Issue#
OCTOBER 23, 2009

After a full day of deliberation Friday, the jury in the trial of ex-judge Herman Thomas could come to no conclusions and was released for the weekend by Special Judge Claud Neilson.

The jury twice asked questions concerning points of the judge's instructions, delivered to them Thursday, including having the judge re-read his entire list of instructions over again. Still, despite a seeming flurry of activity concerning Thomas and his attorneys toward the end of the day, Friday ended without a decision.

"It's like trying to pick a wife out of a whorehouse," defense attorney Robert "Cowboy Bob" Clark said outside the courtroom after the jury was released for the weekend. "They can't seem to come to a decision. I came to one right away. They say they're hung."

Lead prosecutor Nicki Patterson didn't agree with Clark's assessment that the jury is hung, or can't come to a unanimous agreement.

"No one has polled the jury or taken a vote. I'm not sure he (Clark) knows. No one does," Patterson said.

She said the length of time the jury has been deliberating - about 10 hours total by Friday's end - indicates the jury is taking it's duty seriously and giving careful consideration to the more-than 20 charges facing the former Mobile County Circuit Court judge.

Originally Friday morning it seemed the jury wanted more detailed instructions on the definitions of Assault in the Second Degree, but Neilson ended up going over the whole list of instructions again. Later in the afternoon, they asked for a more detailed description of Attempted Sodomy, which Thomas is accused of in the case of the first alleged victim to testify in the trial.

Both defense and prosecution attorneys expressed confidence the case was going well, although the always-brash Clark still predicted total victory for his client.

"I'm not concerned about nothing," Clark said when asked if he was concerned about the length of time the jury has been out.

Patterson wouldn't go that far, saying only that sending the jury home over the weekend is always something that can make a prosecutor worry the case could lose momentum, but it's impossible to tell.

Clark said if the jury comes back in Monday and is still hung, Neilson will give them an Allen Charge, otherwise known as a "Dynamite Charge," that will instruct them to go back in and stay until they have a verdict. Patterson again disagreed with Clark's analysis, saying he had been the one to suggest that to the judge, not the other way around.

If the case is ultimately hung, it would be declared a mistrial and could be retried.

The court will reconvene Monday at 9 a.m. and deliberations are expected to begin again then.