Next, the dissent argued that the trial court judge had a duty to honor the defendant's request for a partial verdict prior to the mistrial, and in the alternative, there was no manifest necessity for granting the mistrial, (89) To support requiring trial judges to offer partial verdict forms on the unanimous greater charges prior to granting a mistrial, the dissent pointed to the public policy considerations of protecting a defendant from the situation of receiving less protection under the Double Jeopardy Clause by virtue of living in an acquittal-first state, where a jury has to acquit on the greater charges before it must deliberate on the lesser charges.
In contrast, other states, such as Arkansas, prohibit the use of partial verdicts and find that this practice does not offend the Double Jeopardy Clause.
Those who find themselves in states that allow for partial verdicts are at a much greater advantage than those who are not.
The reasoning supporting the Court's holding did not take into account the process of jury decision-making, and the holding creates a disparity in the rights afforded to those in acquittal-first states that do not allow partial verdicts in contrast to defendants situated in states that do.
Judge Michael Mukasey accepted their partial verdict and ordered them to resume deliberations this week on Swiss Re's coverage.
"This is a partial verdict," said Howard Rubenstein, a Silverstein spokesman.