Amicus Curiae Brief — Lowenfield v. Phelps

No. 86-6867

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Iu the Supreme Court of the United States

OCTOBER TERM, 1987

LESLIE LOWENFIE!

C. PAUL PHELPS. SECRETARY. LOUISIANA

DEPARTMENT OF CORRECTIONS. ET Al

BRIEF FOR THE UNITED STATES

AMICUS CURIAE SUPPORTING RESPONDENTS

QUESTION PRESENTED

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

The trial court did not coerce the jury into return-

ing a capital sentence

A. The trial court’s Allen charge was not coercive

1. The Allen charge serves legitimate purposes

and is not inevitably coercive

2. The supplemental jury instruction given by

the trial court in this case was not coercive

B. Polling the jury to determine the utility of

further deliberations, even in conjunction with

the modified supplemental Allen charge, was not

coercive

Conclusion

4 ppendix

TABLE OF AUTHORITIES

ases:

Allen vy. United States, 164 U.S. 492 (1896) 8, 11,

Andrews Vv. United States, 309 F.2d 127 (5th Cir

1962)

Arizona ¥. Washington, 434 U.S. 497 (1978)

Ballew v. Georgia. 425 U.S. 223 (1978)

Beale vy. United States. 262 F.2d 215 (5th Cir

1959)

Berger Vv. United States, 62 F.2d 438 (10th Cir

1932)

(Til)

Page

Cases—Continued: Page

Bowen Vv. United States, 153 F.2d 747 (8th Cir.),

cert. denied, 328 U.S. 835 (1946)

Brasfield vy. United States, 272 U.S. 448 (1926)_8, 2

Burton v. United States. 196 U.S. 283 (1905)

Butler v. United States, 254 F.2d 875 (5th Cir

1958)

Cabana Vv. Bullock, 474 U.S. 376 (1986)

California v. Brown, No. 85-1563 (Jan. 27, 1987)

Carlton v. United States, 395 F.2d 10 (9th Cir

1968), cert. denied, 393 U.S. 1030 (1969)

Cornell v. Iowa, 628 F.2d 1044 (8th Cir. 1980),

cert. denied. 449 U.S. 1126 (1981)

Ellis v. Reed, 596 F.2d 1195 (4th Cir.), cert. de-

nied, 444 U.S. 973 (1979)

Estes v. Texas, 381 U.S. 532 (1965)

Fields Vv. State, 487 P.2d 831 (Alaska 1971)

Fulwood v. United States, 369 F.2d 960 (D.C. Cir

1966), cert. denied, 387 U.S. 934 (1967)

Gafford \V Warden, 434 F.2d 318 (10th Cir

1970)

Green v. United States, 309 F.2d 852 (5th Cir

1962)

Hicks v. Oklahoma, 447 U.S. 342 (1980)

Hovey v. Superior Court, 28 Cal. 3d 1, 616 P.2d

1301, 168 Cal. Rptr. 128 (1980)

Huffman v. United States, 297 F.2d 754 (5th Cir

1962)

15

Hyde v. United States, 225 U.S. 347 (1912) 12-15, 23

Jenkins v. United States. 380 U.S. 445 (1965) 19

Jones V. Norvell, 472 F.2d 1185 (6th Cir.), cert

denied, 411 U.S. 986 (1973) 25

Kawakita yv. United States, 343 U.S. 717 (1952).

aff’g, 190 F.2d 506 (9th Cir. 1951) 12,13

Lias Vv. United States, 284 U.S. 584, aff’g 51 F.2d

915 (4th Cir. 1931) 12.

Locks V Sun ner. 702 KF Z ’ 103 (9th Cir *- cert

denied. 464 U.S. 983 (1983)

Mayfield v. State, 302 Md. 624, 490 A.2d 687

(1985)

Cases—Continued:

Marsh Vv. Cupp, 392 F. Supp. 1060 (D. Or. 1975),

aff’d, 536 F.2d 1287 (9th Cir.), cert. denied,

129 U.S. 981 (1976)

McElroy v. United States, 164 U.S. 76 (1896)

Muhammad vy. State, 243 Ga. 404, 254 S.E.2d 356

(1979)

Parker v. Gladden, 385 U.S. 363 (1966)

People v. Carter, 68 Cal. 2d 810, 442 P.2d 353, 69

Cal. Rptr. 297 (1968)

People v. Luther, 53 Mich. App. 648, 219 N.W.2d

812 (1974)

Potter v. United States. 691 F.2d 1275 (Sth Cir.

L982)

Profitt v. Florida, 428 U.S. 242 (1976)

Rose v. Clark, No. 84-1974 (July 2, 1986)

Sanders Vv. United States, 415 F.2d 621 (5th Cir

1969). cert. denied, 397 U.S. 976 (1970)

Sheppard V. Maxwell, 384 U.S. 333 (1966)

Singer Vv. United States. 380 U.S. 24 (1965)

Spaziano V. Florida, 468 U.S. 447 (1984)

State v. Fowler. 312 N.C. 304, 322 S.E.2d 389

(1984)

State v. Rickerson, 95 N.M. 666, 625 P.2d 1183.

cert. denied, 454 U.S. 845 (1981)

State v. Roberts, 131 Ariz. 513, 642 P.2d 858

(1982)

State Vv Thomas, 86 Ariz 161, 342 P.2d 197

(1959)

Strickland v. Washington, 466 U.S. 668 (1984)

Thaggard vy. United States, 354 F.2d 735 (5th

Cir. 1965)

Turner Vv. Louisiana. 379 U.S. 466 (1965)

l’nited States v. Akbar, 698 F.2d 378 (9th Cir.).

cert. denied, 461 U.S. 959 (1983)

United States vy. Allis, 73 F. 165 (E.D. Ark

1893), aff’d, 155 U.S. 117 (1894)

[’nited States Vv ingiulo, 485 F.2d 37 (1st Cir

1973) 16,

[United States v. Brown, 411 F.2d 930 (7th Cir

1969). cert. denied, 396 U.S. 1017 (1970)

VI

Cases—Cortinued: Page

United States Vv. Burke, 700 F.2d 70 (2d Cir.),

cert. denied, 464 U.S. 816 (1983) 16

l’nited States Vv. Buttorff, 572 F.2d 619 (8th Cir

L973) 15

I’nited States v. Cook. 668 F.2d 808 (8th Cir

S1) 26

ae a ad State , ¥ Dea ; ns, 562 k: 2d 967 {th {

1977) 23

United States v. Diag 22 F.2d 1310 (D.C. Cir

1975). cert. denied, 429 U.S. 852 (1976) Zt f

United States v. Dougherty, 473 F.2d 1113 (DA

Cir. 192)

/ ted States v. Dellinger, 472 F.2d 340 (7th Cir

1972) ! denied, 410 U.S. 970 (1973) 15

United States v. Fioravanti, 412 F.2d 407 (3d

(‘ir ) e} denied 96 LS. 887 (1969) 15. 16. 1s

[ be States Vv. Fila ery, 451 F.2d 880 (lst Ci

L971) ls

ted Stati Vv. Goldste 179 F.2d 1061 (2d

Cir.), cert. denied, 414 U.S. 873 (197 28

j States v. G hie 158 F.2d R79 ¢ Cir.)

ert. denied, 474 U.S. 901 (1985) <8

United Stat Vv. Ha 91 I 1 348 (6t! r.)

cert. denied, 393 U.S. 874 (1968 9

United States v. Hast 161 U.S. 499 (1983)

