Behind Door No. 2, One Year in Jail

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A judge in Brooklyn was reprimanded by New York’s Appellate Division this week for sentencing a man to 11 months in prison for acting as lookout for an armed robbery — not because the sentence was too harsh, but because he (arguably) forced the defendant to play "Deal or No Deal" while the jury was deliberating.

At the end of one day of deliberation in People v. Nicholson, the jury told Justice Joel Goldberg that it was deadlocked.  It was 3:30 on Friday, and one juror had to be absent on Monday, so deliberations would be delayed three days if a verdict wasn’t reached.  Justice Goldberg told the jury to keep trying.  But he also had a proposition for Mr. Nicholson.

First, Nicholson could wait for the jury to return.  It might acquit him, or it might convict him, in which case he would face a minimum of five years in prison.  Or, the judge said, Nicholson could waive his right to a jury trial and accept the judge’s verdict: guilty on a lesser charge and one year in prison.  "I heard the testimony in the case," he told the defendant, "and in good conscience I do not have any trouble finding the defendant guilty of participating in the crime."  So.  Deal?  Or no deal?  Just then, the jury informed the judge that it had reached a verdict.  The pressure was on.

Nicholson was allowed to phone a friend, or at least a few minutes to talk to his attorney and his mom, but the judge then needed his final answer.  (Sorry for mixing my game-show metaphors like this.)  "I hate to say this is a game show," he told Nicholson, but "five minutes to four — I don’t know what to say but the options are yours. . . . I can’t keep the jury waiting much longer."

He took the deal.  The judge then conceded he was a little "uncomfortable" with what he was doing — normally a sign you should stop doing something — but said a deal was a deal.  In fact, he said "If I hear by word of mouth that the verdict is not guilty I am still going to sentence you to one year . . . I can always say this guilty verdict was based on time pressure rather than one really thinking it through."  Nicholson was sentenced to a year and served 11 months.

As you might expect, jurors said they would have acquitted Nicholson.  He appealed and eventually (long after Nicholson had served his sentence) the 2d Department court reversed, calling the bargain improper and coercive.  While it would have been okay to promise a "minimum sentence" in return for a bench trial, the court said, it was not okay to suggest to the defendant that the jury would likely find him guilty and to predetermine guilt and the sentence as part of the offer.

Judge Goldberg received a reprimand, the lowest-level rebuke possible, and the conviction will be removed from Nicholson’s record.