deadlocked in this case they had sent notes back at eleven am and then later on shortly after four pm on the third day of deliberation stating that they couldn't reach an agreement on anything and stating that they want to direction from the court the court received a note at eleven stating we are unable to come to a unanimous verdict for either of the play north of the defendant carolyn jones at three twenty four i requested a mistrial after having had the jury given an allen charge and about want to leaven pm that day because that this jury had been deliberating now for three days without any indication of a verdict on either count one thousand nine hundred eighty three political discrimination claim or on the equal protection claim that for carroll and i had a conference with judge pratt to find out what the defendants position was on that issue and he indicated that he would have to talk to mr jones to read to a mistrial then shortly thereafter judge magistrate judge tom shields called me and told read me this note we are unable to come to a unanimous verdict i do not see us ever agreeing with that language an emboldened one juror has a conflict and needs to leave at four thirty today and another juror with the sick child may not be able to attend on thursday please advise us where we go from here the judge told me i'm going to declare a mistrial the record shows he declared a mistrial the record shows that he thanked the jury indicating that this is a difficult decision sometimes people can come to agreements on issues and then he excuse them and discharge the jury counsel is there any case law or statutory law rules that determine bright line tell us that discharge constitutes the completion of the jury service now we've seen some of the cases that read some of the cases in the briefing you you have the closest analogous cases to this where a judge announces something similar to a discharge or an actual discharge and jurors begin to depart the courthouse or in some phase of departing or call back and they can of and analyze  you got to look at what is the integrity of the jury process here the jury leave the courtroom yes but we don't know where counsel which footnote is it in judge pratt's but not sixty thank you very much  there's going to be a mistrial then thirty minutes later i'm getting a telephone call from judge shields tell me they entered a verdict on count one where was there a factual record made of where the various jurors were when they were called back with siri the record made as to if and in to what degree any of the jurors discussed though either among themselves or with other person counsel now now your nose to judge smith or misleading i think because footnote sixteen says judge seals walk to the jury room and finding all jurors  found on the record footnote sixty never was on the council now the record is what was in the district court this is part of the record well read federal appellate procedure ten but let's not go there let's talk about reality don't you think that here judge saying i know he says he's not going to go buy it i got you on that but he says he found a momentary room well maybe he did but i don't know that because judge shields never filed anything with the court to verify what he's putting in footnote sixteen this record is due in terms of facts as to what happened in the jury deliberation is devoid of anything we don't know if they were in the jury room versus in the hallway versus one of them was in the bathroom during the rest of the trial was or somebody in the clerk's office that moved the jury from the courtroom to the jury room oh yeah they always have a big gate oh at least we have to surmise that there was somebody that that person was with them well i would assume so your honor but but you don't know that at the end we don't we don't know if any reporters dazed around stand in was there a hallway or i mean did you go directly from the courtroom to the jury room or how did that go we don't know i mean that's the problem we are we are sitting mr carroll's on the way home to do more and judge pratt isn't a moron i'm sitting in my office and moline illinois and we don't know what happened after he discharged the jury so no one no one you was anywhere near the courtroom at that time not at all not even informed that he was going to go inquire of the jury one of whether they reached a verdict or are you asking us to invalidate this process or would you and that a decision is made or not made here what you're allowing now is the judge to enquire when he had no knowledge that there was a verdict on either count those in the party have a sixth a else i agree and i mean i don't i don't know if it extends to civil cases your honor i don't know what you have a sixty minute right to a jury and civil case and right now and a few more rights under the fifth amendment and the in a criminal case but i'm talking about in a civil case so you had at least my rule footnote sixteen's information you had a resumption of the trial case and you didn't you didn't give us any sixth amendment cases or anything like that and no i concentrated more on this whole thing counsellors an issue a waiver because many places i only know missouri practice but you have a local lawyer set with the jury when you leave town or have to go to another case you have some local news it's an associate set there with the judge and you hear a lot of stories so true so there is only in that position there  waiver issue here to well just i don't know how we can waive when we were never given the opportunity to waive judge pratt made the decision to go back to morning and let judge shields take the verdict he never instructed us that you would need to be present in the court room and i assume the court excused you to go back to your office during deliberations oh yes and you agreed that they could take that verdict without you being present well no i didn't agree t unpleasantly i probably did but expressively let i mean that's the way we usually do it and when a civil case the bailiff calls you up and tells you what happened but but but i'm being told that this is a m unanimous verdict on anything so i got inconsistent verdicts you have inconsistent polling of the jury in the situation because before hand all twelve of them sad that they couldn't reach an agreement on anything so here time but i would like the court to look at the the marshaling instruction on the law which is the political discrimination one and what i have requested consistent with mt healy and with the wagner v jones decision and also the same decision instruction i had requested the language from this court to be added into the instruction and judge brack would not grant that and then he gave a business judgment rule instruction which was redundant at best and should have been given at all because carolyn jones was not the employer the university of iowa is the employer she actor and she got the benefit of the same decision instruction and now she's getting the second bite of the apple with the business judgment rule as i read the record there was of who are group of people who made this decision she was simply the now of pieces that write well that they think that that's what they want you to believe our theory was she could overrule them but regardless they took the position that she had to just vet validate what the faculty appointments committee and faculty as a whole did so to give the business judgment rule instruction in that contrary to their theory is improper in this situation and we believe that the failure to follow the law in that situation requires a new trial that you point out going your versus sprint a case we had about kind of like this but it was in a business setting but that this was sort of a business setting to to the judge no i did not ok by not asking more questions about that note enough to otherwise throw out what appears to be a valid verdict on count one and in this case the note was were unable to reach a verdict but that with he didn't poll on count ones into at that time he asked if that note accurate and they said yes it is and what the record shows is they got the case on october