/ Z States v. Je) i171 F.2d | ) (2d

(ir.} denied, 411 U.S. 935 (1973) a

/ a Sfates Vv. A 17 F.2d 459 (2d Cir.)

cert. dé d. 375 U.S. 836 (1963) i)

Lnit S Vv. Ae 783 F.2d 575 (5th |

ORG ) ert. ai ed. N RE.5499 (0) i 19R¢ r

Si Vv. La i174 U.S. 438 (1986)

I! it Stat v. Mack. 249 F2 1 (Tth ¢

L957) ert. de i 56 17S. 9290 (1958)

| Sfat \ Weck Ro? | et L tr

Cir. 1987) f

St vy. M 117 } 1002 (4th

1969) rt. ae Q7 | } (19

v. Rao, 394 F.2d 354

Cases—Continued: Page

United States v. Rengifo, 729 F.2d 975 (1st Cir

1986) 26

United States v. Rey, 811 F.2d 1453 (llth Cir

L9OR7). petition tor cert. pending, No. 86-2060 16

United States v. Rogers. 289 F.2d 483 (4th Cir

1961) 27

United States v. Sae-Chua, 725 F.2d 530 (9th Cir

1984) 27

United States v. Sawyers, 423 F.2d 1335 (4th Cir

L9s0) 14, 16, 18, 27

i ed States v. Scott, 547 F.2d tf (6th Ci

L977) 16, 19

inated State \ Ne. 505 F.2d 845 (9th Cir

1974), cert. denied, 420 U.S. 992 (1975) 27

/ a ‘ es Vv. S i84 F.2d 879 (7th Ci

1973) 16, 19

| i Stat Vv. Smith. 685 F.2 (16 (Sth Ci

LOSO) Z

United States v. Sn 163 F.2d 1221 (D

L972) 27

/ ted States Vv. T/ 149 F.2d 1177 (D.C. Ci

L971) 14, 15, 16, 18 }

( [¢ States Vv. Vi é 294 F.2d 1046 (ot!

i979) Zt

ted Stat inti . 2 |

SRR (‘iy 1977 ) .

. A 1) )

| 678 | 723 (7th Cir. 198 |

j * , WW’, \ j

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16

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-6867

LESLIE LOWENFIELD,. PETITIONER

v.

C. PAUL PHELPS, SECRETARY. LOUISIANA

DEPARTMENT OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FiFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

It is not uncommon for juries in federal criminal

cases to have difficulty reaching a verdict or to be-

come deadlocked at some point during their delibera

tions. The federal government therefore has a sub

stantial interest in the procedures that trial courts

may follow when a jury is deadlocked or otherwise

reports difficulty in its deliberations. The first ques-

tion in this case is whether the trial court’s inquiry

about the usefulness of further deliberations and the

court’s subsequent use of an Allen charge coerced t

jury into returning a capital sentence. This Court’s

resolution of that qe could affect the kinds of

employ when such ant wea arise during trial, iz

both capital and non-capita! cases.

(7)

STATEMENT

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are not advocates for one side or the other. Do

not hesitate to re-exam [sic] your own views

and to change your opinion if you are convinced

von are wrong but do not surrender your honest

belief as to the weight and effect of evidence

solely because of the opinion of your fellow ju-

rors or for the mere purpose of returning a ver-

dict.

Defense counsel did not object to that instruction.

The jurors requested and were allowed to retire at

11:55 p.m. (J.A. 7, 15-16, 48).

The jury reconvened the next day at 9:40 a.m.

(J.A. 8). At 11:45 a.m., counsel for the defense

moved for a mistrial because of the length of time

the jury had been out and because of an instruction

given by the trial judge at the guilt phase (J.A. 8,

50-51). The trial judge denied the motion, stating

that “[the jurors] are still working towards the ver-

dict,” as indicaved by the jury’s notes (J.A. 51). At

3:05 p.m., defense counsel reurged the motion when

a note came from the foreman of the jury stating,

“The jury is having great distress and is unable to

reach a decision at this point. There is a great un-

balance in the voting. Please cail us back in and

direct the jury again as to its responsibilities and the

oath we took” (J.A. 17; see J.A. 51-52). The trial

judge denied the mistrial motion, and instead used a

procedure that the prosecution and the defense had

agreed upon during a conference with the judge in

chambers (J.A. 52). The jury was called back in

and the following colloquy occurred (J.A. 53-54):

THE COURT: Mr. Conzoneri [the foreman]

I'd like you to answer the question that I have

and I'd like you to only answer it yes or no:

Does the jury have a verdict on any Count?

THE FOREMAN: No, sir.

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jury back into the courtroom and said the following

(J.A. 55):

THE COURT: I'm going to ask the question

again.

I’m going to change a couple of words of it to

make it a little bit more precise. Then I’m going

to pass out pieces of paper and I’m going to ask

you again to write your name and answer to it.

The question is: Do you feel that any further

deliberations will enable you to arrive at a ver-

dict?

I'll repeat that: Do you feel that any further

deliberations will enable you to arrive at a ver-

dict?

Please put your name and yes or no.

This time, the jury split 11-1 in favor of the view

that further deliberations might enable it to reach a

verdict (J.A. 18). The judge reinstructed the jury

as the foreperson had requested (J.A. 56):

THE COURT: Ladies and Gentlemen, as I

instructed you earlier if the jury is unable to

unanimously agree on a recommendation the

Court shall impose the sentence of Life Im-

prisonment without benefit of Probation, Pa-

role, or Suspension of Sentence.

When you enter the jury room it is your duty

to consult with one another to consider each

other’s views and to discuss the evidence with

the objective of reaching a just verdict if you

can do so without violence to that individual

judgment.

Each of you must decide the case for yourself

but only after discussion and impartial consid-

eration of the case with your fellow jurors. You

are not advocates for one side or the other. De

not hesitate to reexamine your own views and to

change your opinion if you are convinced you

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|

jected that argument as well, finding that “[t]here

is nothing in the record to suggest or indicate that

the verdict was rendered as a result of any coercive

influence by the court” (ibid.). The court added that

it is “a well settled proposition” that a trial court

may “impress upon th[e jurors) the importance of

the case, urge them to come to agreement, and send

them back for further deliberation” when the court

learns that the jury is having difficulty in agreeing

(tbid.). Finally, the state supreme court rejected

petitioner’s arguments that the jury was permitted

to deliberate for an unduly long period and that the

trial court should have granted a recess between the

guilt and sentencing phases of the trial (id. at 1259-

1260).

3. Petitioner then sought 4 writ of habeas corpus

from the United States District Court for the East-

ern District of Louisiana. In his petition, he reas-

serted his claim that the jury had been coerced into

returning a capital sentence. The district court re-

jected that claim, finding that the totality of the cir-

cumstances did not establish coercion (J.A. 79). The

court of appeals, by a divided vote, also rejected peti-

tioner’s contention (J.A. 100-126). The majority

noted that petitioner did not challenge either supple-

mental instruction used by the trial court (J.A. 113).

In any event, the court of appeals found that “there

is no showing of coercion; the record certainly does

not demonstrate coercion sufficient to render the trial

fundamentally unfair” (ibid.). The dissenting judge

argued that the trial court's inquiry into the jury's

numerical division, combined with the supplemental

charge encouraging the jury to reach a verdict.

coerced the jury into returning a capital sentence

(id. at 127-134 (Johnson, J., dissenting) ).

