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Hours before a mistrial was declared in the capital murder trial for Billy Chemirmir, a state district judge issued an Allen charge to jurors in hopes they’d reach a verdict.
Also known as a “dynamite charge,” the instruction is given to jurors who are struggling to come to a unanimous decision. Experts say an Allen charge is meant to serve as last effort to avoid a retrial.
Here’s what you need to know about an Allen charge.
What’s an Allen charge?
The Allen charge is named for the 1896 Supreme Court case Allen vs. United States, which found that a judge can issue jurors an instruction intended to avoid a hung jury. The defense and prosecution both have the right to ask a judge to issue an Allen charge.
George Ashford III, a Dallas defense attorney not involved in the Chemirmir case, said the charge usually comes only after jurors have expressed multiple times that they are deadlocked.
In the Chemirmir case, the jury sent three notes to State District Judge Raquel “Rocky” Jones to say they could not reach a decision before she issued the charge.
“This note [the Allen charge] kind of breaks it down and explains to them that no other jury theoretically could do any better than they would do,” Ashford said. “No other jury would hear anything different than they would hear, so please go back and reach a verdict.”
Ashford said that, most of the time, deadlocked juries have more people for a guilty verdict than not guilty.
The jury in the Chemirmir case was deadlocked 11-1, but jurors didn’t say whether the 11 were in favor of a conviction.
How long will a judge wait?
Robbie McClung, a McKinney defense attorney not involved in the Chemirmir case, said that, while it’s not written in the law, judges usually let juries deliberate for at least as long as they heard evidence before declaring a mistrial. If a jury hears testimony for two days, a judge will let them deliberate for at least two days, for example.
“If they can’t reach a decision in the time tat it took to have the evidence presented, then they’re not going to reach a verdict,” said McClung, who also served as a prosecutor in Dallas County for eight years.
In the Chemirmir case, the jury deliberated for about 11 hours over two days after hearing about 3½ days of testimony. McClung said the Allen charge may have been issued earlier because the jury sent the judge multiple notes about being deadlocked.
Why is an Allen charge sometimes controversial?
Most defense attorneys don’t like Allen charges, McClung said. Some consider them prejudicial because of the pressure they can put on juries.
“If the jury’s hung, then the jury’s hung,” she said. “Putting pressure on them to come to a resolution is not what we’re supposed to be doing. They’re voting their mind.”
But a deadlocked jury resulting in a mistrial can be beneficial to both parties, said Brian Owsley, an associate law professor at the University of North Texas College of Law.
“From a defense attorney’s perspective, it’s not an outright win in so far as you’re not getting an acquittal, but it can assist,” he said. “They get the benefit of seeing how the prosecution is going to present their case the first time. They may be able to defend it even better the second time, maybe get an acquittal, maybe get more people to a deadlock.”
At the same time, Owsley said, prosecutors get to hear, and learn from, the defense’s arguments.