Juror who dissented early during the jury poll was not coerced into later agreeing with the verdict.

Leake v.United States, No. 11-CF-0554

(decided Oct. 17, 2013)

Players: Glickman, Blackburne-Rigsby, Nebeker.  Opinion by Judge Blackburne-Rigsby.  PDS and Jenner & Block for Mr. Leake.  Trial judge: Anthony C. Epstein.

Facts:  Robert Leake was charged with several gun-and-ammunition possession offenses.  Toward the end of the first full day of jury deliberations, the jury announced it had reached a verdict.  But when the court polled the jury, asking each juror if he agreed with the verdict, Juror Three answered “Sort of yes — I mean, no.  Not too much.”  The judge terminated the poll and told the jury, “I’m going to return the verdict form to the foreperson and I’m going to ask you to resume your deliberations and let me know when you’ve reached a verdict or if you have any questions.”  Defense counsel moved for a mistrial, citing the risk of Juror Three being coerced into going along with the verdict, especially since that juror had expressed concerns during jury selection about problems finding childcare while he was serving.  The trial judge denied the motion.  After about 30–40 minutes of additional deliberations, the jury again stated it head reached a verdict, and this time there was no dissent.

Issue: Whether it was impermissibly coercive to send the jury back for additional deliberations, without further instruction, after the third juror registered his dissent during the jury poll.

Held:  There was not undue coercion in this case.  The potential for coercion is minimal when a juror reveals his dissent early in the polling because other jurors have not yet revealed their own positions.  Here, the dissenting juror went third, so most of the other jurors had not yet been polled and the court terminated the poll right away.  Although the trial judge observed that the split was “probably eleven to one,” he did so after the jury had left the courtroom, and thus the dissenting juror was unaware that the judge believed he was the lone dissenter.  The trial judge’s instruction after terminating the poll — sending the jury back for further deliberations without additional comment — was neutral.  The judge did not tell the jurors they had to reach a unanimous verdict because he also told them they could come back with questions.  The trial judge also had the opportunity to observe Juror Three’s demeanor during the second poll, in which the juror agreed with the verdict, and found that he “didn’t seem to be equivocal.”  And the trial judge reasonably concluded that the additional 30 minutes or so of deliberations was enough time for the jurors to have talked things through.  Though a Crowder instruction — which tells the jury to remain faithful to their honest convictions — could have reduced the coercive potential, it was not required because the potential for juror coercion was only “nominal.”  

Of note:

·         The Court mentions the dissenting juror’s childcare concerns in the facts section of the opinion, but it doesn’t figure into the Court’s analysis of the coercive potential.  The breakdown in the jury poll happened as the deliberations for the day were close to winding down.  By quickly going along with the majority verdict, the dissenting juror ensured he would not have to come back the next day and thereby avoided any additional problems finding childcare.  Doesn’t that circumstance add significantly to whatever other pressure he might have felt to go along with the verdict?  It’s strange for the Court to just ignore this fact.

·         The Court’s ruling turns largely on the fact that the dissenting juror went early on in the poll, and the Court’s ruling in this regard is grounded in precedent.  But the polling order is an odd thing to focus on, since all of the reasons the Court has given for why a lone dissenting juror might feel coerced seem to be present even when many jurors have not been polled.  Certainly, though the exact division of the jury isn’t technically known, it seems pretty obvious that the split is probably 11-1, as the trial judge here figured.  After all, if the jury has gotten to the point where it announces it has reached a verdict, then everyone is supposed to be on board.  From the dissenting juror’s perspective, which is it what matters, he has every reason to think that the judge believes he is the sole holdout.  So most of the indicators of jury coercion the Court has identified — the dissenter’s identity has been revealed in open court, the division of the jury is known, the judge knows who the dissenter is, the dissenter knows the judge knows who he is, and the other jurors feel bound by the verdict they have announced — are present at least to some degree no matter when during the poll a juror dissents.

·         The Court finds the trial judge’s instruction neutral because he gave them the option of asking questions.  But he also told the jurors to let him know “when” they reached a verdict — not if they could.  And he said nothing to the jurors about the importance of not surrendering an honest conviction just to get a unanimous verdict.  This sounds like a recipe for a juror with childcare problems who thinks he’s going to be there forever unless he goes along with the other jurors’ verdict to feel pretty coerced.  The opportunity to ask questions wouldn’t change that. 

How to use:

·         When a juror dissents during the jury poll, keep the order of the poll in mind.  If a juror happens to dissent toward the end of the poll, then you’ve got an issue; but if a juror dissents early on during the poll, then it probably won’t matter on appeal unless the judge does something stupid to exacerbate the situation.  DG.