By Charles Scudder and Krista K. Torralva
The judge overseeing the capital murder trial for Billy Chemirmir declared a mistrial Friday after jurors repeatedly said they were hopelessly deadlocked.
Attorneys for Chemirmir asked for a mistrial multiple times as the jury sent notes about the stalled deliberations, but State District Judge Raquel “Rocky” Jones initially denied the requests.
One of the notes indicated that one juror would not “deliberate from her vote.”The note did not say whether the 11 other jurors were in favor of a conviction or acquittal.
After the third such note from the jurors, Jones gave them stern instructions called an Allen charge — or “dynamite charge” — to keep deliberating. She read instructions to the jury shortly after 2 p.m. to “not violate your conscience but continue deliberations.”
Jones declared the mistrial following the jurors’ fourth note, at 3:22 p.m., about being deadlocked. The jury deliberated for about 11 hours over the course of two days.
Chemirmir faces other pending capital murder charges in Dallas and Collin counties. Dallas County District Attorney John Creuzot said he was committed to retrying the case.
“Our commitment was to get two convictions, and that does not change,” he said.
An attorney for Chemirmir, Kobby Warren, said he always felt the state did not meet the burden of proof to convict Chemirmir.
“I told the jury that I don’t believe they got there,” Warren said. “The jury, obviously at least part of the jury, felt that same way, and so they stayed steadfast.”
Several families of the nearly two dozen alleged victims watched the trial from a room on the 10th floor of the courthouse. As the hours ticked by after the jury began deliberations, they said, the mood in the room became more and more tense.
“We are all devastated by this,” said Ellen French House, whose mother, Norma French, was killed at The Tradition-Prestonwood in October 2016. “I don’t know how this happened.”
The families made a collective statement Friday evening saying that they look forward to more cases being prosecuted, including in Collin County.
Creuzot said that, going forward, he might change how potential jurors are questioned in the jury selection process, especially surrounding their opinions on circumstantial evidence, which he said played a major part in Chemirmir’s case.
“Circumstantial evidence can sometimes be stronger than eye-witness testimony,” he said. “So, in a case like this, it’s very important that the jury and every individual juror understands that, if you’re going to put on a circumstantial-evidence case, that’s what it is. You need to understand what their opinions are about that, what are their perceptions, and then you need to educate them on the fact that circumstantial evidence can be stronger than what we call eyewitness testimony.”
The jury had returned to the Frank Crowley Courts Building near downtown Dallas at about 8:45 a.m. Friday to continue deliberating the fate of Chemirmir, who is accused of smothering more than a dozen elderly women and stealing their jewelry and other valuables.
Jurors weighed Chemirmir’s guilt or innocence only in the death of 81-year-old Lu Thi Harris, who was found dead in her Dallas home on March 20, 2018. In addition to details about the Harris case, however, jurors also heard about attacks on Mary Brooks, 88, who died Jan. 31, 2018, and Mary Bartel, 91, who survived an attempted smothering the day before Harris died.
Chemirmir has been indicted on 18 counts of capital murder in Dallas and Collin counties. In all, he has been linked in police records, medical examiner reports and civil lawsuits to at least two dozen deaths between 2016 and his arrest the day Harris died.
Chemirmir will remain incarcerated in Dallas County, awaiting his other pending cases.
A spokesman for the Collin County district attorney’s office said Friday that the mistrial in Dallas changes nothing about their pending cases. Prosecutors there have not indicated whether they plan to pursue the death penalty; they have said they’re waiting until Dallas County completes its prosecution before deciding what to do.
“Obviously we’re shocked, we’re saddened, we’re sick,” said Cheryl Pangburn, whose mother, Marilyn Bixler, died September 2017 at the Parkview Frisco senior-living community. “We would love to see Collin County step forward and see them prosecute Billy Chemirmir.”
State Rep. Jared Patterson, R-Frisco, who is Pangburn’s neighbor and filed several bills in the Texas Legislature in response to the slayings, tweeted his surprise at the mistrial announcement.
“This further shows that Dallas County DA [Creuzot] isn’t up to the task,” Patterson tweeted. “We need Collin County DA [Greg Willis] to step in and get justice.”
An Allen charge has been considered prejudicial in some courts. In a hearing conducted in the courtroom, defense attorney Kobby Warren objected to such language. Warren and Mark Watson, another defense lawyer, argued that an Allen charge could violate certain constitutional rights.
“If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the court to declare a mistrial and discharge the jury,” Jones told the jurors. “The indictment will still be pending and it is reasonable to assume that the case will be tried again before another jury at a future time.
“The questions to be determined by the jury will be the same questions confronting you and there is no reason to hope the next jury will find these questions any easier to decide than you have found them.”
By law, the Allen charge is the most forceful step a judge can take with jurors struggling to reach a verdict, said Alison Grinter, a defense lawyer not involved in the case.
“Basically it makes the jury feel like failing to reach a unanimous verdict would be a really huge burden on everybody in the system, and it tells them that if they can reach a consensus without undue burden to their conscience, they really need to,” Grinter said.
In closing arguments Thursday, Warren said prosecutors piled on accusations against Chemirmir in connection with other deaths because they couldn’t prove that he killed Harris.
“You probably got confused on what case you were here for,” Warren said. “It’s not Ms. Brooks. It’s not Ms. Bartel. But it’s Ms. Harris.”
Lead prosecutor Glen Fitzmartin said Chemirmir picked out Harris in a Walmart, followed her home and smothered her with a pillow. He then took several of her belongings including jewelry and money, Fitzmartin said.
Prosecutors also showed surveillance footage from the same Walmart of Chemirmir following Brooks just before she died. Richardson police testified that their investigation determined he also targeted her at the store and smothered her in her home.
“You know now when they were shopping in that Walmart. … He was in his hunting grounds,” Jerry Varney, another prosecutor, said in closing arguments.
The courtroom was closed to the public as a COVID-19 precaution, but proceedings were broadcast on the court’s YouTube page.