Judge Who Returned Jury to Deliberate Over Holdout Juror’s Dissent Committed Plain Error Under Fed. R. Crim. P. 31, Holds Seventh Circuit

In United States v. Banks, No. 19-3245 (7th Cir. Dec. 18, 2020), the Seventh Circuit vacates a conviction that the panel holds was “unacceptably coercive,” when the trial judge exposed a dissenting juror during a poll, then sent the jury back to deliberate at 9pm.

The United States prosecuted a federal employee who was charged with collaborating in a plot to rob a post office. After a five day trial, the jury adjourned to deliberate at 4:45pm. It returned four hours later with a mixed verdict. Banks’s counsel polled the jury, and discovered that Juror No. 32 felt “[f]orced into” convicting the defendant. The colloquy continued:

“THE COURT: Is it your verdict that she is guilty on both Counts One and Two?

“JUROR NO. 32: I don’t know how to answer that.

“THE COURT: I’m asking you to answer that at this time.

“JUROR NO. 32: I feel like I need more time.

“THE COURT: Let me go finish the poll, and then I’ll come back to you.”

Following the poll and a sidebar, the judge reinstructed the jury on unanimity and sent it back to deliberate at 8:55pm. Deliberations resumed at 9:06 p.m. Just 29 minutes later, the jury returned a verdict finding Banks guilty on both counts. The judge again polled the jury, and this time all jurors confirmed that the verdict was unanimous.”

The Seventh Circuit vacates and remands. Although Banks did not object, the panel holds that the circumstances described constituted coercion even under a plain-error standard.

First, the holdout juror informed the court that he was “forced into” the verdict. “Juror 32’s response was alarming enough that an immediate sidebar with counsel was warranted.” Yet the trial judge pressed him with more questions. “[T]he judge again asked him, ‘Is this your verdict?’ And he responded, ‘I suppose so,’” which “certainly does not convey affirmance of the verdict.”

“More concerning is the judge’s next request: ‘I’m asking you to answer that at this time.’ The government argues that this was a neutral inquiry intended only to clear up the uncertainty in Juror 32’s responses. We see it differently. By this time there was no uncertainty about Juror 32’s position. He had already said he was ‘forced into’ the verdict, and he did not retreat from that position when asked two more times.”

Second, “[t]he way in which the judge conducted the jury poll also informs our analysis. Although criminal defendants are entitled to poll the jury, the judge must conduct the poll in a manner that minimizes its coercive effect.” Yet the judge’s decision to complete the poll after Juror 32 rejected the verdict exposed him as the sole holdout.

Third, when the judge reinstructed the jury on unanimity, it did not repeat the standard caution (commanded by circuit authority) “not to surrender their honest beliefs.” As the panel notes, “[t]he likelihood of coercion would have been diminished had the judge’s supplemental instruction included this important warning.”

Fourth, “[t]he timing of the judge’s instruction to continue deliberating also increased the likelihood of coercion. The jurors reached a verdict at about 8:45 p.m., after listening to hours of closing argument at the conclusion of a five-day trial and deliberating for about four hours. After the first poll revealed a dissenting juror, the judge returned the jurors to the jury room at 9:06 p.m. with an instruction to continue deliberations. Having just been identified as the lone holdout, Juror 32 no doubt well understood that he was the only person preventing his fellow jurors, the attorneys, and the judge from going home for the night. Under those circumstances any dissenting juror would have felt pressure to surrender his beliefs.”

Finally, “[a] verdict returned very quickly after the jury is given a supplemental instruction to continue deliberations may signal that a juror was coerced . . . . The jury returned its second verdict against Banks just 29 minutes after being instructed to continue deliberating. That rapid turnaround suggests that Juror 32 may have felt pressured into surrendering his views for the sole purpose of returning a unanimous verdict.”

Accordingly, “[t]he totality of the circumstances here created a clear and obvious risk of juror coercion. Juror 32’s ‘forced into’ response to the poll question is powerful evidence of impermissible coercion.”

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: