As the Fieger trial goes into a new week of jury deliberations, with Gerry Spence not getting any younger and likely wondering how he’s going to hang up his spurs if he doesn’t pull an Imelda out of his 10 gallon hat, Norm Pattis raises the spectre lurking in the background:  The dreaded Allen Charge.

At some point this week, the jury may well report that it cannot reach a verdict. United States District Court Judge Paul Borman will then pull out his book of jury instructions and read the so-called Allen charge, in effect, inviting jurors to reconsider their views in light of the conscientiously held opinions of their peers. There will be no invitation to surrender to the majority, simply because the majority has more votes. Jurors will be told that each must be persuaded. But they should listen to one another.

I disagree with Norm.  I bet Judge Borman has his Allen Charge in hand at the ready, just waiting to pounce.  The Allen Charge doesn’t get pulled out until the jury sends back the deadlock note.  This is the one where they tell the judge that they have tried and tried and tried, but can’t agree on a verdict.  They are tired.  They are often angry with one or two of the jurors, who just don’t “get it.”  The majority of the jury believes with all their heart and soul that they have struggled to fulfill their duty.  It’s just not going to happen.  They have given up.

Then they get the charge.

“Members of the Jury:

I’m going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I would like for you to consider as you do so.

This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.

Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.

You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.”

This charge plays to a jurors sense of democracy, that majority rules.  Its purpose is to force the holdouts to capitulate to save the government from the expense of trying the case again.  There is nothing more antithetical to the concept of a unanimous jury of twelve than to tell the one or two who don’t “get it” that they are losers, failures and screwing up the deal. 

After the Allen Charge, the jury returns to their room to “continue their deliberations.”  For a normal person, who is holding ten or so others hostage, the pressure is unbearable.  They have lives waiting for them.  There are children who are hungry.  There’s a spouse to contend with. 

Two words have always summed up the Allen Charge to me:  dinner reservations.  Assuming a reasonable juror with no ax to grind, by the time the deadlock note comes in, they have tried.  The majority has explained, cajoled and pleaded with the holdout to change their mind.  They have gone through all twelve steps, invoking everything from Gandhi to God in their effort to convince, and come up empty.  The holdout stood firm.  The groups exhales as one, and the decision is made that they can no longer bear to face another minute in that room together.  The note is sent, believing that they have done their duty to the best of their ability, and but for the holdout, justice would be done.

Now, they’re back.  Scolded by the judge for having failed, read some infantile script about “honest beliefs” that should be reconsidered in light of the fact that a majority believes you’re a moron and sent to the corner like the schoolroom dunce, it feels as if it will never end.

Dinner reservations.  My belief is that this is the straw that will break the camel’s back.  The holdout need only have dinner reservations to change his vote and end the pain.  Before the Allen Charge, it was a matter of right and wrong.  The holdout did so for truth, justice and the American way.  Now it comes down to dinner reservations.  Should he stay in that room, fighting with this angry mob, or just give in to the will of the majority?  Should he make the other eleven sit there, angry and frustrated, when even the judge has told him that he’s supposed to listen to the majority?  It will take nothing more pressing than dinner reservations to change everything.  It’s not worth the fight.  Maybe they’re right.  If I don’t give in, we’ll be here forever.  Then I’ll miss my dinner reservations.  Is it worth it to me?

The difference between a verdict and a hung jury comes down to dinner reservations.