twenty second at four twenty at that point miss wagner's counsel waived the right to be present unless they returned and that evening which likely would be five o'clock five thirty if they returned that quickly they got it at four twenty from that moment on questions on the phone as in the record shows there were numerous questions ridgeley there were questions without a court reporter present i then asked for a court reporter and what we do know from the facts are ten twenty three they deliberate all deliberate all day long they have questions ten twenty four the second full day of deliberations they submit a question about equal protection they asked actually for a copy of the fourteenth amendment and the way they verdict form was count one was the first amendment claim count two was equal protection that's the fourteenth amendment question that day that question was in the morning then and the day of more on it became clear that they had more questions at three twenty four mr feeling or e mail to the court and request a mistrial i don't see the e mail right away because i'm not sitting at my computer screen waiting for a pop but at four o'clock we have a call with the court reporter at that time magistrate shields indicates that is his possible intention but possibly intention to declare a mistrial what do i think i said i would have to talk to my clients i had an individual capacity client and i had a university my own client that was at four pm i heard nothing again until the mistrial was declared i had not gotten back to the court that's true because i hadn't spoken to the clients i needed to we do concede there was a mistrial declared yes absolutely at at four thirty five well actually the record shows that you're in to the courtroom at four thirty one that's in the record this courthouse in davenport is secure is this building the jurors go out the back door that door is locked we cannot access these doors as lawyers without the bailiff or court attendant or marshal taking us into that back home with counsel you're getting giving us a lot of facts that aren't before the district court well i think you're testifying here but they are yeah and at the top of sixteen he says he's not going to sit or anything in this but note and anyway in any way i'm quoting him and conducting the analysis and deciding issues and then you find these things popping up in tech sort of like that you know they used to punch when you were a kid for viro out of the third circuit the jury was recalled after dismissal after dismissal discharged left the court room and they were called back to deliberate more in this case this record shows two m and after they have been dismissed and left the court room back i mean without did you agree not to be there while well the judge questioned the jury i mean they sent they were they were called back immediately so there's this two minute time period the pollie really it isn't inquiring into the jury's intent here they were pulled properly on is this your is your note accurate then judge sheild realized there were two counts and he he polled them were you able to reach a verdict and all the questions are are in the past tense and so are the answers we were on count one twelve said that so regardless of not sixteen and a disclaimer the record does show there's a two minute gap and there there are cases in our preferred talk about jurors actually being discharged and allowed to deliberate more and that didn't happen a lot of state cases are contrary to your position there are yes do you think that that relates perhaps to the difference in some a court houses some state court houses is no doubt that the federal system secures the jurors more than any other court but that we didn't get to my real question as any case recognize the difference in state courts and federal courts they're not see in our court systems different than the federal security system they are i think there's enough on the record that judge the two minute delay is in the record the judge took note of the jury was in a security area which he can take note because this  procedure to guide and what what we what we don't necessarily know is what is the standard of review what is it you're to review judge pratt's ruling on generally speaking on a motion for a new trial denial of discretion when we look at the cases there isn't one court that says in this these kind of decisions that point blank says you know how sometimes you say it right away we review for discretion to deal with crap abuse with the known time the two minutes the past tense questions and the fact that he could take notice and he did properly my hand over sixte this jury went for two minutes and in those cases i think it can stand i was also submit when you read these cases you get a sense  petition now that now they did but are you you say you're satisfied with with what here petition to and what's i think of interest is the claim that created the deadlock has been dismissed they resisted it at the directed verdict motion they resisted when clearly before judge pretz ruling with with respect to some of the other issues raised particularly with the same decision and the first amendment instructions those are the model instructions and those actually do follow the roadmap from wagner one with respect to there they raised the question about not being able to properly wear deer they actually i believe counsel waived his right he said as much at the close of evidence and i did make an objection at the time that's reviewed under the player standard with respect to the same decision excuse me business judgment position the fact of the matter is when with when this was remanded by the eighth circuit they said a material fact of dispute exists over whether the decision maker carolyn jones would have made the same decision but for miss wagner's political beliefs the court itself recognized she was the decision maker of course she was the decision maker and more importantly dean agger wall was an independent on behalf of the university and so it was a hiring decision that was being challenged and all entities of course act through with that it's not like you say one of the cases is an eighteen  absolutely she was not if you were ok and i think it's unfair to say too i don't mean by the court i mean by miss wagner to continue to challenge one individual who had a distinguished legal career who simply believed in something and that had more to do with constitutional rights than anything and it's unfair to think that a dean of the law school is the cat's paw for one professor but regardless we had a we had a trial and you know professor manson was challenged forty in forty nine democrats in one republican on the faculty absolutely and i think they have the absolute right to in did they ever in your view did they get out and back in two  minutes yes and no if they that would be it would be pretty much it was twelve people it pretty much would take them twenty seconds to get out of the courtroom the way that was set up and and so but sometimes we had a very quick and find it interesting that mr carroll reef went through the questions that the jury was raising during the course of deliberations and then told you that well they were hung up on how do we know how from doing it after the trial to it prevents us from going to these jurors and saying hey did you really mean that that's exactly what judge shields did did you really mean that did you really mean not to render a verdict on count one that's what happened here and that's what's wrong and that's why violence it's going to be the rules of evidence because here he is now trying to ascertain what the jury's deliberation was and that is improper and that's what the lawyers i find it interesting that this whole two minute argument the ruskin case lie cited from michigan says who do it and when a judge comes in after you've been told your duties are over and you're discharged cancel your time and come back again we're going to do out of respect for the court thank you thank you counsel for your presence in argument this morning consider your case maybe it will render a decision in due course we have one