The Second Trial

Niagara Falls, New York

February 26 - April 2, 2001

View from the Niagara Falls, New York, Courthouse

That bell-topped tower across the Niagara Gorge from the courthouse in Niagara Falls, New York, is a casino. Experienced gamblers know that at casinos, the deck is stacked in favor of the house, whether the deck is of cards, dice, or fruit. In the criminal justice system, the deck is traditionally stacked against the government. The adage is, Better a guilty man go free than an innocent man be found guilty.

Most of us find this risk acceptable, partly because we never expect to face it personally. And -- if we do face it -- we believe the rules will hold and that the outcome of a criminal trial will match truth.

The jury system is based upon similar convictions. We assume there is fair play in jury selection, that the resulting jury actually reflects the community's make-up. We further assume that jurors with their much-vaunted common sense can see through chicanery -- while at the same time, we bolster this belief with penalties for interfering with juries. And -- we protect juries during deliberations by sequestering them -- at least in New York State.

We do not expect -- and hopefully rarely encounter -- open assaults on our most closely held principles governing criminal proceedings. We are aware, of course, that some people do take advantage of the system and turn it on its head for their own advantage.

Prosecutors and defense attorneys alike understand that a criminal proceeding is a battle that begins long before opening arguments in a trial. Attorneys on both sides of a prosecution are prone to say that a trial can be won or lost well before opening arguments via pre-trial hearings involving the use of search warrants, defendants' statements, and other investigatory products.

In People v. Annette Montstream, several days of Huntley Hearings carried out over a period of many months, led to a judicial determination that her signed police statement was voluntary and would be admissible at trial. At that point, Annette pled guilty to lesser charges (than Second Degree Murder) and agreed to testify against her alleged co-conspirator. By law, testimony of one conspirator against another is insufficient proof against the defendant. The testimony of the co-conspirator must be backed up with other credible evidence.

While it could be argued that the defense attorney had gained control over the judge in the first trial before the first day of testimony, the same could not be said for the second trial judge.

Judge and defense attorney fought tooth and nail in the courtroom and presumably in chambers as well. Given many opportunities to respond to verbal abuse and disrespect, she did not find the abusive attorney in contempt. It appeared that the judge was unwilling to take any risk that her rulings could result in overturning a conviction that looked likely to occur. Despite dozens of defense requests for mistrial, the trial ground on for several weeks before the jury -- once again -- got the case.


Deadlocked Jury -- Instructions