SUMMARY

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ARGUMENT

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govern this case, for two reasons. First, the rule in

Brasfield was not a constitutional rule and therefore

is not applicable to state court proceedings. Second,

the inquiry whether further deliberations would be

helpful is materially different from an inquiry into

the jury’s numerical division. The former question

is designed to enable a trial judge to determine

whether to discharge the jury, rather than to isolate

jurors in the minority. In addition, the inquiry con-

cerning the usefulness of further deliberations is a

neutral one; it does not suggest to the jury that the

judge favors either party, or that the judge expects

the jury to reach a verdict at all.

The principal focus in a case such as this one

should be on whether the court’s actions had the effect

of coercing a verdict. Even if a judge improperly in-

quires into the division of the jury, that inquiry

should be treated simply as one factor in determining

whether the jury was coerced in a particular case. In

this case, neither the supplemental instruction nor

the trial judge’s inquiry of the jurors was coercive,

either standing alone or viewed in light of all the

circumstances.

ARGU MENT

THE TRIAL COURT DID NOT COERCE THE JURY

INTO RETURNING A CAPITAL SENTENCE

Petitioner claims (Br. 11-30) that the trial court

coerced the jury into returning a capital sentence.

Although petitioner relies on the totality of the cir-

cumstances in arguing that the trial court’s actions

were tantamount to a directed verdict, the two prin-

cipal objections asserted by petitioner are (1) the

trial court’s use of a so-called “dynamite” or “blast-

ing’ jury charge, and (2) the court’s inquiry as to

whether further jury deliberations would be helpful.

10

These actions, petitioner argues, encroached on the

jury’s independence and robbed him of any chance

to receive a non-capital sentence. We submit that the

court’s actions were consistent with the principles

governing the proper management of deliberating

juries and did not have the coercive effect that peti-

tioner claims.

A. The Trial Court’s Allen Charge Was Net Coercive

1. The Allen charge serves legitimate purposes and is

not inevitably coercive

It is not uncommon for the jury in a criminal case

to have difficulty reaching a unanimous verdict.

When that occurs, the trial judge must decide how

long to allow the jury to deliberate before declaring

a mistrial. The determination is a difficult one be-

cause of the competing interests at stake. On the

one hand, refusing to discharge the jury after pro-

tracted deliberations poses the risk that any ensuing

verdict will be the product of exhaustion, not reason

On the other hand, a mistrial imposes considerable |

costs on the criminal justice system. Delay is the |

enemy of truth and can render a retrial difficult, if |

not impossible, because the memories of witnesses can |

fade, witnesses may decline to testify, they may move |

or die, and critical evidence may be lost. Nor is

accuracy the only victim of delay. All the partici-

pants in the criminal justice system—yjudges, prose-

cutors, victims of crime, the community, and the per-

sons accused of crime—have an interest in seeing the

jury reach a verdict at one trial if possible.’ Accord

The effect of retrials on the trial court to increase the

court's caseload, which inevitably delays the disposition of

other cases and decreases the care with which the « rt

handle each of the matters before it tetrials also increas

ll

ingly, a procedure that can avoid unnecessary re-

trials serves compelling societa! interests.

One such procedure is to remind the jurors, when

they have difficulty reaching a verdict, of their re-

sponsibility to be open-minded and to consider the

views of each juror with the objective of reaching a

verdict if it is possible to do so. That practice has

long been approved by the federal courts. For more

than 90 years, it has been the rule in federal crimi-

nal cases that, when the jurors have difficulty reach-

ing a verdict, the trial judge is not obliged either to

declare a mistrial or to remain silent. See United

States vy. Allis, 73 F. 165, 182-183 (E.D. Ark. 1893),

aff'd, 155 U.S. 117 (1894). Instead, the judge may

encourage the jurors to reach a verdict by delivering

a so-called “Allen charge,” a jury instruction named

after the decision that first expressly approved the

practice, Allen v. United States, 164 U.S. 492 (1896).

the burden on the prosecution, which may force the prosecutor

to agree to plea bargains that would otherwise be unaccept-

able, or to abandon some cases altogether. Delay can impair

the defendant's ability to establish his innocence, and it in-

evitably disrupts his personal life, especially if he is in cus

tody. Other defendants, cuilty and innocent, wil! suffer the

same burdens if their trials are postponed in order to accom

modate additional retrials in other cases. Witnesses need

lessly relive painfu! experiences, which deters voluntary co

operation with the criminal justice system and makes the

victims of crime also victims of the system. The community's

interest in the swift administration of justice is harmed by

delay, as is society's interest in the incapacitation, rehabilita

tion, and deterrence of offenders. And when a person accused

of a serious crime is free on bail, a delay in bringing his

prosecution to a close prolongs public anxiety over com

munity safety and increases the risk that he will commit new

crimes while he is at large

12

In the Allen case, this Court held that it was

proper for a trial court to give a supplemental! instru

tion to a deadlocked jury encouraging the jurors, par-

ticularly those in the minority, to be open-minded and

to reconsider their views in light of the viewpoint of

the majority, so that a definitive verdict might b

reached. 164 U.S. at 501-502. An instruction of that

type is valid, the Court held, since it is fully CO!

sistent with the rationale for having a jury delib

erate on a defendant’s guilt or innocence As the

Court explained, the verdict should represent the

honest opinion of each individual juror, but it does

]

not follow that a juror will not change his opiniot

in conference with the other jurors. On the cont!

“I tihe very object of the jury system is to secur

unanimity by a comparison of views, and i

ments among the jurors themselves.” /d. at 501 it

certainly cannot be the law.” the Court stated. *t

each juror should not listen with deference to th

arguments’ of the other juror with a distrust of

his own’ if a majority of the other jurors disagre«

with him: that a juror could begin deliberations wit)

“a blind determination that the verdict shall repre

sent ! | on of the case at that 1 ment

a juror could lose his ears” to the view f th

ther jurors. /bid. The instruction giver eA

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Ppround tnat the erdict was coerce

charge / vy. f led State 284 U.S + (19

eee

13

United States, 225 U.S. 347, 381-383 (1912).* None

of the cases cited by petitioner (Br. 12, 25), such as

Turner v. Louisiana, 379 U.S. 466 (1965) (contacts

between jurors and deputy sheriffs who were the

principal prosecution witnesses); Estes v. Texas, 381

U.S. 532 (1965) (televised trial) ; Sheppard v. Max-

well, 384 U.S. 333 (1966) (prejudicial publicity be-

fore and during trial); and Parker v. Gladden, 385

U.S. 363 (1966) (contacts between jurors and bail-

iff), has undercut the holding in Allen. An Allen

charge simply does not contain the “overt coercive

elements” present in those cases. United States v.

Brown, 411 F.2d 930, 932 (7th Cir. 1969), cert. de-

nied, 396 U.S. 1017 (1970).

The reasoning in Allen is still valid today. The

rationale for requiring a jury to deliberate is that

joint consideration of the evidence and arguments of

counsel by the entire jury, and the comparison of the

viewpoints of each juror with those of his colleagues,

is more likely to produce an accurate and just out-

| come than is simply taking a vote on the accused’s

guilt or innocence. Cf. Baillew v. Georgia, 435 U.S.

223, 232-234 (1978) (opinion of Blackmun, J.). A

trial by jury has its “weaknesses” (Singer v. United

*In Lias, the court of appeals had upheld a supplemental

instruction “substantially” similar to the Allen charge. 51

F.2d at 218. This Court, on writ of certiorari “limited to the

question raised by the supplemental charge to the jury” (284

U.S. at 604), affirmed the lower court’s judgment per curiam,

simply citing the Allen decision. 284 U.S. at 584. In Kawakita,

the court of appeals had upheld a supplemental charge sub-

stantially like the Allen instruction. 190 F.2d at 521-528.

