NEW YORK (August 27, 2007) — Today, the U.S. Court of Appeals for the Second Circuit determined that the criminal retrial of McDermott Will & Emery client Michael DeGennaro was barred by the Double Jeopardy Clause of the Fifth Amendment. This is the first time the Second Circuit has ever reversed a mistrial declaration by a trial judge based on jury deadlock.
The battle in the Second Circuit began after a seven week securities fraud and conspiracy trial in the Eastern District of New York involving three defendants. The case involved allegations that company executives from Symbol Technologies, Inc., the world’s largest manufacturer of bar code scanners and related wireless technologies, filed false and misleading financial statements designed to meet Wall Street expectations. In a bizarre twist, however, the trial judge declared a mistrial before the jury announced its verdict following a jury note indicating “a deadlock” of sorts had been reached after only three days of deliberation. The scope of the deadlock was not described.
The McDermott team opposed the mistrial and repeatedly urged the trial judge to inquire if the jury had reached a verdict as to any defendant on any count. The judge repeatedly denied the request to make any such inquiry. After the jury was informed of the mistrial, the jurors promptly alerted counsel that its deadlock related solely to one count and one defendant, and that it had reached a verdict of “not guilty” on all other counts, including all those against Mr. DeGennaro. As a result, the McDermott team asked the trial judge to recall the jury to allow it to return the verdicts it had reached, but the trial judge refused and adhered to his decision declaring a mistrial.
The Second Circuit, in its ground-breaking ruling, concluded that while a trial judge has broad discretion in electing what steps to take to assure that a jury is genuinely deadlocked, it does not have the discretion to take no steps, particularly when a jury’s note is ambiguous. The result of this decision is that the government is barred from re-trying Mr. DeGennaro, bringing to a successful conclusion this four year battle.
The McDermott trial and appellate team was led by New York partner Michael S. Sommer, and included Eugene I. Goldman, Daniel N. Jocelyn and Laura M. Kidd.