Court’s “Anti-Deadlock Instructions Likely Coerced a Unanimous Verdict” Requiring Retrial, Holds D.C. Circuit

In United States v. Driscoll, No. 19-3074 (D.C. Cir. Jan. 5, 2021), the panel holds that the district court’s repeated efforts to force a verdict denied the defendant a fair trial and required that the conviction be vacated.

“Jury deliberations in Driscoll’s trial began on Tuesday, November 20. The jury deliberated for approximately 45 minutes before breaking for Thanksgiving. After returning on Monday, November 26, the jury sent a note to the District Court at 11:20 am, stating: ‘We have one person that has his mind made up and will not change his mind. What do we do?’” The judge gave what is known in the D.C. Circuit as a Thomas charge to urge deliberation. The charge, which originated with United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971) (en banc), exhorts jurors to work together but also not to abandon their sincerely-held beliefs.

After giving the Thomas charge, though, the judge added that “it it is really important, really important to the parties and to the community, to the country.”

The next day, the jury sent another note stating that one juror “has his mind made up, and he is not basing his decision on the facts. Is it possible to request an alternate juror?” The court called the jury back to the courtroom. Instead of giving a Thomas charge, the court directly confronted the deadlock: “I hope … that whichever juror this is, that he or she will embrace the spirit and the language that I read yesterday and will come around to keeping an open mind and discussing with the other jurors their position as it relates to the facts that they believe have been proven in this case.”

The following day, the jury reported that it had reached a verdict on three counts but deadlocked on two others. The judge gave the jury another Thomas charge. The jury reconvened again and returned a unanimous guilty verdict on all counts about an hour later.

The D.C. Circuit vacates the conviction. “In United States v. Thomas, this Court sought to prevent undue coercion on jurors by exercising its supervisory authority to mandate the use of standardized language in the anti-deadlock instruction given in this Circuit. See 449 F.2d 1177, 1184–86 (D.C. Cir. 1971) (en banc). We explained that ‘appellate courts should no longer be burdened with the necessities and niceties—and the concomitant uncertainties— of gauging various Allen-type renditions in terms of the coerciveness of their impact.’ Id. at 1186. In the years since Thomas, we have repeatedly cautioned district courts against ‘expanding on the Thomas script after a jury indicates deadlock.’”

But “over the course of three jury instructions, the District Court increasingly strayed from the language of Thomas.” The first supplemental instruction, appealing to “country” and “community,” arguably implied “that the jury had a duty to convict.” By itself, the panel holds that the first instruction did not violate Thomas. “The District Court shared the language about parties, community, and country after reciting the full Thomas instruction and thanking jurors for their work. Jury service is always a service to the parties, community, and country, and the acknowledgment of that fact could not reasonably be taken to suggest that a unanimous guilty verdict must be rendered, or that an individual juror should abandon her views.”

“Nonetheless, the District Court’s subsequent instruction deviated even further from Thomas . . . . While this second instruction reminded the holdout juror to ‘keep[] an open mind,’ it eliminated what we have described as Thomas’s ‘most significant’ element—’do not surrender honest conviction . . . for the mere purpose of returning a verdict,’ . . . while calling direct attention to the holdout juror . . . . An individual could have reasonably understood that language to mean she should become willing to change her mind, notwithstanding her honest convictions.”

“The District Court’s final instruction was additionally coercive” because it “included additional improvised remarks that twice reminded jurors to ‘keep an open mind’” without reminding them to maintain their honest convictions. “Under the circumstances of this case, where jurors had deliberated for sixteen hours, received prior sets of instructions including the Thomas instruction, and continued to report themselves deadlocked, the jury should at least have been reminded of the need to maintain honest convictions to ‘insure against even the suggestion of juror coercion’ … particularly when, in the third instruction, jurors were told three separate times to ‘keep an open mind.’ In other words, the potential for coercion was heightened by the timing of this final instruction.”

In the end, there was evidence that the third instruction was in fact coercive. “After deliberating for sixteen hours, the jury was deadlocked on two counts—but after receiving this third instruction, the jury took only one hour and ten minutes to reach a unanimous guilty verdict on those two remaining counts . . . . Taken together, the instructions in this case had a substantial propensity to coerce a holdout juror into foregoing her conscientiously held convictions in favor of a unanimous verdict.”

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