Although the use of the instruction was one of the allewed

errors relied on for reversal (see Pet. Br. 160-169, Kawakita

Vv. United States, No. 570, 1951 Term), this Court disposed

of the contention by grouping it with others and saying that

all were “either insubstantial or so adequately disposed of by

the Court of Appeals that we give them no notice.” 348 U.S.

at 744,

15

every juror certainly has the power to refuse to re-

turn a guilty verdict in the teeth of overwhelming

evidence. But just as a defendant has no entitlement

to a “lawless” jury (Strickland v. Washington, 466

U.S. 668, 695 (1984)), or to have the jury told that

it may refuse to convict him notwithstanding clear

proof of his guilt,’ so too a defendant has no pro-

tected interest in a hung jury that could be under-

mined by an Allen charge.

To be sure, the Allen charge has been the object of

criticism by the lower federal courts and commen-

tators on the ground that it is potentially coercive."

To avoid that problem, some courts of appeals, in the

exercise of their supervisory powers, have approved

variants on the original Allen charge. The different

formulations approved by the courts of appeals are

* See, e.g., United States v. Buttorff, 572 F.2d 619, 627 (8th

Cir. 1978) ; United States v. Dougherty, 473 F.2d 1113, 1130-

1137 (D.C. Cir. 1972); United States vy. Dellinger, 472 F.2d

340, 408 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973);

United States Vv. Moylan, 417 F.2d 1002, 1005-1007 (4th Cir.

1969), cert. denied, 397 U.S. 910 (1970).

* See, e.g., Huffman v. United States, 297 F.2d 754, 756-759

(5th Cir. 1962) (Brown, J., concurring in part and dissenting

in part); Andrews v. United States, °09 F.2d 127. 129-130

(Sth Cir. 1962) (Wisdom, J., dissenting); Green v. United

States, 309 F.2d 852, 854 n.3 (5th Cir. 1962); Thagyerd Vv.

United States, 354 F.2d 735, 739-741 (Sth Cir. 1965) ‘Cole

man, J., concurring) ; United States v. Brown, 411 F.2d 930

(7th Cir. 1969), cert. denied, 396 U.S. 1017 (1970): United

States Vv. Fioreventi, 412 F.2d 407, 415-420 (3d Cir.), cert.

denied, 396 U.S. 837 (1969); United States v. Thomas, 449

F.2d 1177 (D.C. Cir. 1971) (en banc); see also Note, On

instructing Deadlocked Juries, 78 Yale L.J. 100 (1968) ; Note,

Deadlocked Juries and Dynamite: A Critical Look at the

“Allen Charge”,21 U. Chi. L. Rev. 386 (1964): see generally

Note, The Allen Charge: Recurring Problems and Recent De-

velopments, 47 N.Y.U.L. Rev. 296, 314 (1972).

16

each designed to avoid some of the features of the

Allen charge that have provoked criticism, without

undermining the effectiveness of the original instruc-

tion in reminding the jury of its duty to deliberate

in good faith.’

™The Second, Fifth, Sixth, Ninth, Tenth, and Eleventh

Circuits have approved Allen charges that speak to jurors in

the majority as well as jurors in the minority and that

emphasize that the jurors should not surrender their honest

beliefs simply in order to reach a verdict. See, e.g., United

States v. Burke, 700 F.2d 70, 80 (2d Cir.), cert. denied, 464

U.S. 816 (1983): United States v. Kelly, 783 F.2d 575, 576-

577 (5th Cir. 1986), cert. denied, No. 86-5429 (Oct. 14, 1986) ;

United States v. Scott, 547 F.2d 334 (6th Cir. 1977) ; United

States v. Bonam, 772 F.2d 1449, 1450 (9th Cir. 1985) : United

States Vv. McKinney, 822 F.2d 946 (10th Cir. 1987); United

States v. Rey, 811 F.2d 1453 (11th Cir. 1987), petition for

cert. pending, No. 86-2060. See also U.S. Fifth Circuit Dis-

trict Judges Association, Pattern Jury Instructions—Criminal

Cases 168-169 (1978) ; Committee on Model Jury Instructions,

Manual of Model Jury Instructions for the Ninth Circuit 98

(1985): U.S. Eleventh Circuit District Judges Association,

Pattern Jury Instructions—Criminal Cases 262-263 (1985).

The pattern instruction followed in the Fifth and Eleventh

Circuits is set out in the appendix to this brief.

The First, Third, Fourth, Seventh, Eighth, and District

of Columbia Circuits, in the exercise of their supervisory

powers, have required or encouraged district courts to use a

milder formulation of the Allen charge patterned after the

version approved by the American Bar Association that ad-

vises the jurors of their duty to deliberate and to attempt to

reach a verdict. See United States v. Angiulo, 485 F.2d 37

(1st Cir. 1973); United States v. Fioravanti, 412 F.2d 407,

414-420 (3d Cir.), cert. denied, 396 U.S. 837 (1969) ; United

States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970); United

States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc) ;

Potter v. United States, 691 F.2d 1275 (8th Cir. 1982);

United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971)

(en banc); see also Committee on Model Criminal Jury In-

structions for the Eighth Circuit, Manual of Model Criminal

17

Although there is disagreement regarding the pre-

cise text of the instruction that should be given to

juries that have reported difficulties in deliberations,

there is universal agreement among the federal

courts that the trial court may remind the jurors of

their responsibilities to attempt to reach a verdict.

Every court of appeals has approved some type of

supplemental charge to deadlocked jurors encourag-

ing them to consider the views of the other jurors

and to re-examine their positions without sacrificing

their conscientiously held beliefs. The Federal Judi-

cial Center and the American Bar Association have

also approved modified Allen charges.* Common to

all of these formulations is the belief that the jurors

have the duty to consider the views of other jurors

‘and to reach a verdict if they can do so in good con-

science, even if they find the process to be difficult.

This consensus serves as powerful support for the

principle that some type of supplemental instruction

may be delivered to the jury during its deliberations

without coercing a verdict. In sum, prececent, rea-

son, and experience strongly counsel against the con-

clusion that an Allen charge, however modified, is

inherently coercive.

2. The supplemental jury instruction given by the trial

court in this case was not coercive

The supplemental instruction in this case was mild

and balanced. It was addressed to all of the jurors,

not just those in the minority. It directed them to

make an individual judgment on the appropriate

Jury Instructions for the Eighth Circuit § 7.02 (1985 & Supp.

1986). The ABA’s suggested charge is set out in the appendix

to this brief.

* Federal Judicial Center, Pattern Jury Instructions 17

(1982) ; ABA, Standards Relating to Trial by Jury § 5.4, at

145-146 (1968).

18

penalty. And it reminded them of their responsibil-

ity to listen to one another, to be open-minded and

impartial, and to arrive at a verdict if possible. No

reasonable person would have felt threatened by this

admonition. See California v. Brown, No. 85-1563

(Jan. 27, 1987), slip op. 3. Significantly, petitioner

did not object to the modified Allen charge when it

was given as part of the main sentencing instruc-

tions or when the trial judge repeated the instruction

during the jury’s deliberations. Petitioner’s silence

buttresses the conclusion that the court’s instructions

did not have the coercive effect petitioner now at-

tributes to them. See Wainwright v. Witt, 469 U.S.

