U.S. District Judge John Garrett Penn, defense lawyers for Mary Treadwell and her federal prosecutors are trying to decide how they can best gauge the progress that a jury is making in considering the 21 conspiracy, fraud, tax evasion and false statement charges against Treadwell.
The jurors, who early last night completed their 14th day of deliberations without reaching a verdict, asked Penn last Friday, the day after he sequestered them, whether he wanted a progress report on their marathon discussions. But the judge rejected the offer.
Now, however, with the jury's deliberations totaling 107 hours, a record length for a federal court case here, John W. Nields Jr., Treadwell's court-appointed attorney, thinks Penn ought to at least ask the jurors "whether they are still making progress."
The jury of eight women and four men said more than a week ago that it regretted taking so long to reach a verdict, but never has indicated that it is deadlocked, that it needs clarification of any of the evidence in the complex case or that it wants courtroom testimony read again.
As a result, Penn has been reluctant to interfere with the deliberations. He twice rejected bids by Nields to give new legal instructions to the jurors on how they should decide the central charge against Treadwell, that she engaged in a conspiracy to defraud the federal government and the impoverished tenants at the Clifton Terrace apartment complex.
Penn, in a bench conference Monday with Nields, Assistant U.S. Attorney William D. Pease and other lawyers in the case, said he had "an intuition, a feeling, which is probably worth absolutely nothing" that the jury might return a verdict yesterday.
As a result, he said Monday he wanted to wait one more day before deciding whether to inquire about the jury's progress or even, as Pease suggested, to give the jury the so-called Allen charge, a legal instruction usually given only to deadlocked jurors urging them to reconsider their viewpoints on a case and to again try to reach a verdict. The instruction can be given to a jury that has not indicated it is deadlocked.
Last night, Penn sent the jurors back to their hotel without resolving what to do. He scheduled a hearing today on the issue.
Several criminal trial lawyers who practice in federal court here say it is unusual that Penn has allowed the jury to deliberate as long as it has without asking for or accepting a progress report. Some trial judges ask for progress reports after a day or two of deliberations, the lawyers said.
In his comments to Penn on Monday, Nields said the length of deliberations "is an abnormal period of time, more than abnormal." He said that "at some point it is appropriate . . . for Penn to inquire . . . 'whether you are still making progress . . . . ' I think the time has come." Nields said it would be inappropriate to give the Allen charge if the jury did not indicate it was deadlocked.
Penn said that asking for a progress report "is something that we can think about."