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In event of 2nd mistrial of rabbi, judge may dismiss indictment

1985 ruling gives judges authority for dismissal

By John Springer
Court TV

Neulander, left, is shown with defense attorney Michael Riley during the retrial.
Neulander, left, is shown with defense attorney Michael Riley during the retrial.

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FREEHOLD, New Jersey (Court TV) -- The case presented by a prosecutor that Rabbi Fred Neulander hired a down-and-out private investigator to kill his wife was quite similar to the evidence considered by a jury that deadlocked last year.

So a question begs. What would happen if the seven men and five women currently deliberating Neulander's fate at retrial cannot reach a unanimous verdict?

For one thing, Camden County Judge Linda Baxter would likely declare a mistrial after satisfying herself that the jury's impasse was permanent.

But there's another twist. A second mistrial brought on by a hung jury would open the door for Neulander's defense lawyer, Michael Riley, to ask that the indictment be dismissed with prejudice.

In 1985, the New Jersey State Supreme Court ruled that judges can dismiss indictments if they conclude that after discharging a second deadlocked jury, the outcome would likely be the same after a third trial. Whether Judge Baxter would dismiss a case involving such a brutal slaying remains to be seen. Prosecutors would likely argue that this is a capital murder case, and that there is nothing more serious.

In November 2001, Baxter declared a mistrial after jurors in the rabbi's first murder trial told her they could not reach a decision. After 39 hours of deliberations over eight days, the jurors had reportedly voted 9 to 3 for conviction before becoming deadlocked.

Neulander's second jury has deliberated for more than 13 hours over two days and will return Tuesday to continue deliberations.

Neulander's first trial was declared a mistrial after the jury deadlocked from eight days of deliberations.
Neulander's first trial was declared a mistrial after the jury deadlocked from eight days of deliberations.

If the new jury cannot agree on a verdict, Riley would likely argue that the state presented basically the same case as it did last year and that without new compelling evidence, impaneling a third jury would accomplish nothing more than give prosecutor James Lynch three bites from the same apple. Both Riley and Lynch declined to comment.

"To my knowledge, there is no magic number," said Trenton-based attorney John Wefing, the Richard J. Hughes chairman in Constitutional Law at Seton Hall University Law School. "The general rule is that you can be tried a number of times. Once it becomes harassment or if the judge feels a new trial would be overkill, then the court will stop it."

In the case that affirmed the discretion of judges to bar multiple trials following mistrials because of deadlock, two juries failed to agree unanimously whether prosecutors proved that a defendant kidnapped someone from a bus stop at knife point in 1982 and then raped her. After the second mistrial, the trial judge granted a defense motion to dismiss the indictment with prejudice.

"We hold that a trial court may dismiss an indictment with prejudice after successive juries have failed to agree on a verdict when it determines that the chances of the State's obtaining a conviction upon further retrial is highly unlikely," the Supreme Court concluded in the 1985 decision.

The court further ruled that a judge dismissing an indictment after successive jury deadlocks must consider the similarity of the trials, the seriousness of the charges, the relative strength of the prosecution and defense cases, and other issues.

There is much speculation about the possibility of a second mistrial because of the nature of the case. The chief evidence against Neulander is the testimony of one of Carol Neulander's two confessed killers, Len Jenoff. The defense derisively referred to him as "CIA Lenny" for his habit of telling people that he was a former Central Intelligence Agency operative who tried, and failed, to kill Fidel Castro three times.



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