412, 430-431 & n.11 (1985); id. at 437-438 & n.4

(Stevens, J., concurring ).

The primary criticism of the Al/en charge has been

that it instructs jurors in the minority to re-examine

their views, but does not contain a similar admoni-

tion to jurors who are in the majority.’ It is that

* See, e.g., United States v. Flannery, 451 F.2d 880, 883

(1st Cir. 1971) (“[w]henever a court instructs jurors to re-

examine their positions, it should expressly address its re-

marks to the majority as well as to the minority’) ; United

States v. Thomas, 449 F.2d at 1183 (footnote omitted) (not-

ing the coercive nature of “statements susceptible to an in-

terpretation reflecting unwholesomely upon minority jurors

simply because they happen to be in the minority”) ; United

States v. Sawyers, 423 F.2d at 1342 (noting that the Allen

charge would be “better balanced, and fairer, if mention

[were] made of the duty of the majority to listen and con-

sider any minority viewpoint, for * * * being in the majority

does not necessarily make one right’); United States vy.

Fioravanti, 412 F.2d at 417 (indivating that the “‘very real

treachery of the Allen Charge” is that “[i]t contains no

admonition that the majority reexamine its position; it ecau-

tions only the minority to see the error of its ways”); Fields

Vv. State, 487 P.2d 831, 836 (Alaska 1971); State v. Thomas,

86 Ariz. 161, 162-166, 342 P.2d 197, 198-201 (1959). .

19

feature of the original Allen charge that led several

federal courts of appeals to adopt a modified version

of the Allen charge and to require that only the modi-

fied version be given. That criticism is inapplicable

here. The charge in this case did not contain a pas-

sage singling out jurors in the minority and urging

them to reconsider their views. Moreover, the judge

scrupulously reminded the jurors that, in reconsider-

ing their positions, they should not feel compelled to

relinquish their honest beliefs solely because other

jurors disagreed with them or just so that the jury

could reach a verdict.”

The trial judge also did not advise the jury that it

was required ultimately to agree upon a verdict,

which was the type of statement that this Court

found objectionable in Jenkins v. United States, 380

U.S. 445, 446 (1965) (“You have got to reach a

decision in this case.”). On the contrary, the judge

on three occasions reminded the jurors that, if they

could not agree on a sentence, he would impose a

sentence of life imprisonment without probation, pa-

role, or suspension of sentence. Those remarks sent

the clear message to the jurors that they were not re-

quired to render a verdict at all, and that their lack

of agreement would not lead to a new trial or to

another sentencing proceeding."

See United States v. Scott, 547 F.2d at 337; United States

V. Kahaner, 317 F.2d 459, 484-485 (2d Cir.), cert. denied, 375

U.S. 836 (1963); Berger v. United States, 62 F.2d 438, 440

(10th Cir. 1932).

"For that reason, these instructions did not suffer from

another defect commonly attributed to other variations of the

Allen charge, which have been criticized for placing undue

emphasis on the prospect of a retrial and the costs that it

would impose on both parties. E.g., United States v. Silvern,

484 F.2d at 880-881; United States v. Thomas, 449 F.2d at

1183; see United States v. Harris, 391 F.2d 348, 354-357 (6th

20

Petitioner contends (Br. 18-19) that the Allen

charge was coercive because it was given when the

jury announced that it was deadlocked, rather than

simply as part of the main body of sentencing in-

structions. But forbidding the trial judge from de-

livering an Allen charge at the time the jury en-

counters difficulties—particularly when, as in this

_case, the jury asks to be reinstructed—would largely

defeat its purpose. It is at the point at which jury

deliberations break down that the jurors most need

to be reminded of their duty to deliberate in good

faith and with a willingness to consider the opinions

of the other jurors. Moreover, a jury that has diffi-

culty reaching a verdict will often look to the trial

judge for guidance and encouragement. Ordering the

judge to remain silent in that setting will leave the

jury in distress and can only lead to confusion among

the jurors as to what they should do. When the jury

asks for help from the court, it is only reasonable to

permit the court to give it. United States v. Kahaner,

317 F.2d 459, 484 (2d Cir.), cert. denied, 375 U.S.

836 (1963) (“it was quite natural for the judge to

comply with the request, as the absence of any ob-

jection or exception from defense counsel confirms”) ;

White v. United States, 279 F.2d 740, 750 (4th Cir.),

cert. denied, 364 U.S. 850 (1960).

Contrary to petitioner’s contention, the policies

underlying the Allen charge are applicable to the

sentencing phase of a case as well as the guilt phase.

The state has a legitimate interest in having the jury

“express the conscience of the community on the ulti-

mate question of life or death.” Witherspoon v. IIli-

nois, 391 U.S. 510, 519 (1968) (footnote omitted) ;

Cir.), cert. denied, 393 U.S. 874 (1968); compare United

States v. Angiulo, 485 F.2d at 39 (charge made extensive

references to expenses of trial).

: 21

see Spaziano v. Florida, 468 U.S. 447, 463 (1984);

id. at 468-470, 480-481 (Stevens, J., dissenting). An

Allen charge may help to ensure that each juror will

perform his sworn responsibility to fix an appropri-

ate punishment based on the considerations relevant

to the case. In light of the state’s legitimate interest

in obtaining a jury verdict on the weighty matter of

sentencing, a charge that helps ensure that the jury

will perform its duty—in the face of great tempta-

tion to avoid doing so—is a perfectly legitimate

charge for a court to give, as long as it is not un-

fairly coercive.”

Petitioner repeatedly asserts (Br. 14, 16, 22-24

& n.15) that the effect of the trial court’s charge in

this case was to communicate to the jury that the

court wanted the jury to return a verdict of death. In

fact, it is far from clear that that was the effect of

the court’s charge. It is true that the court on sev-

eral occasions advised the jurors that if they could

not reach a verdict the court would impose a life

'* A common criticism of the Allen charge is that it under-

mines a defendant’s right to a unanimous verdict. That

criticism actually has less force in the sentencing phase than

in the guilt phase of a trial. Unlike the right to a jury trial

on the issue of guilt, a defendant has no constitutional right

to have the jury determine his sentence. Spaziano Vv. Florida,

468 U.S. at 457-465; Proffitt v. Florida, 428 U.S. 242, 252

(1976) (opinion of Stewart, Powell, & Stevens, JJ.). While

due process in some cases may protect the defendant’s right

under state law to have the jury make findings at sentenc-

ing (see Cabana v. Bullock, 474 U.S. 876, 387-288 n.4 (1986) ;

Hicks v. Oklahoma, 447 U.S. 343 (1980)), the state may

authorize a trial judge to override a jury’s recommendation

of life imprisonment (Spaziano v. Florida, supra). An Allen

charge—even one that has the effect of communicating to

the jury that the judge favors the death penalty—obviously

involves a much less intrusive role by the court than a deci-

sion to override the jury’s sentencing recommendation.

iil

22

sentence. But that instruction did not necessarily

suggest that the court favored the death penalty; the

jurors could have interpreted it to mean that the

court would impose a life sentence as a matter of

choice and that the court therefore did not favor the

death penalty in this case. In addition, rather than

encouraging the forces on the jury who favored the

death penalty, the court’s instruction might have had

the opposite effect. By informing the jury that the

alternative to a capital sentence would be a no-parole

life sentence, the court’s instructions may have re-

lieved pressure within the jury for a verdict of death

based on some jurors’ possible concern that their fail-

ure to reach a verdict would result in no sentence at

all or only a short prison term. By assuring the jury

that its failure to reach a verdict on sentence would

not result in a windfall for the defendant, the court’s

instructions thus may have encouraged any jurors

who were reluctant to vote for the death penalty to

continue to resist that verdict.

