Jurors were deadlocked on some charges in Spokane’s bombing and bank robbery trial Tuesday, but they agreed to continue deliberating at the judge’s urging.
A year to the day after the first Spokane Valley bombing and robbery, 11 jurors were at odds with the 12th over eyewitness testimony and the legal term “reasonable doubt.”
Tuesday marked the third full day of deliberations.
“We have one juror who doesn’t seem willing to listen to all the rest,” the jury foreman, a Spokane insurance agent, wrote in a note to U.S. District Judge Frem Nielsen.
After two separate hearings with prosecutors and defense attorneys to discuss the problem, Nielsen ordered the nine-man, three-woman jury back to work.
While acknowledging the potential for a hung jury on some of the 12 counts faced by three North Idaho men, defense attorneys refused to make predictions.
“You could just read a thousand things into it at this point,” said attorney John Rodgers.
Deliberations will resume this morning. Verne Jay Merrell, 51, Robert S. Berry, 42, and Charles H. Barbee, 45, are charged with bombing Valley offices of The Spokesman-Review, Planned Parenthood and U.S. Bank, and twice robbing the bank last April 1 and July 12.
The white separatists also face four felony charges stemming from their Oct. 8 arrest in Union Gap, Wash., when they were caught driving stolen vehicles and carrying illegal hand grenades and machine guns.
The suspects have admitted those charges, but contend three other men were involved in the Valley crimes.
On Tuesday, it wasn’t clear which of the charges jurors were struggling with. It also wasn’t clear whether the majority favored convicting or acquitting the defendants.
There’s likely little mystery, however, about the jury’s focus: Merrell, the only defendant to testify during the trial.
Jurors told the judge they were getting hung up on eyewitness testimony, but no eyewitnesses connected Berry or Barbee to the crimes.
Prosecutors contend those two wore knit masks, gloves and goggles, and military-style parkas or ponchos.
Five prosecution witnesses said they saw Merrell, 51, driving a get-away van after the crimes. And a defense witness placed him in Sandpoint shortly before the second bombing and robbery.
News about the deadlock frustrated Merrell’s attorney, Aaron Lowe.
During the trial, Lowe had tried to call a memory expert to testify about the value of eyewitness testimony. The judge wouldn’t allow it.
“He (the expert) could have really been helpful,” Lowe said. “He could have offered guidance to help them deal with the questions they have now.”
After listening to arguments from attorneys Tuesday, Nielsen referred jurors to four sections of their jury instructions. Those sections explain what is meant by “reasonable doubt,” deal with the credibility of witnesses, offer guidance on eyewitness testimony and remind jurors to make up their own minds.
But a few hours later, the jury was still stuck.
In a second note to Nielsen, the foreman asked if jurors were allowed to reach verdicts on some counts, but not others.
They can do that, Nielsen said, but he urged them first to review the evidence and reconsider their positions. He asked jurors to notify him in writing later if they remained hopelessly deadlocked.
Jurors quit for the night at 5 p.m.
Prosecutors have declined to comment until after the verdict.
But defense attorneys admitted deliberations in the month-old trial were hard on their nerves.
“Are they stuck on particular defendants or particular counts? Who knows?” Rodgers said. “We agree you can guess yourself silly.”
If convicted of all counts, Barbee, Berry and Merrell face life imprisonment and up to $3 million in fines.
If the jury can’t reach a verdict on any of the charges, prosecutors likely would retry the case.
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