Monday Morning Thoughts II: Why Isn’t a 10-2 Hung Jury Reasonable Doubt?


On Friday, a Yolo County jury deadlocked in a case where a county fair employee was accused of inappropriately “touching” a woman while he was helping to buckle her into a ride at the Yolo County Fair. The jury hung 10-2 for acquittal on the single misdemeanor count of sexual battery, as the two members of the jury holding out believed that Mr. Nelson’s action were intentional rather than accidental.

Judge Dan Maguire initially dismissed the charges, but later agreed to consider the State’s request for a retrial if the prosecution can produce additional evidence, specifically with regard to intent.

Willie Nelson worked at the Yolo County Fair in 2015.  The DA charged him with sexual battery after a female rider claimed he touched her in the vaginal area while assisting her in buckling her seat belt for a ride. Mr. Nelson contends the touching was accidental  However, the DA claims that he made inconsistent statements about where he touched her body when discussing the incident with police.

In our system, we require proof beyond a reasonable doubt in order to convict someone of a criminal charge. Part of the problem is that proof beyond a reasonable doubt is often a nebulous standard.

Indeed, in the jury instructions, the standard reads: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”

One thing that has always troubled me is how the system chooses to handle disagreements among jurors. If all jurors agree that there is proof beyond a reasonable doubt, then the defendant is convicted of the charge. If none agree, then the defendant is acquitted.

But in this case, ten believed he was not guilty and only two believed he was guilty. Is this split in and of itself evidence that there is reasonable doubt as to his guilt?

Judge Maguire seemed ready to dismiss the charges, citing his belief that the DA would not be able to prove the People’s case. However Deputy District Attorney Shelby Doyle requested a retrial, citing that a witness may be additional evidence with regard to Mr. Nelson’s intent.

She wants to be able to call an additional witness, a female fair employee who accused Mr. Nelson of exposing himself to her in a hotel room, then blocking the room’s exit and locking the door.

Deputy Public Defender Aram Davtyan argued that the court already ruled on the matter of admissibility of this evidence.  The court had found a lack of similarity between the fair incident and the alleged hotel room incident.

Judge Maguire agreed to the possible retrial if the if the DA can come up with additional evidence about the alleged events in the hotel room.

This comes close to double jeopardy, at least in spirit, but not in the true legal sense of the term.

This is a misdemeanor case and the defense argued that it would be inconvenient and costly for the defendant to return to California for additional hearings or a retrial. Mr. Nelson lives in Springfield, Missouri, and works at a fast food restaurant, thus traveling to and from California imposes an economic hardship on him.

It seems to us that the DA had a chance to prove the charges and couldn’t do so. By being granted a new trial, they would have a second shot at the well – something that the double jeopardy clause in the Constitution is supposed to protect against.

If this were a closer call, a retrial would seem more reasonable. Certainly, if only a few jurors held out for not guilty, then the prosecution would be justified, even obligated, to bring the case back. But at 10-2, this was not a call.

This is a misdemeanor case. The defendant is now out of state. It would seem that the prosecutor’s office should be more focused on more serious crimes.

Judge Maguire ruled that, without additional evidence, he will dismiss the case because he believes the result of a second trial will be the same as the first. The judge said there was not proof beyond a reasonable doubt that Nelson’s actions were intentional.

Judge Maguire granted the prosecution time to find the other possible complaining party.

We will find out more on February 18. From our perspective, this seems like a witch hunt and a fishing expedition. Captain Ahab has to catch his whale, but at what cost to our community? If Mr. Nelson is really innocent of this crime, isn’t this pursuit unwarranted?

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. ryankelly

    Because this is what they do.  They’ll retry this case until the defendent pleads to something in an effort to make it stop. The defense needs to get a definitive not guilty to avoid this.

  2. Eric Gelber

    The issue of non-unanimous jury verdicts is complex. Most discussion has involved whether (except in capital cases) convictions, rather than acquittals, should be permitted with non-unanimous verdicts—e.g., 11-1 or 10-2. One argument against non-majority verdicts (for conviction or acquittal) is that it would mean the majority would be less inclined to listen to the minority.  Another is that non-unanimous convictions are inconsistent with the reasonable doubt requirement (although the U.S. Supreme Court has disagreed).
    If a 10-2 vote for acquittal means there is reasonable doubt and the defendant should be acquitted, why stop there? Why wouldn’t 9-3 or 7-5 for acquittal also mean there’s reasonable doubt? Why not 6-6?