Petitioner contends (Br. 19-20) that the modified

Allen charge used here lightened the state’s burden of

proving at least one aggravating circumstance be-

yond a reasonable doubt before the jury could con-

sider a capital sentence. That claim lacks merit. The

supplemental instruction did not in any way reduce

the stat@s burden of proof, nor did it imply that the

jury could resolve its difficulty in reaching a unani-

mous verdict by using a lower standard of proof (see

J.A. 44 (trial court’s main sentencing instructions) ).

In fact, the second modified Allen charge used by the

court was identical to the one found in the main sen-

tencing instructions. There is no more reason to be-

lieve that the jury was misled by the second modified

Allen charge than by the first one. It is nothing more

than speculation to suppose that the jurors will for-

23

get the main body of instructions given by a trial

judge, including the instructions on the government’s

burden of proof, simply because the judge supple-

ments that charge once the jury signals that it is hav-

ing difficulty reaching a verdict. Cf. Hyde v. United

States, 225 U.S. at 383."

Finally, the fact that the jury returned a verdict

after only another half hour of deliberation follow-

ing the Allen charge does not suggest that the Allen

charge was unfairly coercive. See United States v.

Smith, 635 F.2d 716, 721-722 (8th Cir. 1980) (45-

minute period between charge and verdict not indica-

tive of coercion) ; United States v. Dawkins, 562 F.2d

567, 570 (8th Cir. 1977) (same); Andrews v. United

States, 209 F.2d 127, 130 (5th Cir. 1962) (25-min-

ute period). The charge given by the trial court

forcefully reminded the jurors not to relinquish their

honest beliefs just to reach a verdict. Although the

fact that the jury reached a verdict following the

Allen charge obviously suggests that the charge had

some effect, there is no reason to suppose that the

effect was the improper one of coercing a verdict,

rather than the entirely proper one of persuading the

'* To bolster his argument, petitioner relies (Br. 19) on the

rule adopted by the First and Eighth Circuits that a supple-

mental instruction should reiterate the government’s burden

of proof. See United States v. Angiulo, 485 F.2d 37, 43 (1st

Cir. 1973) ; Potter v. United States, 691 F.2d 1275, 1280 (8th

Cir. 1982). These two circuits stand alone on this point. The

Allen decision does not require the jury to be reinstructed on

the government’s burden of proof (164 U.S. at 501-502), and

the other federal courts of appeals have not adopted such a

rule. Even the two circuits that have required a reinstruction

on the burden of proof have done so in the exercise of their

supervisory powers, and have not held that such a reinstruc-

tion is constitutionally required.

24

jury to make another good faith effort to reach agree-

ment.

B. Polling The Jury To Determine The Utility Of Further

Deliberations, Even In Conjunction With The Modified

Supplemental Allen Charge, Was Not Coercive

Relying upon this Court’s decision in Brasfield v.

United Staies, 272 U.S. 448 (1926), petitioner also

challenges (Br. 14-16) the court’s poll of the jury

on the question whether further deliberations would

be useful. The inquiry undertaken by the trial judge

in this case, however, is not the type of inquiry that

the Court condemned in Brasfield, and it did not have

the coercive impact of the inquiry at issue in that

case.

1. Brasfield must be read against the background

of the Court’s decision in Burton yv. United States,

196 U.S. 283 (1905). In Burton, the trial judge

asked the jury for its numerical division before de-

livering an Allen charge. 196 U.S. at 305. The con-

viction was reversed on other grounds, but this Court

disapproved of the judge’s inquiry. The Court em-

phasized that, from the standpoint of “the proper ad-

ministration of the law,” there was no need for the

inquiry, since “[a]ll that the judge said in regard

to the propriety and duty of the jury to fairly and

honestly endeavor to agree could have been said with-

out asking for the fact as to the proportion of their

division” (id. at 308). The Court added that, be

cause “[c]ases may easily be imagined where a prac-

tice of this kind might lead to improper influences,”

the practice should not be followed (ibid.).

In Brasfield, the jury deliberated for several hours

without reaching a verdict. The judge then brought

the jury into court and asked the foreman how the

jury stood numerically. The foreman replied that

25

the jury stood nine to three, without indicating

which number favored a conviction. 272 U.S. at 449.

The judge then delivered a modified Allen charge.

Transcript of Record at 95, Brasfield v. United

States, No. 243, 1926 Term. This Court reversed in a

brief opinion, ruling that district courts should not

ask a deadlocked jury for its numerical division. The

Court explained that the inquiry “serves no useful

purpose that cannot be attained by questions not re-

quiring the jury to reveal the nature or extent of its

division” (272 U.S. at 450). The Court held that such

an inquiry would be treated as per se reversible er-

ror, since the practice will generally have a coercive

effect that is difficult to assess in a particular case

(ibid.).

Two aspects of the decision in Brasfield are sig-

nificant here. First, the ruling in Brasfield rested on

the Court’s supervisory power, and not the Constitu-

tion, as the federal courts of appeals have unani-

mously concluded. While the opiriun stated that the

*In habeas corpus actions challenging state convictions,

the courts of appeals have uniformly rejected a requirement

of reversal per s2 in favor of determining whether the ac-

cused was actuziiy prejudiced under the totality of the cir-

cumstances. See Williams y Parke, 741 F.2d 847, 851 (6th

Cir. 1984), cert. denied, 479 U.S. 1029 (1985); Locks v.

Sumner, 703 F.2d 403, 405-407 (9th Cir.), cert. denied, 464

U.S. 933 (1983) ; United States ex rel. Kirk v. Director, Dep’t

of Corrections, 678 F.2d 723, 725-727 (7th Cir. 1982) ; Cornell

V. lowa, 628 F.2d 1044, 1047-1048 (8th Cir. 1980), cert. de-

nied, 449 U.S. 1126 (1981); Ellis v. Reed, 596 F.2d 1195,

1197-1198 (4th Cir.), cert. denied, 444 U.S. 973 (1979) ; Jones

V. Norvell, 472 F.2d 1185, 1186 (6th Cir.), cert. denied, 411

U.S. 986 (1973); Marsh v. Cupp, 392 F. Supp. 1060, 1063-

1064 (D. Or. 1975), aff’d, 536 F.2d 1287, 1290-1291 (9th

Cir.), cert. denied, 429 U.S. 981 (1976).

State courts have also generally ruled that the Brasfield

rule does not rest on the Due Process Clause. See, e.g., People

v. Carter, 68 Cal. 2d 810, 815, 442 P.2d 353, 356, 69 Cal.

| ’

26

rule adopted by the Court was “essential to the fair

and impartial conduct of the trial” (272 U.S. at 450),

nowhere did the opinion mention the Due Process

Clause or any other constitutional provision. And a

reading of the Burton case, on which Brasfield was

based, makes it clear that the Court was employing

its supervisory power over the federal courts to di-

rect that the inquiry not be made in federal cases

because of the risk that it “might lead to improper

influences” in some instances.

