By Sarah Kelly-Kilgore
It’s late October, and we’ve finally reached my favorite season of the year: the leaves are changing, there’s post-season baseball to be watched, football weather to be enjoyed, and SCOTUSblog’s “Petitions to watch” to be discussed. The site’s last edition – discussing petitions up for consideration on October 15 – included a number of cases in the criminal field, encompassing such issues as ineffective counsel, jury instructions, sentencing factors, and felon disenfranchisement. Among those was Wong v. Smith, a petition arising out of the Ninth Circuit that may renew debate over the propriety of giving Allen instructions to a deadlocked jury. At issue in the case is whether a series of increasingly specific jury instructions given by the state judge coerced jurors into returning a guilty verdict.
Among the charges brought against respondent, Anthony Smith, Jr., in California state court was a count alleging Smith forced one of the home’s occupants to perform oral copulation. On the fifth day of deliberations, while the jury was still deadlocked on the charge, the judge accepted a note from Juror 10 indicating the juror was skeptical of the DNA evidence and the victim’s inconsistent identifications of her attacker, and could not in good conscience return a guilty verdict. In response, the judge issued a series of three instructions that increasingly focused on selected statements from each of the co-defendants and the consistencies and inconsistencies therein. Specifically, the judge summarized the statements – highlighting only passages that tended to support a guilty verdict – and explained what, in the court’s view, were the key portions of those statements to be considered. Within an hour, the jury returned a guilty verdict.
These instructions, then, seem to be a clear violation of the Allen principles recognized by the Court. After all, courts have reversed decisions where Allen-type instructions were given even where the judge knew only the numerical division of jurors on the merits, see United States v. Williams, 547 F.3d 1187, 1202-03 (9th Cir. 2008) (finding a “neutral” Allen charge to be improper when the judge was made aware via note of a lone dissenter prior to instruction), and where deliberation time following an Allen charge is so short as to indicate that the jury must have decided to go with the “majority rule,” see United States v. Rogers, 289 F.2d 433, 436 (4th Cir. 1961). However, because California’s constitution explicitly allows judges to comment on relevant evidence, seeCal. const. art. VI, § 10, the California Court of Appeal affirmed the conviction in an unpublished opinion, and the California Supreme Court denied review.
Smith filed a federal habeas petition pro se in the United States District Court for the Eastern District of California. The Ninth Circuit affirmed the decision granting Smith’s writ of habeas corpus by finding the California Court of Appeal’s decision to be an unreasonable application of established law. See Smith v. Curry, 580 F.3d 1071, 1073 (9th Cir. 2009), petition for cert. filed sub nom. Wong v. Smith, No. 09-1031 (Feb. 12, 2010). Specifically, the Ninth Circuit recognized that the trial judge – in direct response to the known concerns of the holdout juror – twice repeated, and thus emphasized, selected inconsistencies and provided an “incomplete, one-sided summary of the evidence” to the defendant’s detriment. Id.
So if the Ninth Circuit seems to have gotten the decision right, why grant cert.?
First, the last Allen-type case heard by the Court also involved a conviction in California state court and subsequent affirmance by the California Court of Appeal, after which the Ninth Circuit granted habeas relief. Finding the California Court of Appeal’s decision affirming the conviction not to be “an unreasonable application of clearly established federal law,” without deciding whether the trial judge’s neutral Allen-type instructions to a jury known to be divided 11-1 were coercive, the Court reversed the Ninth Circuit and held habeas relief improper. See Early v. Packer, 537 U.S. 3, 10-11 (2002). That the Ninth Circuit has already revisited the issue of coercive jury instructions indicates the question is far from resolved.
Allen-type instructions remain a powerful tool for trial judges to use in obtaining consensus from what can otherwise be contentious jurors. However, isn’t an instruction exhorting minority jurors to “consider the opinions of the majority and question whether their own opinions are reasonable” coercive in itself? And if not, where do courts draw the line in finding the language of instructions to be coercive? Significantly, California itself outlaws Allen-type instructions using language that asks the minority to reevaluate its opinion, see People v. Gainer, 566 P.2d 997 (Cal. 1977), while the Seventh Circuit and the District of Columbia Circuit allow only a standard instruction recommended by the American Bar Association, see United States v. Silvern, 484 F.2d 879 (7th Cir. 1973); see also United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971). The split among the circuit courts on these questions alone indicates the Court should hear Wong v. Smith to provide greater guidance on the issue.
Additionally, empirical studies conducted recently seem to conclusively indicate that Allen-type instructions have extremely coercive effects on jurors in the minority opinion. See Vicki L. Smith & Saul M. Kassin, Effects of the Dynamite Charge on the Deliberations of Deadlocked Mock Juries, 17 Law & Hum. Behav. 625, 627 (1993); Saul M. Kassin et al., The Dynamite Charge: Effects on the Perceptions and Deliberation Behavior of Mock Jurors, 14 Law & Hum. Behav. 537, 537 (1990). Don’t these results at the very least warrant a reevaluation by the Court?
Yes, Smith’s is an extreme case in that the judge went so far as to instruct jurors which evidence they should weigh most heavily. But aren’t these decisions – those apportioning the weight of the evidence – exactly those we want left in the hands of the jury? Doesn’t the fact this case even exists demand the Court grant cert.? Wong v. Smith was not included in the Court’s latest orders. Keep an eye out in the near future for resolution…
Petition for Writ of Certiorari, Wong v. Smith, No. 09-1031 (U.S. Feb. 12, 2010) can be found here.
UPDATE - SCOTUS denied cert. on this issue on November 1. Follow-up blog to be posted!
UPDATE 2 - Read the follow up post here!