation and cartoons.

  • 79 Original Songs Vie For 2014 OSCAR®

    AddThis Social Bookmark Button

    LOS ANGELES, CA – The Academy of Motion Picture Arts and Sciences today announced that 79 songs from eligible feature-length motion pictures released in 2014 are in contention for nominations in the Original Song category for the 87th Oscars®.

  • Weinstein Lexus Short Film Series Three Review – Attention Grabbing, Comedy, and Mysticism Make the Cut

    AddThis Social Bookmark Button

    Four films, Game, Friday Night, Messiah, and The Nation Holds its Breath, selected in Series Three of the Lexus Short Films competition continue to raise the bar in what has become an extremely successful partnership.

  • 88th OSCARS® Production Team Announced

    AddThis Social Bookmark Button

    Producers David Hill and Reginald Hudlin today announced 14 key members of the production team for the 88th Oscars®, which will be televised live in more than 225 countries and territories worldwide Sunday, February 28, on ABC.

  • Ragnarok Review – Fabulous Family Fun

    AddThis Social Bookmark Button

    "Ragnarok," from Magnet Releasing and Magnolia Pictures, brings to the screen with the discovery of an ancient Viking hieroglyphic a suspenseful, thrilling, delightful family adventure setting off a journey that ends with renewed life, hope and love.