The attorney for an Army non-commissioned officer charged with having sex with one of his female students in a Junior Reserve Officers' Training Corps program at a Columbia high school last May filed a motion Friday to reverse a judge's ruling that sealed part of a jury note after a mistrial was declared Thursday night in Howard County Circuit Court.
Attorney Thomas Morrow, who had asked Judge Timothy McCrone for the mistrial after a jury of eight women and four men informed McCrone that they were "hopelessly deadlocked" despite deliberating the fate of Sgt. Charles Ray Moore for less than four hours, said McCrone violated procedural rules by sealing part of the note.
Morrow believes the note contained information about how the jurors would have voted.
The mistrial followed three days of testimony surrounding an alleged sexual relationship between Moore and the then-17-year-old girl who was soon to graduate from Atholton High School. A new trial date has been set for Feb. 22. Moore, 52, was charged with one count of sex abuse of a minor under his supervision and two counts of fourth-degree sex offense.
In the motion, Morrow said that Maryland Court Rule 4-326 stipulates that "all such communication between the court and jury shall be on the record in open court or shall be in writing and filed in the action."
McCrone, a former Howard County state's attorney, read part of the note to Morrow and his client, as well as to Assistant State's Attorney Susan Weinstein, but said the remainder would be sealed. Neither McCrone nor Howard County Circuit Court Administrative Judge Diane Leasure was available for comment Friday. Through a spokesman, Weinstein declined comment.
Morrow said that not knowing which way the jury was leaning played into his request for a mistrial.
"Given the choice of having them deliberate and possibly eventuating a conviction, I would much rather try the case again," he said. "I would like to think it was 11-1 for acquittal, but I don't have any knowledge of that."
A female juror who asked not be identified said the panel was divided into three groups, with all sides holding hard-to-shake opinions.
In a telephone interview with The Sun Friday, the juror said some jurors felt from the beginning of deliberations that Moore was guilty on all charges, others thought he was not guilty, and a few believed there "was something" between Moore and his accuser but did not have enough evidence or testimony to convict him.
Despite taking several votes — "more than two, but not as many as 10," she said — "the way we started was the way we ended."
David Gray, an assistant professor at the University of Maryland law school who specializes in criminal law, said that in such "he said-she said" cases, the jury often cannot compromise. "Some people believe her, some people believe him. The chance of three camps triangulating to a single verdict is unlikely," Gray said.
While declaring a mistrial is not unusual, calling one as quickly as McCrone did is not typical, said Gray and other legal experts.
"It's all a matter of feel," Gray said. "If the judge truly thinks there is no point in making jurors sit in a room and yell at each other between death stares, then he or she will declare a mistrial. If they think that further deliberation may lead to a verdict, the judge will send them back or maybe even resort to an Allen Charge."
An Allen Charge is a directive given by a judge to jurors that states an individual could take into consideration what the rest of the panel is saying and change his or her vote without compromising its integrity in order to reach a verdict. According to Morrow, McCrone did not give this jury an Allen Charge.
Retired Baltimore City Circuit Court judge Joseph Kaplan said in an interview Friday that declaring a mistrial after only three hours and 15 minutes — a period that included a dinner break — "was quick," but he added that judges tend to have shorter cases retried rather than longer ones because the expense of retrying them is not as costly.
"No judge really likes to declare a mistrial," said Kaplan, who recalled declaring a mistrial only "two or three times" in his 34 years on the bench. "A judge has a sense of whether it's really hopeless."
Kaplan said that it is likely McCrone sealed the information about the direction the jury was headed — including the exact vote — because with "the subject matter that you're talking about, there are hard feelings on both sides, and you don't want to stir up too many more emotions."
Asked if this was the fastest he'd seen a judge declare a mistrial in his more than 35 years as a lawyer, Morrow said: "It's probably pretty close. I would say that most judges would decline to declare a mistrial after only three hours of deliberation for a case that took three days."
Kaplan said that a retrial favors the defense because it knows what witnesses — particularly Moore's accuser — are going to say.
In her testimony, the young woman, who is now 18 and a student at Howard Community College, said that she went into the supply closet with Moore for three straight days. However, she told her mother, school administrators, police and prosecutors that Moore had kissed and fondled her on May 13 and then had intercourse with her on May 14.
"The advantage of a second trial is that I have volumes of additional information in preparation for trial that I did not have in the first trial, particularly the sworn testimony of the complaining witness to cross-examine her with, so in effect I have the equivalent of a deposition that I can use to cross-examine her and that's a tremendous advantage in a criminal case," Morrow said.
Kaplan, who served as both administrative judge and chief judge for Baltimore City, agreed: "It's a much easier trial for the defense."