Day 4 of McIver deliberations: How long can juries debate?

Jurors in the murder trial of Tex McIver wrapped up deliberations Friday without a verdict for the fourth day in a row — for a total of more than 22 hours of debate so far.

That’s an eternity for the lawyers trying the case, of course, but even attorneys watching the trial from afar say four days of deliberation is, indeed, unusually lengthy.

After initially telling the court they wanted to work later than their self-imposed 4 p.m. cutoff time — usually an indication that a verdict is close at hand — the jurors decided at 4:02 p.m. to break for the day without reaching a consensus. The decision came as a surprise, since just two days before, jurors appeared to have almost reached a verdict: they asked the judge whether they could convict McIver of influencing witnesses if they acquitted him on the murder charges.

Ken Hodges, a former district attorney for Dougherty County, said in most trials in which he was involved, the jury deliberated for a day or less. He even had one verdict returned within 15 minutes.

“Typically, juries come back in a much shorter time than what this jury has deliberated so far,” he said.

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For Lawrence Zimmerman, the criminal defense lawyer who represented in the wife of Ross Harris in her divorce from her husband, who was convicted of killing their child, the lengthy deliberation bodes well for McIver. He said there’s an old adage lawyers follow: it takes longer for a jury to acquit than to convict.

“You don’t go four days and then convict someone,” Zimmerman said. “Definitely, people are hanging one way or the other. They’re not convinced of the evidence.”

But while attorneys agree guilty verdicts tend to come back relatively quickly, deliberation length and verdict don’t always appear to be correlated. Ross Harris, who was tried for murder in 2016 over the hot-car death of his toddler son, Cooper, was found guilty after four days. But in the retrial of Hemy Neuman, who was convicted that same year for killing his mistress’s husband, the jury deliberated for just three and a half hours.

Bruce Morris, a criminal defense lawyer, said it’s ultimately impossible to know what’s going on in the jury room during those grueling hours.

“Some people thing the longer they’re out there must be dissension and one or more jurors are intractable,” Morris said. “Others say it means they’re headed toward a compromise verdict. And there are some who think it indicates this is an intelligent jury that needs time to sift through all the evidence and analyze all the issues.”

Ken Hodges, attorney for Sen. Don Balfour, R-Snellville, gives closing arguments on December 18, 2013. Hodges said deliberations in the Tex McIver case have lasted longer than they do in most cases. BRANT SANDERLIN /BSANDERLIN@AJC.COM (BRANT SANDERLIN / BSANDERLIN@AJ)

Juries can’t debate forever, though. If a jury doesn’t appear to be close to a resolution, Hodges said the judge can give what is known as an “Allen charge,” an instruction meant to dislodge deadlocked jurors and encourage them to come to an agreement. It’s the judge’s way of putting pressure on the jury to avoid a mistrial.

“What the judge will say is, ‘You’ve heard three weeks worth of evidence, and nobody’s in a better position to decide this other than you. I really need you all to buckle down and decide it,’” Hodges said.

If the judge hasn’t given an Allen charge — and Fulton County Superior Court Chief Judge Robert McBurney has not — that’s usually a sign a verdict is close, Hodges said. 

McBurney told the court Friday the jury hadn’t given him a note asking what to do if they become deadlocked, but if that happens, Zimmerman said the judge will likely give the charge. And if he does, the defense will probably object.

“You don’t want them to be forced to make a decision,” Zimmerman said.

Fulton County Chief Judge Robert McBurney speaks with jurors Friday, the nineteenth day of the McIver trial. ALYSSA POINTER/ALYSSA.POINTER@AJC.COM (The Atlanta Journal-Constitution)

However, if the jury remains deadlocked, the judge can also ask whether they’ve come to an agreement on any of the counts in the indictment. Those counts can be resolved, then, and a mistrial declared on the rest.

In the meantime, though, the case is out of the lawyers’ hands, and all they can do is anxiously wait. And that waiting period, attorneys said, can be awful.

Ed Garland, one of Atlanta’s most prominent defense lawyers, said he knows all too well what it’s like waiting on a jury. And waiting. And waiting.

Years ago, during a fraud trial in Jacksonville, the jury deliberated for 23 days, said Garland, who works with two of McIver’s lawyers, Don Samuel and Amanda Clark Palmer.

On the 23rd day, a fight broke out between two jurors in the jury room, Garland said. A mistrial was declared and Garland’s client was later allowed to plead guilty to a misdemeanor.

“It is miserable,” Garland said about waiting on a jury. “It’s hard enough if it’s just two days. My experience is, for the lawyers, the uncertainty and anxiety make effective functioning on other matters very, very difficult. You can’t keep your mind focused.”

For Hodges, waiting on the verdict brings up a lot of self-doubt.

“What goes through your head is ‘what did I not present that I should have presented?’” he said. “In a case like this, the stakes are so high that it’s hard to go on and do other work.”

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But while the waiting period is nerve-racking for all of the lawyers involved, Hodges, who has been both a prosecutor and a defense attorney, said the experience of waiting is different for lawyers on opposing sides. The personal pressure is much greater on the defense, he said.

“The state prosecutor isn’t representing the person whose liberty in criminal cases is at stake,” Hodges said. “And certainly, if you believe in the innocence of your client, you’re always anxiously awaiting because the stakes are very high.”

So how do lawyers cope with the stress of waiting? By learning to pace, “and pace and pace and pace,” Morris said. “Because you really can’t focus on anything else.”

In the end, though, Hodges said what both sides ultimately want is justice for the victim — even if that means consequences for the defendant.

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