'Hung' Jury Told to Keep Trying in Clergy Sex-Abuse Case

By John P. Martin and Joseph A. Slobodzian
Philadelphia Inquirer
June 20, 2012

http://articles.philly.com/2012-06-20/news/32336415_1_jury-note-deliberations-jury-of-seven-men

After 12 days of deliberations, the jury considering charges against two Philadelphia priests in the landmark church sex-abuse trial reported it was deadlocked Wednesday on four of five charges, but resumed working toward a verdict upon the judge's order.

The Common Pleas Court jury of seven men and five women gathers again Friday to continue deliberations after a day off so one juror can tend to what Judge M. Teresa Sarmina called an "important family matter."

The jurors came into court shortly before noon with the message the lawyers and trial participants dreaded, but seemed to anticipate: We're deadlocked on all but one count.

"Please advise us of our next step," the jury note concluded.

But after Sarmina gave them instructions designed to jump-start deliberations — known in legal circles as a "Spencer charge" — the jurors deliberated the rest of the afternoon with no questions or indication they were making progress.

If the jury cannot resolve its stalemate, the judge would have to declare a mistrial, and the prosecutors would decide whether to retry the case.

The jury's note said it had reached a unanimous verdict on one of five counts involving Msgr. William J. Lynn and the Rev. James J. Brennan, but did not specify which count or which defendant. Nor did the jury say if the verdict was an acquittal or guilty.

The jury foreman said that the panel was stuck 10-2 on another count and that one of the two was considering changing sides, but the other was firm. The note did not discuss the split on the remaining three counts.

One of the jury's first questions for Sarmina after it began deliberations June 1 was what to do if it reached a verdict against one defendant and not the other.

Lynn, 61, former clergy secretary for the Archdiocese of Philadelphia, is charged with one count of conspiracy and two of child endangerment for allegedly failing to remove two priests despite signs they might abuse minors. Brennan, 48, faces one count each of attempted rape and endangerment.

The judge and lawyers debated the next step, then called the jurors into the courtroom. They filed slowly to their assigned seats, some with eyes cast downward, one or two with arms folded.

Judges normally take a hands-off attitude once a jury begins deliberating so as not to coerce a verdict. But when a jury says it is deadlocked, the judge may give a standard instruction urging jurors to reexamine their positions and consciences and keep deliberating to try to reach a verdict.

"If, indeed, you don't reach a verdict, the case may have to be tried all over again," Sarmina said.

She cited the cost and resources of retrying what has been a three-month trial, but also said that should not be a deciding factor in reaching a verdict. She told them there was no reason to believe any other jury would be better-suited to resolve the case.

That much of the charge was standard. But then Sarmina added her own addendum, offering to help them through the impasse, if possible.

The judge offered to reread her charge, or legal instructions, and give additional guidance.

And — over strong objections by Brennan's lawyer, William J. Brennan (no relation) — Sarmina offered to reconsider the jury's request to rehear trial testimony from the man who said Brennan tried to rape him in 1996, from the accuser's mother, and from another alleged abuse victim. Sarmina had denied that request last week, saying such a read-back could take days.

When the jury returned to its anteroom, Brennan's lawyer immediately moved for a mistrial, accusing the judge of improperly inserting herself into the deliberations: "That was not a Spencer charge — that was a Sarmina Spencer charge. You, in effect, made yourself the 13th juror."

Brennan made it clear he would use Sarmina's decision as an appeal issue if his client was found guilty by the jury.

"I say, take this verdict now — good or bad — and let's wrap this up," Brennan added.

Alan J. Tauber, one of Lynn's attorneys, also objected to the judge's offer to reverse her earlier decision and reread the testimony the jury requested.

"I'll take three days to read it if that's what's holding them up," Sarmina replied. "It's better than redoing the whole trial."

Assistant District Attorney Patrick Blessington supported the judge's decision: "I said all along, let them have what they want."

Contact: jmartin@phillynews.com