Alan Dershowitz: Prosecutors should not re-try the Andrew Gillum case. Here's why.

Andrew Gillum — the former mayor of Tallahassee, who lost a close race to Ron DeSantis for governor of Florida — did two things that were quite rare in today’s criminal justice world:  He proceeded to a trial on federal criminal charges; and he won. (He did so with the representation of my former student, David Markus).

More than 95% of cases now result in a plea agreement, which would dismay our Founding Fathers who believed that the jury system was the best check on an over-zealous executive branch.  And of the small number of cases that do proceed to trial, the vast majority result in conviction. I know, because as an appellate lawyer, I generally become involved after the defendant has been convicted. More than 90% of criminal appeals are affirmed. So the odds on a successful outcome in a criminal case are infinitesimal.

But Gillum bucked the odds, went to trial, and got a not guilty on the top count — lying to the FBI.  The jury could not reach a verdict on the remaining counts despite deliberating for five days and being given the "Allen charge," which is also known as the "dynamite charge" (or colloquially as the Ex-Lax charge, for obvious reasons) because it so often results in blowing up a logjam in the jury room.  It has been reported, however, that the jury voted 10-2 in favor of acquittal, thus resulting in a hung jury.

If this were a civil suit, a 10-2 vote against liability would end the case in many jurisdictions.  Not so in the criminal arena. Although the double jeopardy clause of the Constitution does not prohibit the government from retying a defendant after a hung jury, it should only do so in rare circumstances.  For instance, if the jury is deadlocked 11-1 in favor of conviction and it turns out that the one holdout juror refused to consider the evidence, a prosecutor may be justified in going to bat a second time. 

Generally, however, prosecutors should have one bite at the apple, especially if that bite resulted in an overwhelming jury vote against him. A defendant should not have to defend himself multiple times on the same charge , since criminal trials are extremely taxing on the defendant in many different ways.  One way is financially.  While the government has unlimited resources to try a case over and over and over again, most defendants have limited resources that they exhaust at the first trial. They often have little left for a second trial.

Retrials also benefit the prosecution because they are able to prepare for the defendant's themes, cross-examination, and other trial tactics.

The prosecution should not retry Andrew Gillum where the jury was deadlocked 10-2 in favor of acquittal.  Gillum had the courage to proceed to trial.  The prosecution took its best shot to convict him and lost.  Not only did he beat back the false statement count, but it appears that the jury — a cross section of Northern Florida — overwhelmingly rejected the rest of the government's case. 

The government should not get a do-over in this situation and should accept the jury's clear message. Gillum should be allowed to resume his life, having essentially disproved the prosecution’s case.