Mistrial declared in Archer case; hung juries unusual, but do occur

By Thom Nadeau

A Yuba County jury declared itself hung, 7-5, Tuesday in the alleged child molestation case against Earnest Rex Archer, news reports indicated.

The bare majority favored a guilty verdict, the jury foreperson told Yuba County Superior Court Judge Julia Scrogin. Scrogin declared a mistrial.

The jury of 10 women and two men debated behind closed doors for four days. That was longer than the trial itself lasted, the Appeal-Democrat newspaper reported.

A former reserve deputy with the Yuba County Sheriff’s Department and narrowly unsuccessful candidate for Yuba County supervisor, Archer faced seven criminal charges altogether. The jury split different ways on the various charges, but the vote reportedly ran 7-5 on the most serious charges.

Archer is accused of molesting two foster children -- minor girls aged 11 and 10 – who lived in his Linda home.

Jurors reportedly voiced concerns that little hard evidence had been presented in the case. The jury heard no expert witness testimony and was left to balance the courtroom assertions made by the two girls and the adoptive mother of one of them and supportive good-character claims defendant’s relatives.

He waived his right to be re-tried within 60 and prosecution statements indicated that a retrial is not likely until sometime in September.

Archer told the judge he was waiving his right to a retrial within 60 days. A further hearing was tentatively set for September. At this time it is unclear whether the District Attorney will seek a re-trial.

According to several legal dictionaries a “mistrial” can be declared in two possible circumstances: 1) if the trial is conducted unfairly, “for example, because not all of the evidence is considered” or, 2) when a trial ends with no verdict is reached.

Hung juries and mistrials are rare, but they do occur.

The very same day a hung jury mistrial was declared in People v. Archer, a hung jury mistrial was declared in the Brooklyn (New York) Supreme Court murder trial of one Keith Phoenix, a 30-year-old man accused of beating an Ecuadorian man to death.

[Note: A "supreme court" in New York is the functional equivalent of a "superior court" in California.]

That jury hung on an 11-1 majority vote favoring a guilty verdict, the New York Daily News reported.

.When a jury split is that narrow, retrials are often sought. In cases such as Archer’s in which the margin is so wide, 7-5, the district attorney’s decision on whether and how to proceed is not as simple.

While hung juries are generally uncommon, for some defendants, they can be frequent. Take the multiple hung juries of the prosecutions against John A Gotti Jr., son of New York crime lord John A. Gotti.

In December, 2009, only five months ago, the New York Daily News reported that a fourth hung jury had been declared in the same case against the junior Gotti.

It's become John A. (Junior) Gotti’s favorite word in the whole world: Mistrial.

The second-generation Gambino boss heard it Tuesday for the fourth time in five years, beating yet another federal racketeering rap before heading home for a rollicking family reunion.

"It feels wonderful," said an emotional Gotti, who celebrated with hugs, kisses, tears and Chinese food after his release on $2 million bail. "I want to go home and see my children."

Gotti, who started his day in a cell at the Manhattan federal lockup, climbed into a white BMW hours later for the triumphant ride back to his $1.7million oyster Bay, L.I., mansion.

Fifty yellow balloons were tethered to the front gate of the home, where a catering truck pulled up shortly after the 3 p.m. mistrial delivered another stinging rebuke to prosecutors.

His wife, Kim, and their six kids waited inside.

Gotti junior had faced multiple federal racketeering charges. This mistrial puts him one mistrial ahead of his famed father, John “Dapper Don” Gotti.

The mistrial boosted Junior - who spent six years in prison on an earlier conviction - past his dad in courtroom successes.

John (Dapper Don) Gotti beat three cases before he was convicted and jailed for life on murder and racketeering charges.

The son said he felt his father was looking down in the days before the mistrial.

"How else can you explain it?" Gotti asked. "How rare is it for someone to fight a trial, a federal trial at that, and come out okay?"

While jurors said a fifth trial would be overkill, prosecutors wouldn't commit to giving up their relentless pursuit of the reputedly retired mobster.

by Tom Nadeau