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Counsel Ineffective for Failing to Move for Mistrial When Court Coerces Unanimous Verdict

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that a defendant did not receive effective assistance of counsel when his attorneys failed to object and move for a mistrial while two judges coerced a jury to return a unanimous verdict.

Sumnar Robert Brewster was tried on two counts of armed robbery. After five hours on the first day of deliberations, the jurors sent a note to the judge, “We are nine guilty and three not guilty ... Everyone is firm in their decision.” The judged summoned the jury and asked the foreman, “Do you think there’s any way this case will be resolved on a unanimous verdict?” The foreman said, “No.” 

The judge then read Alabama’s pattern Allen instruction to the jury. Allen v. United States, 164 U.S. 492 (1896). After deliberating another 30 minutes, the jurors were sent home. 

On the following day, a different judge presided. Four more times the jury informed the judge they were firmly deadlocked, only now the split was 11 guilty and one not guilty. The judge admonished them to continue deliberating. At one point, the lone holdout refused to discuss the case any further. The judge brought the jurors into the courtroom and reminded them of their solemn oaths. He concluded with, “But you took an oath. I take mine seriously. I hope you do the same.” When the judge learned that the holdout refused to discuss the case and was doing crossword puzzles, he ordered the removal all newspapers, books, and magazines. Eighteen minutes later, a unanimous verdict was returned convicting Brewster on both counts of armed robbery. He was sentenced to life without parole.

Brewster filed for postconviction relief in state court. He claimed his trial attorneys “were ineffective for failing to move for a mistrial based on the jurors’ repeated declarations that they were deadlocked and/or failing to object to the court’s repeatedly ordering the jurors to continue deliberating.” The trial court dismissed the petition on the ground that an Allen charge is proper as long as it is not coercive or threatening, and “[A] review of all the language in the supplemental charge fails to show that any of it was coercive or threatening.”

The Court of Criminal Appeals affirmed, and the Alabama Supreme Court denied his request for certiorari. Brewster then filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus wherein he raised the same claims. The district court deferred to the state court’s decision and dismissed the petition on the same ground. The Eleventh Circuit granted a certificate of appealability. 

The Court determined that it owed no deference to the state courts’ decisions because those courts recast Brewster’s claims as a challenge to the lone Allen charge instead of addressing his claim that the repeated admonitions to the jury were coercive and warranted a mistrial had his attorneys moved for one. Reaves v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1137 (11th Cir. 2017).

The Court next stated the standard of review for ineffective assistance of counsel claims: (1) deficient performance of counsel and (2) prejudice suffered as a result of counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668 (1984). The reviewing court may consider either the performance or prejudice first. Id.

The Court then relied on United States v. Woodard, 531 F.3d 1352 (11th Cir. 2008), in examining the totality of the circumstances “to see if the trial court’s actions created a substantial risk that one or more jurors would be coerced into abandoning their honest convictions.” 

The Court noted that Brewster’s jury deliberated only 11 hours over two days. But during those 11 hours, the jury reported being deadlocked five times. The Court stated that “five instructions aimed at breaking a deadlock is a lot ....”

Additionally, coercive “[p]ressure on jurors, especially holdout jurors, is increased when the instructions to keep trying to reach unanimity come from a judge who knows how split the jury is and in which direction.” When the jury is aware that the court knows it is split in favor of conviction and the court repeatedly instructs the jury to reach a verdict, the jurors in the minority feel pressured to change their decision to placate the judge. Lowenfield v. Phelps, 484 U.S. 231 (1988). 

The Court also said the “trial judge may have stepped [over] the line” when after learning the lone holdout refused to discuss the case, the judge stated, “You took an oath. I take mine seriously. I hope you do the same.” In Kelsey v. United States, 47 F.2d 453 (5th Cir. 1931), the Court reversed because the judge was coercive when he said to the deadlocked jury, “[S]ome of you have forgotten ... your oaths as jurors.”

Finally, the Court looked at how quickly the jury reached a unanimous decision after the judge’s last instruction (34 minutes) and action (18 minutes after reading material was removed). When a verdict is returned soon after the last instruction, it suggests coercion. Lowenfield.

Having found that Brewster was prejudiced by the judges’ coercion of the jury, the Court then determined if his attorneys were deficient in failing to move for a mistrial. Since Brewster’s jury was deadlocked 11 to one favoring conviction, his attorneys knew continued deliberations would likely result in conviction, but a mistrial would get a new trial. Thus, the attorneys were deficient.

Accordingly, the Court reversed the district court’s denial of the petition for a writ of habeas corpus. See: Brewster v. Hetzel, 913 F.3d 1042 (11th Cir. 2019). 

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