Beware "civility" instructions that encourage deadlocked juries to reach a verdict.

Charles A. Grant v. United States, No. 11-CM-1134 (decided February 20, 2014).

Players:  Judges Blackburne-Rigsby, Easterly and King.  Opinion by Judge King.  Anna Scanlon for appellant.  Trial Judge:  Herbert B. Dixon.

Facts:   Mr. Grant was charged with one count of bias-related threats, bias-related assault, and two counts of possession of a prohibited weapon (bottle and knife), for allegedly threatening the complainant during a verbal altercation on a sidewalk, calling him a homophobic slur, throwing a bottle at him, and running towards him with a knife in hand.  Mr. Grant was ultimately acquitted of all counts except the bias-related threats count.  During deliberations, the jury sent three notes.  The first, close to four hours into deliberations, read, “We, the jury, can’t come to agreement of the identity of the assailant beyond a reasonable doubt.  We need further instructions.”  The trial court responded by instructing the jury, inter alia, that they should deliberate further and “keep an open mind about the case.”  The next day of deliberations, the jury sent a note saying, “We as a jury are hung.”  Both parties requested a Winters instruction, and the court gave an anti-deadlock instruction similar to that used in Williams v. United States, 52 A.2d 25, 45 (D.C. 2012). 

The third note was signed by a juror other than the foreman and read:  “The environment in our jury room has become very difficult.  Our ability to incorporate your most recent directions into our deliberations has become almost impossible.  Please advise us of our options.”  The note also contained a comment in a different handwriting:  “Jury members have been personally ‘targeted’ by juror members as doing ‘a piss poor job.’”  Because the trial judge was dealing with another jury at the time the note came in, he proposed that he and counsel go to the jury room and that he read them the note to the jury and tell them he would “look into” it and talk to them about it the next day.  Defense counsel objected to reading the note to the jury, but did not object to the procedure occurring in the jury room.  The next day, when the parties reconvened, defense counsel moved for a mistrial saying further deliberations would be inappropriate at this point.  The mistrial motion was denied.  The trial judge then read the jury what the Court of Appeals labeled a “civility” instruction, although the instruction included abundant language urging the jury to continue deliberations with an eye towards achieving a verdict.  After the trial court read the instruction defense counsel lodged some objections to its language and moved again for a mistrial.  The motion was again denied.  The jury returned a verdict soon after. 

Issues:  (1) Whether the court violated Super. Ct. Crim. R. 36-I by conversing with the jurors off the record in the jury room and whether that violation warrants reversal, and (2) whether the final instruction given by the trial judge was impermissibly coercive, warranting reversal. 

Holding:  On the Rule 36-I issue, the Court of Appeals held that the rule was violated but reversal was not warranted because Mr. Grant was not prejudiced.  On the coercion issue, the Court of Appeals dismissed the claim that a mistrial should have been granted with virtually no analysis, stating merely that trial courts have discretion to determine how to instruct jurors who are having trouble deliberating.  The Court focused the bulk of its attention on the so-called “civility instruction,” which it ultimately concluded was erroneous for at least two reasons:  (1) the trial court erred in telling the jury that its “purpose” was to reach a verdict, and (2) the trial court erred by omitting language to remind jurors that they should not surrender their honest convictions to secure agreement, because trial courts must “temper” any message that agreement is desirable with such language.  The Court of Appeals did not reverse, however, because it applied a plain error standard of review.  Although trial counsel had moved for a mistrial, counsel had not lodged objections to the instruction that paralleled the arguments raised (by new counsel) on appeal.  For this reason, the Court of Appeals held that plain error review applied.  And while the Court found there was error (and declined to decide whether the error was plain), it ultimately affirmed because it found that the appellant failed to demonstrate prejudice. 

Of note:  Trial counsel should make sure that they continue to be vigilant in articulating their objections when their initial requests are denied.  If a trial judge is going to give an instruction in lieu of a mistrial, as happened here, counsel must scrutinize the instruction for impropriety and request appropriate modifications.  In the jury coercion context, instructions must be balanced and cannot tell the jury that its purpose is to reach a verdict.  JF.

Read the full opinion here. 

Judicial No-No: Defendants are entitled to be resentenced by a different judge where trial judge warned them that “there will be jail time” if they rejected the government’s plea offer and went to trial.

Lindsay & Davis v. United States, Nos. 12-CM-1211 and 12-CM-1336

(decided Jan. 30, 2014)

Players: Fisher, Blackburne-Rigsby, King.  Opinion by Judge Fisher.  Joel R. Davidson for Ms. Lindsay.  David Carey Woll for Mr. Davis.  Trial judge: Brian Holeman.

Facts:  Ms. Lindsay, Mr. Davis, and a third (ultimately acquitted) co-defendant were charged with simple assault.  At a status hearing, the co-defendant announced that she was rejecting the government’s plea offer of a deferred sentencing agreement.  The trial judge then warned all three defendants that, if they were to reject the plea offer, go to trial, and be convicted of simple assault, “there really isn’t a question of whether there will be jail time because there will be” and that the only question will be “how much,” so they would be taking a “risk” in rejecting the plea offer (slip op. 3).  Despite this admonition, all three defendants rejected the government’s plea offers and went to trial.  After finding Ms. Lindsay and Mr. Davis guilty, the judge sentenced them both to a period of incarceration.  On appeal, the appellants requested resentencing by a different judge.

Held:  The trial judge’s statements “raise at least three fundamental concerns” (slip op. 5).  First, “they could be perceived as judicial participation in plea negotiations” in violation of Criminal Rule 11 (slip op. 5).  Second, they created an “unacceptable risk” that appellants were punished for exercising their Sixth Amendment right to go to trial (slip op. 6).  And third, it appeared that the trial judge “automatically incarcerated appellants according to a uniform policy,” which is an abuse of discretion under Houston v. United States, 592 A.2d 1066, 1068 (D.C. 1991), and other cases (slip op. 7).  In light of these issues, appellants were entitled to resentencing by a different judge. 

Of note:   

• This is one of several recent cases in which the DCCA has found that a trial judge abused his or her discretion by appearing to employ a “uniform policy” rather than exercising individualized judgment about a discretionary decision.  See Leander v. United States, 65 A.3d 672, 676-77 (D.C. 2013); Barbett v. United States, 54 A.3d 1241, 1246 (D.C. 2012).
• It is also the second case in recent years in which the DCCA has ordered resentencing by a different judge where it appeared that the original sentencing judge gave the defendant a harsher sentence as punishment for exercising a constitutional right.  See Thorne v. United States, 46 A.3d 1085 (D.C. 2012).  CM.

Read full opinion here