Diogenes
1 account to rule them all
In New York state, it is a well established rule that a jury may not consider a lesser included charge unless it has acquitted on the greater charge. (Some jurisdictions do this differently.)
Once it was determined that the jury cannot reach a unanimous verdict on the greater charge, a mistrial should have been declared.
Also, I cannot find any authority for allowing a prosecutor to dismiss a charge after the case has been submitted to the jury.
New York law only allows a jury to be discharged without a rendering verdict when there is a mistrial or all parties consent.
Neither of these circumstances exist here.
However, I am not certain that the error will end up harming Penny.
That is because after mistrial, the prosecutor would free to refile the charges, but since the dismissal occurred after jeopardy attached, he cannot be charged again with manslaughter in the future.
Now, if the jury hangs on the lesser charge, he could only be retried on the lesser charge.
Of course, if Penny is convicted of criminally negligent homicide, this error will become an issue on appeal. The prosecutor’s move is obviously designed to obtain a compromise verdict after having gained some direct insight into the jury’s deliberations and realizing there was no chance of conviction on the greater charge.
Though I haven’t found any cases on point, this sort of gamesmanship strikes me as a due process violation.
