This week, a mistrial was declared in the federal bribery trial of Ward 8 D.C. Council member Trayon White. White’s attorney, Gary Kohlman, told WTOP the jury was split 9-3 in favor of acquittal when deliberations ended, though the court has not publicly disclosed the breakdown.

The jury’s inability to reach a verdict has the defense calling for White to be acquitted and prosecutors vowing to retry him.

As the case moves forward, both sides will face obstacles if White goes to trial again in front of a second jury, a legal expert told WTOP.

Georgetown Law professor Erica Hashimoto said the biggest problem with the prosecution’s case is the evidence it presented.

“They don’t have any smoking gun evidence in the sense that they don’t have any witness who says, Mr. White, you know, Mr. White came and pressured me to restore these contracts,” she said.

Hashimoto said one challenge for prosecutors was that D.C. government employees testified White did not pressure them to restore contracts, despite recordings where White suggested he had.

Also, during the first trial, Hashimoto said she believes the defense did a good job of calling into question whether prosecutors proved that White accepted $35,000 from businessman Allieu Kamara as a bribe to help Kamara with his D.C. contracts.

“The government was relying on, primarily on a witness who has a history of lying, and you know, he was not a great witness for the government, and so it does not surprise me that jurors, at least some of them, thought the government hadn’t proven its case beyond a reasonable doubt,” Hashimoto said.

Hashimoto said White’s acquittal motion is focused on whether prosecutors sufficiently proved White’s intent.

Kamara agreed to work with the FBI, hoping for leniency at sentencing after pleading guilty to bank fraud and bribery charges in a separate case.

If he testifies again, and his story does not match his testimony during the first trial, Hashimoto said Kamara could deal a blow to the prosecution.

“If he changes his story at all, he will get beaten up on cross examination because he’s already testified under oath, and so he can’t really say anything different than what he said without his credibility getting completely shot.”

Hashimoto said prosecutors may look for additional witnesses before a retrial, though she noted a second trial will likely feature much of the same evidence and many of the same witnesses.

The defense has its own concerns, according to Hashimoto, including who will become part of the next jury.

“Sometimes it’s a representative jury sample, and sometimes it looks much less representative, and so it’ll be interesting to see what the jury pool looks like if the government retries,” Hashimoto said.

While it’s likely similar evidence and witnesses will be used during a second trial, Hashimoto said to expect the prosecution to rework its arguments based on what it learned during the first trial.

Although the 9-3 split is now known, it remains unclear why individual jurors voted the way they did. Hashimoto said attorneys generally cannot directly question jurors about their deliberations.

While nine jurors in the first trial favored acquittal, another jury could reach a different conclusion based on the same facts and testimony.

Hashimoto also noted that if a second jury is unable to reach a verdict, prosecutors would face a significant decision. The government rarely seeks a third trial after two hung juries.

Will there be surprises during a second trial? Hashimoto said most likely not.

“Everybody knows kind of much more what to expect now, and so in that sense, I think it’s it helps them both. It helps both sides,” Hashimoto said.

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