Second, the decision in Brasfield rested on three

factors: (1) the judge’s solicitation (2) of the jury’s

numerical division (3) followed by the use of an Al-

len charge. The importance of those factors is im-

plicit in both Brasfield and Burton, and the federal

courts of appeals have read Brasfield as limited to

that factual context. They have not required that a

conviction automatically be reversed when informa-

tion is not solicited by the judge, but is volunteered

by the jurors.’* They also have not required reversal

Rptr. 297, 300 (1968); State v. Rickerson. 95 N.M. 666,

625 P.2d 1183, cert. denied, 454 U.S. 845 (19%1); Séiate Vv.

Fowler, 312 N.C. 304, 307-308, 322 S.E.2d 385, 391-392

(1984); Muhammad v. State, 243 Ga. 404, 407-408, 254

S.E.2d 354 358-359 (1979); State v. Roberts, 131 Ariz. 513,

515-514, 642 P.2d 858, 860-861 (1982); cf. Mayfield v. State,

302 Md. 624, 631-632 & n.3, 490 A.2d 687, 691-692 & n.3

(1985) (no reversil’e error when a jury voluntarily reveals

its division, distingvishing the voluntary disclosure from

Brasfield). Some courts, however, have exercised their su-

pervisory power to forbid trial judges from polling the jury.

E.g., People v. Luther, 53 Mich. App. 648, 219 N.W.2d 812

(1974).

15 E.g., United States v. Rengifo, 789 F.2d 975, 985 (1st

Cir. 1986) ; United States v. Akbar, 698 F.2d 378, 380 (9th

Cir.), cert. denied, 461 U.S. 959 (1983); United States v.

Cook, 663 F.2d 808, 809 n.3 (8th Cir. 1981); United States

v. Warren, 594 F.2d 1046, 1049 n.3 (5th Cir. 1979) ; United

27

when the judge asks whether further deliberations

would be useful, rather than how the jury is divided."

And they have not reversed convictions when the

judge’s inquiry is not followed by an Allen charge.”

2. The trial court’s inquiry in this case did not

run afoul of Brasfield for both of the reasons dis-

cussed above. First, because this is a state prosecu-

tion, the supervisory rule adopted in Burton and

Brasfield is inapplicable. The issue instead is whether

the inquiry by the court was so coercive as to violate

petitioner’s rights under the Constitution. Second,

the inquiry in this case was not an inquiry into the

numerical division of the jury, but only into whether

the jurors believed further deliberations would be

useful—a very different matter from the inquiry at

issue in Brasfield.

States v. Diggs, 522 F.2d 1310, 1322 (D.C. Cir. 1975), cert.

denied, 429 U.S. 852 (1976) ; United States v. Jennings, 471

F.2d 1319, 1313-1314 (2d Cir.), cert. denied, 411 U.S. 935

(1973); Gafford v. Warden, 434 F.2d 318, 319 (10th Cir.

1970) ; United States v. Sawyers, 423 F.2d 1335, 1340-1341

(4th Cir. 1970) ; Sanders v. United States, 415 F.2d 621, 629,

631-632 (5th Cir. 1969), cert. denied, 397 U.S. 976 (1970) ;

United States v. Rao, 394 F.2d 354, 356 (2d Cir.), cert. de-

nied, 393 U.S. 845 (1968) ; Bowen v. United States, 153 F.2d

747, 752 (8th Cir.), cert. denied, 328 U.S. 835 (1946). But

see United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984).

'® United States v. Smoot, 463 F.2d 1221, 1223 (D.C. Cir.

1972) ; Carlton v. United States, 395 F.2d 10, 11 (9th Cir.

1968), cert. denied, 393 U.S. 1030 (1969) ; United States v.

Mack, 249 F.2d 321, 324 (7th Cir. 1957), cert. denied, 356

U.S. 920 (1958) ; see United States ex rel. Anthony v. Sielaff,

552 F.2d 588, 590 (7th Cir. 1977); United States v. See,

505 F.2d 845, 851 (9th Cir. 1974), cert. denied, 420 U.S. 992

(1975).

7 Beale v. United States, 263 F.2d 215 (5th Cir. 1959) ;

Butler v. United States, 254 F.2d 875 (5th Cir. 1958); see

also United States v. Rogers, 289 F.2d 433, 435 n.5 (4th Cir.

1961) (dictum).

28

The inquiry as to whether further deliberations will

be useful should not be treated in the same manner as

an inquiry into the jury’s division, because determin-

ing whether further deliberations would be useful has

the legitimate purpose of helping the court decide

whether to declare a mistrial. The decision whether

a mistrial should be declared because the jurors

are unalterably deadlocked is a difficult one and can

have serious repercussions for both parties. See Ari-

zona V. Washington, 434 U.S. 497, 509-510 (1978);

United States v. Graham, 758 F.2d 879, 884 (3d

Cir.), cert. denied, 474 U.S. 901 (1985); United

States v. Goldstein, 479 F.2d 1061, 1069 (2d Cir.),

cert. denied, 414 U.S. 873 (1973). It is a step that

ought to be taken with caution and only after the

judge concludes that continued deliberations would be

pointless. Given the importance of the decision, a

trial judge ought to have as much information as rea-

sonably possible before determining whether to dis-

charge the jury. The single most important fact bear-

ing on that decision is how the jurors themselves feel

about the likelihood that continued deliberations may

result in a verdict. Just as it would be unfortunate to

discharge a jury that can reach agreement, so too it

would be unreasonable to force jurors to prolong their

deliberations if all or most ef them doubt that a con-

sensus can be reached. Determining the utility of

further deliberations therefore is an entirely legiti-

mate reason to question the jurors. United States

ex rel. Anthony v. Sielaff, 552 F.2d 588, 590 (7th

Cir. 1977); see United States ex rel. Webb v. Court

of Common Pleas, 516 F.2d 1034, 1043-1044 (3d

Cir. 1975).

Besides serving a legitimate and important pur-

pose, an inquiry of the sort conducted in this case is

not inherently coercive. It is not designed to, and

29

need not, elicit the jurors’ numerical division. Jurors

convinced of the defendant’s guilt may believe with

equal conviction that the deadlock cannot be broken.

Jurors not convinced beyond a reasonable doubt may

be open to persuasion and may have additional con-

cerns they would like to explore in further delibera-

tions. Contrary to petitioner’s assumption, the ju-

rors’ assessments of the prospects for a verdict thus

do not inevitably reflect the jury’s division on the

underlying issue.

Finally, the inquiry is neutral. It does not by its

nature suggest that the judge desires any particular

outcome. It asks only whether the jurors wish to con-

tinue their deliberations. In fact, trial judges often

ask juries about the progress of deliberations for

reasons totally divorced from resolving a deadlock—

e.g., to plan mealtimes or to make accommodations

for sequestration of the jury. Thus, it cannot be pre-

sumed that an inquiry of the sort conducted in this

case is inevitably coercive, and for that reason, it

would be inappropriate to extend the rule adopted in

Bras field to this kind of inquiry."

'® Although the issue is not directly presented in this case,

we believe that in the appropriate case this Court may wish

to reconsider the aspect of Brasfield that requires reversal in

any federal case in which the court inquires into the division

of the jury. At the time Brasfield was decided in 1926, every

circuit endorsed a version of the Allen charge that included a

passage specifically directed to jurors in the minority. See

Fulwood vy. United States, 369 F.2d 960, 962 & n.3 (D.C. Cir.

1966) (collecting cases), cert. denied, 387 U.S. 934 (1967).

