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Massachusetts prides itself on being a land of firsts – we claim the first free public school, first library, first abolitionist newspaper, and the first subway. We may also have been the first to institute a dynamite charge. In 1851, a jury in Judge Hoar’s court of common pleas informed the court that it could not reach a verdict. Judge Hoar then told the jury, amongst other things, that it was their duty to decide the case. He sent them back to continue deliberating after which they found the defendant guilty. On appeal, the defendant argued that this instruction was coercive. He lost. Commonwealth v. Tuey, 62 Mass. 1 (1851). This recitation by Judge Hoar became known as the “Tuey” charge to be administered to deadlocked juries.

[Okay – a little Judge Hoar rabbit hole here Ebenezer Hoar was a descendant of Roger Sherman (who signed the 1774 Petition to the King, the Continental Association, the Declaration of Independence, the Articles of Confederation, and the United States Constitution – Yahtzee!) so he came from a pedigree. He was elected to the Massachusetts State Senate in 1846. In 1849, he was appointed to the Court of Common Pleas (which seems a lot like Superior Court but maybe it was more like District Court – hard to say – it was the main trial court in any event). That is where he made this now very famous declaration about how juries need to convict or acquit (umm, they don’t – we’ll go there another time). Then he gets appointed to the Supreme Judicial Court in 1859 where he remained until he was appointed as US Attorney General by President Grant ten years later. Grant then seeks to appoint him to the Supreme Court of the United States, but the Senate rejects him. He is still Attorney General and an advisor to Grant in 1870 when Grant asks him to resign because he is not super into Reconstruction. He resigns and Amos Akerman was appointed to succeed him. Akerman was from Georgia (not really, he was born and raised in New Hampshire but moved to Georgia so he was considered a “Southerner” which is kind of funny because he was super duper pro-Reconstruction and prosecuted the KKK). Ebenezer then ran for Congress and represented the MA-07 District for one term after which he did not run again. But still, I like to think of him as the bulldozer of a judge who made a jury convict Mr. Tuey (of what? We. Don’t. Know. The opinion does not inform us of the crime) when at least one member had what I imagine were reasonable doubts about guilt. Good thing he never made it onto the Supreme Court, right? Nope. They are going down this path, too. See, Allen v. United States, 164 U.S. 492 (1896).]

For 122 years, it is unclear how many Massachusetts defendants were convicted following a “Tuey” charge. But, in 1973 – fifty years ago this week – the Supreme Judicial Court upheld a murder conviction for Hector Rodriquez who argued, inter alia, that the instruction to the deadlocked jury at his trial was premature and coercive. (Sidenote - pretty sure the correct spelling of the defendant's name is "Rodriquez", but the Mass Cases citation says "Rodriguez"). While the SJC affirmed his conviction, it also altered the “Tuey” charge (which is why we refer to it as “Tuey-Rodriquez”) to eliminate some of the most offending language. It deleted the part about how the minority opinion should basically yield to the majority and it neutralized the part about how juries always have to decide cases by an acquittal or conviction. Once again in firsts – at least one law review article considers Massachusetts to have the model dynamite charge. In my opinion, no matter how reformed this charge is, it is still an affront to the jury system.

It is unclear how many defendants have been convicted following a “Tuey-Rodriquez” charge where at least one member of the jury may have held a reasonable doubt as to guilt. This is especially true given the course of events over the last 50 years where more young people, more women, more members of marginalized communities, perhaps more “peers” of the defendants at bar are serving on juries which is supposed to provide a better, more democratized, cross-section of the community than juries of Peter Tuey’s day. So today if a jury deadlocks, is the administration of a “Tuey-Rodriquez” charge a means of silencing voices that fought so hard to be heard?

The right to a jury trial in criminal cases appears in the United States Constitution in Art. 3 Sec. 2, then again in the Sixth Amendment, and reverberates in the concept of due process of law in the Fourteenth Amendment. The trial by jury was one of the checks and balances on the legislative branch for establishing the crime, the executive branch for prosecuting the crime, and the judicial branch for providing the forum to hear the charges in open court. Having an impartial jury (or here in Massachusetts, a jury of peers) is central to that right. Serving on a jury is the one time regular people get to make important decisions where there is no question that their vote counts – unless they are intimidated and bullied into going along with the majority by being told to continue deliberating when they have already deliberated.

It's been 172 years since Commonwealth v. Tuey, 62 Mass. 1 (1851) and 50 since its reformed version in Commonwealth v. Rodriquez, 364 Mass. 87 (1973). Maybe once again, Massachusetts should flex its land-of-firsts muscles and let deadlocked juries hang up. If we want people to have faith in the court system, maybe we should start by respecting jurors by equating the value of hung juries along with acquittals and convictions.

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