A Manhattan jury deadlocked Friday on a rape charge against Harvey Weinstein, the disgraced Hollywood mogul who became a central figure in the #MeToo movement.
Friday was the second time a jury failed to reach a verdict on this single count, which alleged that Weinstein raped Jessica Mann, a hairstylist and actor who has publicly consented to her name being used. Mann testified that she and Weinstein, who was married at the time, had a complicated sexual relationship and that he forcibly assaulted her in a Manhattan hotel room in 2013. Weinstein’s lawyers argued during the trial that the sex in that hotel room was consensual.
That’s two hung juries — for the same charge. Same evidence. Same defendant. The prosecution has not yet indicated whether it will seek a third trial, but for prosecutors, a mistrial often functions as a comma even when it ought to be treated as a period.
A mistrial often functions as a comma even when it ought to be treated as a period.
Indeed, a hung jury is the law’s stealthy exception to one of its most fundamental principles: that no defendant will be asked to answer for the same crime more than once. The constitutional protection known as double jeopardy attaches only when a jury reaches one of two concrete verdicts: guilty or not guilty. When jurors cannot unanimously agree, a mistrial is declared, leaving the prosecution free to try the case again — and get a second, third and even fourth bite at the same apple.
In every criminal case, the burden falls on the state to prove guilt beyond a reasonable doubt — that is, to leave each and every juror firmly convinced. As a former criminal defense attorney, I have arrived at a firm conviction of my own: A hung jury should be treated, under the law, as a “not guilty” verdict.
The notion that hung juries should be treated as “not guilty” verdicts is by no means a defense of Weinstein or the vile acts he has perpetrated against many women. He has been convicted by unanimous juries of multiple sex crimes across two states and will likely serve out the rest of his days in prison. But the moment we negotiate civil liberties based on which people we find sympathetic or which ones we find repugnant, the system falls apart. Weinstein should have been found not guilty on the hung charges — not because of any rosy portrait of virtue, but because there was doubt lingering behind that jury room door about that charge, which the jury must consider in isolation from its other verdicts. A person can be guilty of one thing, and not another. Nuance is the friend of scrutiny.
There is no greater safeguard against wrongful conviction than the unanimity requirement of the American criminal jury. Rarely do juries reflect a true cross-section of society,ar or the backgrounds of the defendants whose fates they decide — yet the concept endures for good reason.
If 12 strangers can lay their eyes on the same facts, round out one another’s inherent biases and arrive at a shared verdict, then due process has been meaningfully pursued. But what “Law & Order” and other crime shows rarely demonstrate is that a “not guilty” verdict is not always a heartfelt exoneration; it is a procedural answer to the fundamental question ,“Did the state prove it?” If even one juror will not convict, then the state did not. A simple majority does not get to shackle a man, even if that man’s name is Harvey Weinstein. Yet our system rewards the state’s failure, allowing a hung jury to clear the way for a do-over. Second chances are for prosecutors. They are seldom for defendants.
Championing double jeopardy protections for hung juries is not a betrayal of Weinstein’s survivors. It is a framework that acknowledges feminism as a bedfellow of criminal justice and one that recognizes that it’s not the rich and powerful who are harmed most often when we abandon the presumption of innocence. To the contrary. Those who are caused the most harm are the poor and disadvantaged.
Second chances are for prosecutors. They are seldom for defendants.
Benjamin Franklin is credited with writing that it is better for a hundred guilty persons to escape than for one innocent person to suffer. Curtis Flowers is proof of what happens when we forget that. Flowers, a Black man from Winona, Mississippi, was tried six times for the quadruple murder of four employees of a furniture store in that town. The problems with the case were many. Investigators never found the murder weapon used in the slayings. The state and defense are given opportunities to challenge potential jurors from being seated, and over the course of all six of Flowers’ trials, the prosecutor used 41 of his 42 challenges to exclude Black jurors.
Just two of the six trials had a jury with more than one Black person, and both ended in hung juries. Those results should not have been treated as not procedural hiccups, but as full-throated answers — yet the law refused to honor them as such. The state tried the case over and over again until it found a jury that would convict. Flowers spent 23 years in prison before all the charges against him were dismissed.
That is what it can cost when we treat a hung jury as merely an inconvenience rather than a definitive answer that the state hasn’t proved its case. Weinstein’s juries have spoken on the Mann case — twice. And yet prosecutors haven’t indicated that they are listening.
Madeleine Lippey
Madeleine Lippey is a former public defender, trial attorney and writer based in New York City. She is a graduate of Stanford and Georgetown Law and an advocate for reproductive, economic, racial and criminal justice. Opinions set forth in her articles are made in her individual capacity, not as an employee of any public defender office or agency.