# United States v. James Michael Martin

> Court of Appeals for the Fourth Circuit · August 2, 1984 · 740 F.2d 299

URL: https://www.frixlaw.com/law-library/cases/9472450

## Case

- **Full name:** UNITED STATES of America, Appellee, v. James Michael MARTIN, Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** August 2, 1984
- **Citations:** 740 F.2d 299; 1984 U.S. App. LEXIS 19881
- **Precedential status:** Published
- **Opinion:** Dissent by Winter
- **Judges:** Winter, Chapman, Butzner
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

*304 HARRISON L. WINTER, Chief Judge,
dissenting:
While I agree with the majority that there is no other merit in the appeal, I think that the district court committed reversible error when it gave the jury a gratuitous, unbalanced Allen charge having a coercive effect. I would reverse on this point and require defendant to be tried anew. From the majority’s contrary conclusion, I respectfully dissent.
It is the law of this circuit that the giving of a coercive charge is plain error. United States v. Smith, 353 F.2d 166 (4 Cir.1965). * It is not necessary for us in performing appellate review to examine the record to see if defendant objected to the charge or otherwise saved the issue for review. Rather, we may proceed directly to a consideration of whether the charge given was coercive.
I think that it was. While awaiting the arrival of a reporter to read back testimony requested by the jury, the district court told the jury:
I tell you in trying a case, a case is always tried by both sides best the first time it’s always tried. The lawyers do a better job. The witnesses do a better job. When I say a better job, it’s more likely that you’ll know the true facts of what happened____you really never get as good a picture of a case as you do the first time it’s tried.
Of course, in the overall expression, the jury was also told, in somewhat informal fashion, that jurors have a duty to consult with one another, that jurors, whether in the majority or in the minority, should listen to and consider the views of the opposing group and be willing to give up their own views if persuaded that they are erroneously held, and that jurors should “not give up a firm conviction just to go along with the crowd.” In these aspects of the expression, the charge was balanced, but in my mind, this balance was destroyed by the quoted language about the significance of a first trial. When the jury was told that a case is always tried best the first time that it is tried, the lawyers and witnesses do a better job in a first trial, and it is more likely that the jurors will get the true facts in a first trial, I think the admonition not to give up a firm conviction was seriously undercut. The jurors were told, in effect, that, if the truth was ever to be known, they must agree on a verdict, whatever their individual convictions. A new and, to my mind, impermissible reason to reach a verdict was thus advanced, destroying the balance of the approved Allen charge. See United States v. Rogers, 289 F.2d 433 (4 Cir.1961); United States v. Smith, supra; see also United States v. Sawyers, 423 F.2d 1335 (4 Cir.1970). It is perhaps significant that after the jury heard the supplemental charge and the testimony that it wished to have repeated, it returned a verdict of guilty on each of four counts in thirty-five minutes.
The rationale of treating a coercive charge as plain error was expressed in Smith as follows:
when omissions of trial counsel can be made the basis of a claimed deprivation of constitutional rights in subsequent collateral proceedings, we think this court should note as plain error a charge which is so clearly coercive.
353 F.2d at 168 . Of course, this Sixth Amendment concern was expressed with regard to a court-appointed lawyer, and counsel in the instant case was apparently privately retained. But since 1965, when Smith was decided, it has been recognized that the Sixth Amendment right to effective assistance of counsel applies equally to retained counsel. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 , 100 S.Ct. 1708, 1716-17 , 64 L.Ed.2d 333 (1980).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472450. Public record. Not legal advice.