The combination of asking the jurors about their numerical!

division and admonishing the jurors in the minority to re-

think their views must have seemed to the Court to be a

virtual guarantee of coerciveness. But several circuits today

forbid an admonition specifically directed to the minority

30

* * * * *

In sum, we submit that the two procedures chal-

lenged here—the delivery of an Allen charge and the

inquiry of the jurors as to whether further delibera-

tions would likely be productive—are both legitimate

steps for a trial court to take when a deliberating

jury has difficulty reaching a verdict. And even if

those measures can be coercive under some circum-

stances, nothing in the record suggests that those

steps had a coercive effect on the jury in this case.

CONCLUSION

The judgment of the court of appeals should be af-

firmed insofar as that court rejected petitioner’s

claim that the jury was coerced into returning a capi-

tal sentence.

jurors. When that is the case, the Court’s fears about the

“general[] harmful[ness]” of such an inquiry (Brasfield,

272 U.S. at 450) should be greatly alleviated.

Furthermore, since Brasfield was decided, this Court has

emphasized that “it is the duty of a reviewing court to con-

sider the trial record as a whole and to ignore errors that are

harmless” (United States v. Hasting, 461 U.S. 499, 509

(1983)), and that the courts are capable of discerning

whether most errors, including most constitutional violations,

are prejudicial (see Rose v. Clark, No. 84-1974 (July 2, 1986),

slip op. 8. 9 & n.7). Two decisions are particularly relevant.

United States vy. Hasting, 461 U.S. at 505-512, ruled that the

federal courts may not invoke their supervisory power to up-

set a conviction if an error is harmless. Similarly, United

States v. Lane, 474 U.S. 438, 444-446 (1986), held that the

per se rule adopted in McElroy v. United States, 164 U.S. 76

(1896), that the misjoinder of offenses requires reversal,

must be re-examined in light of the subsequent developments

in the harmless error doctrine. The decisions in Hasting and

Lane support the conclusion that the procedural rule adopted

in Brasfield should not call for reversal in every case regard-

less of the circumstances.

31

Respectfully submitted.

SEPTEMBER 1987

CHARLES FRIED

Solicitor General

WILLIAM F.. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

Ee eee ae

APPENDIX

1. The supplemental jury instruction approved in

Allen provided, in relevant part, as follows (Tran-

script of Record at 137-138, Allen v. United States,

No. 371, 1896 Term) :

The only mode provided by our Constitution

and laws for deciding questions of fact in crimi-

nal cases is by the verdict of the jury. In a

large proportion of cases, and, perhaps, strictly

speaking, in all cases, absolute certainty can not

be attained or expected. Although the verdict to

which a juror agrees must of course be his own

verdict, the result of his own convictions, and

not a mere acquiescence in the conclusion of his

’ fellows, yet, in order to bring twelve minds to a

unanimous result, you must examine the ques-

tions submitted to you with candor and with a

proper regard and deference to the opinions of

each other. You should consider that the case

must at some time be decided; that you are se-

lected in the same manner and from the same

source from which any future jury must be, and

there is no reason to suppose that the case will

ever be submitted to 12 men more intelligent,

more impartial, or more competent to decide it,

or that more or clearer evidence will be produced

on the one side or the other. And with this view

it is your duty to decide the case if you can con-

scientiously do so. In order to make the decision

more practicable, the law imposes the burden of

proof on the one party or the other in all cases.

In the present case the burden of proof is upon

the Goverment of the United States. But in con-

(la)

we

2a

ferring together you ought to pay proper respect

to each other’s opinions and listen with a dis-

position to be convinced to each other’s argu-

ments. And, on the other hand, if much the

larger number of your panel are for conviction,

a dissenting juror should consider a doubt in his

own mind is a reasonable one, which makes no

impression upon the minds of so many men,

equally honest, equally intelligent with himself,

and who have heard the same evidence, with the

same attention, with an equal desire to arrive

at the truth, and under the sanction of the same

oath. And, on the other hand, if a majority are

for acquittal, the minority ought to seriously ask

themselves whether they may not reasonably and

ought not to doubt the correctness of a judgment

which is not concurred in by most of those with

whom they are associated, and distrust the

weight or sufficiency of that evidence which fails

to carry conviction to the minds of their fellows.

2. The Fifth and Eleventh Circuits have approved

a supplemental instruction that takes the following

form (see U.S. Fifth Circuit District Judges Asso-

ciation, Pattern Jury Instructions—Criminal Cases

168-169 (1978); U.S. Eleventh Circuit District

Judges Association, Pattern Jury Instructions—

Criminal Cases 262-263 (1985) ):

I’m going to ask that you continue your delib-

erations in an effort to reach agreement upon a

_ verdict and dispose of this case; I have a few ad-

ditional comments I would like for you to con-

sider as you do so,

This is an important case. The trial has been

expensive in time, effort, money and emotional

strain to both the defense ana the prosecution.

3a

If you should fail to agree upon a verdict, the

case will be left open and may have to be tried

again. Obviously, another trial would only serve

to increase the cost to both sides, and there is no

reason to believe that the case can be tried again

by either side any better or more exhaustively

than it has been tried before you.

Any further jury must be selected in the same

manner and from the same source as you were

chosen, and there is no reason’to believe that the

case could ever be submitted to twelve men and

women more conscientious, more impartial, or

more competent to decide it, or have that more

or clearer evidence could be produced.

If a substantial majority of your number are

in favor of a conviction, those of you who dis-

agree should reconsider whether your doubt is a

reasonable one, since it appears to make no effec-

tive impression upon the minds of the others. On

the other hand, if‘a majority or even a less num-

ber of you are in favor of an acquittal, the rest

of you should ask yourselves again and most

thoughtfully whether you should accept the

weight and sufficiency of evidence which fails to

convince your fellow jurors beyond a reasonable

doubt.

Remember at all times that no juror is ex-

pected to give up an honest belief he or she may

have as to the weight or effect of the evidence;

but, after full deliberation and consideration of

the evidence in the case, it is your duty to agree

upon a verdict if you can do so.

You must also remember that if the evidence

in the case fails to establish guilt beyond a rea-

sonable doubt the Defendant should have your

unanimous verdict of Not Guilty.

a |

4a

You may be as leisurely in your deliberations

as the occasion may require and should take all

the time which you may feel is necessary.

I will ask now that you retire once again and

continue your deliberations with these additional

comments in mind to be applied, of course, in

conjunction with all of the other instructions I

have previously given you.

3. The American Bar Association has approved

the following standard for supplemental instructions

(Standards Relating to Trial by Jury § 5.4, at 145-

146 (1968) ):

Length of Deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the

court may give an instruction which informs the

jury:

(i) that in order to return a verdict, each

juror must agree thereto;

(ii) that jurors have a duty to consult with

one another and to deliberate with a view to

reaching an agreement, if it can be done

without violence to individual judgment;

(iii) that each juror must decide the case

for himself, but only after an impartial

consideration of the evidence with his fel-

low jurors;

(iv) that in the course of deliberations, a

juror should not hesitate to reexamine his

own views and change his opinion if con-

vinced it is erroneous; and

(v) that no juror should surrender his hon-

est conviction as to the weight or effect of

5a

the evidence solely because of the opiaion

of his fellow jurors, or for the mere pur-

pose of returning a verdict.

(b) If it appears to the court that the jury has

been unable to agree, the court may require the

jury to continue their deliberations and may give

or repeat an instruction as provided in subsec-

tion (a). The court shall not require or threaten

to require the jury to deliberate for an unreason-

able length of time or for unreasonable intervals.

(c) The jury may be discharged without having

agreed upon a verdict if it appears that there is

no reasonable probability of agreement.

WT UG. S. GOVERNMENT PRINTING OFrice; 1967 181483 60008