A mistrial has been declared in the case of a local man who had been accused of breaking off the thumb of one of the famous Terracotta Army statues while they were on exhibition at the Franklin Institute.

The media has made lots of noise about the high-profile and internationally significant case. One detail that they have glossed over, though, is a simple fact that prosecutors may have overcharged the offense.

Man Breaks Thumb Off Terracotta Soldier, Charged With Art Theft

It all happened back in December 2017. Several life-sized sculptures from the Terracotta Army were on exhibition at the Franklin Institute in Philadelphia. Just before Christmas, the Institute hosted a holiday party after hours for members of the public. The event was a social gathering and involved alcohol.

At some point during the party, one of the partygoers ventured into the closed exhibit room where the Terracotta Army sculptures were on display. Surveillance video recorded him taking selfies with the soldiers before breaking off a thumb and running away.

The Terracotta Soldier at issue was insured for $4.5 million.

As soon as the FBI's Art Crime Team talked to the suspect, he immediately confessed and handed over the missing finger, which he had been keeping in a desk drawer.

Nevertheless, prosecutors levied some of the most severe charges possible against him, including theft and concealment of an object of cultural heritage under 18 U.S.C. § 668. Convictions for this federal offense carry up to ten years in jail.

Trial Ends in Mistrial

During the trial, the suspect never denied taking the thumb. Instead, he emphasized how he never intended to do it. His defense lawyers stressed how severe the charges were for what had happened.

In the end, the jurors could not reach a verdict. They deadlocked over whether to convict or acquit, and the judge declared a mistrial.

A Classic Example of Overcharging an Offense

The fallout from the mistrial has been significant. China has even expressed outrage at the lack of a conviction. However, the simple fact is that the federal prosecutors pressed charges that were far above what the evidence warranted.

All forms of theft involve an intent to deprive someone else of property, but evidence of that intent was very weak in this case. The defendant was remorseful, he was confused by why he acted the way he did, and he immediately confessed and gave the thumb back. Nevertheless, prosecutors elected to “go for the throat” and go for the most serious conviction they could find on the law books.

It is unclear why prosecutors did not also pursue charges for criminal trespass or vandalism, or if they did and the defendant plead guilty to them before trial.

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