    The burden of proof is on the prosecutor. A non-unanimous jury verdict, regardless of the vote, means the prosecutor has simply failed to meet that burden. Deviating from California’s unanimous verdict requirement for acquittal can call into question the whole issue of whether less than unanimous verdicts should be allowed in criminal cases. I’m not sure we want to go there.

    1. The Pugilist

      I can see both sides of this argument.  On the one hand, even one hold out voter could be construed as failure to make the burden.  On the other hand, the other side could argue for majority rule.  I tend to believe that there is a consistent argument there, but see the danger as well.

    2. PhillipColeman

      Excellent summation of the primary issues for and against non-unanimous verdicts in criminal prosecutions. Nowhere else can you find resistance to desirable change in response to changing societal circumstances than the field of law. Think, “Separate but equal,” a Supreme Court ruling that oppressed millions of Americans for over half a Century.

      I’m on the side of clear majority (pick any decisive percentage that suits you) rather than unanimity. The case above would have decided by a jury the first time. Administrative advantages include the time burden of jury service would be reduced markedly and prospective jurors would be more willing to serve than what exists today. Court costs would go down as would time waiting to receive justice. Proponents of clear majority verdicts can cite the rare instance where both the defense and prosecution have benefit. Other states, I think, recognize non-unanimous verdicts in misdemeanor trials.

      A distinct majority by multiple persons is commonplace of how we are judged and judge for our actions and behaviors every day outside the courtroom. When we are “judged by our peers,” rarely is the judgment unanimous.

      Majority rule is used in civil court and works well.

      1. Miwok

        Also, a unanimous verdict means there is often malfeasance or incompetence on the part of one side or the other. Therefore, the Innocence Project and others try cases long adjudicated because of obvious cases like this.

        A Misdemeanor case? The guy has to pay his own way back and forth, under penalty of a more serious charge, or he gets extradited? While I or anyone else have not ignored the content, a possible sexual predator, if I substitute Speeding for this charge, would it go away after this first trial? Since it was not allowed, or maybe not mentioned, is this guy a habitual criminal that has not been caught?

        I am also aware, in today’s world how certain people would never do harm to another, and this includes voting to incarcerate another. That is why some jury members would never vote guilty for any trial. They may picture themselves as a victim instead of a juror, or have a child they substitute, difficult to say. This is not apparent during voir dire, nor would it be likely to be asked. Jury of their peers, indeed.

        The big mouths of jurors after a trial, writing books and being interviewed also makes it hard to vote their conscience.

  3. Tia Will

    The burden of proof is on the prosecutor. A non-unanimous jury verdict, regardless of the vote, means the prosecutor has simply failed to meet that burden. Deviating from California’s unanimous verdict requirement for acquittal can call into question the whole issue of whether less than unanimous verdicts should be allowed in criminal cases. I’m not sure we want to go there.”

    I find this to be a little more complicated still. One premise of our legal system is that the accused in presumed innocent until proven guilty. This premise means to me that the default should be innocent if the burden of proof beyond reasonable doubt has not been met. A 10-2 split for not guilty would surely imply that the DA did not meet this burden and that the DA should stand down having not met their burden of proof.

    1. Eric Gelber

      A 10-2 split for not guilty would surely imply that the DA did not meet this burden ….

      The same could be said of a 9-3 or 7-5 split for not guilty, or even an 11-1 split for guilty.

  4. Tia Will


    Right. Just a little reinforcement since this is so bewildering to me. I cannot fathom how the combination of the two principle’s:

    “Innocent until proven guilty” and “guilty beyond a reasonable doubt” do not add up to majority vote equals “innocent”, or at least “not guilty” for those who would parse words.


  5. hpierce

    Keep thinking of what Dad said… if he was accused of committing a crime… if he was innocent, he’d opt for a “bench trial”… if guilty, he’d opt for a “jury trial”… yet not sure I’ve heard of a “bench trial” in Yolo County… I think in this case, the defendant might have chosen one… or are both DA’s and PD’s looking for ‘job security’, where bench trials are never even considered?

      1. hpierce

        Interesting… when I was looking on the internet, it appeared that in many states (not California) the defense has the SOLE right to waive a jury trial… in CA you are correct, apparently… yet I saw that many states use 6-person juries for misdemeanors… perhaps CA should consider that…

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