Tuesday, March 4, 2014

Unlocking A Deadlock

On February 15th, 2014, news reports announced that a panel of Florida jurors found Michael Dunn guilty on three charges of attempted second-degree murder, and one count of firing a weapon into a vehicle.  These charges stemmed from a November 2012 altercation over loud music between Dunn and four teenagers at a local Jacksonville convenience store that left seventeen year-old Jordan Davis dead.  During the verbal exchange, Dunn saw what he believed to be a weapon.  He brandished a handgun from his car’s glove compartment and fired ten shots, nine of which hit the vehicle containing Tevin Thompson, Leland Brunson, Tommy Stornes, and Jordan Davis.  Of the nine shots that hit the car, three hit Davis.  Officers later discovered that the teenagers were unarmed.

A conviction for these four charges means that Michael Dunn could face several decades in prison.  Prosecutor Erin Wolfson stated that each attempted second degree murder conviction carries with it a minimum sentence of twenty years and a possible fifteen-year sentence for shooting into the vehicle, totaling seventy-five years.  Despite a conviction on these counts, the seven women and five men jury were unable to reach a verdict on this case’s most serious charge— first-degree murder.  After deliberating for an excess of thirty hours, spread over the course of four days, the jury was unable to reach a consensus, and the judge declared a mistrial on the first-degree murder charge.  Days later, Valerie, juror #4, explained that during deliberations eight jurors felt that Dunn was unjustified in killing Davis.  Of the remaining four jurors, two felt that he was justified, and two were unsure.

Michael Dunn will be sentenced on March 24th.  Florida State Attorney Angela Corey plans to retry Dunn on the first-degree murder charge.  Cases such as this, and instances of an impasse among jurors call for an examination of deadlock jury procedure.

Chapter 24 of LeFave & Scott’s Criminal Procedure guideline addresses issues relating to deadlocked juries.  After the jury has been deliberating for some time, the jury may report to the judge that it has been unable to reach a decision.  Judges may also encourage a deadlocked jury to reach a verdict through a form of instruction called an “Allen Charge” or “dynamite charge”.  The term dynamite charge was coined because of the instruction’s ability to blow apart a deadlock.  With the exception of a few state statutes that restrict the number of times a judge may order jurors to renew deliberations, judges may send jurors back to deliberate several times.

The Allen charge was birthed in the 1896 case, Allen v. United States.  In Allen, the Court ruled that a judge had the right to strongly encourage a deadlocked jury to continue deliberating until a verdict was reached.  Today, several variations of the Allen Charge are used in courts throughout the nation.  In giving the Allen Charge, a judge must take care to not make the supplemental instruction impermissibly coercive.

Deadlocked juries present a discouraging dilemma to trial judges and counsel hoping to avert costly retrials and avoid bogging down in a quagmire of drawn-out deliberations.  The primary danger jury deadlock poses for the unwary trial judge is the possibility of reversal on appeal due to the perception of court coercion.”

To ensure that this does not happen, a trial judge must avoid any appearance of an attempt to lead the jury to believe that they are required to reach a verdict.

In an effort to prevent jury coercion by trial judges, the Florida Supreme Court drafted a version of the Allen charge that “allows a jury to continue deliberations, even after it has announced its inability to do so, where there is a reasonable basis to believe a verdict is possible, while cautioning jurors that they should not abandon their views just to get a verdict or to accommodate the majority.  The text of Florida’s Allen Charge, which was first approved in State v. Bryan, 290 So. 2d 482 (Fla. 1974), reads as follows:

“I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far. Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case. We are all aware that it is legally permissible for a jury to disagree. There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be. There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law, I should clear them for you now. That should be my problem, not yours. If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved. I have only one request of you. By law, I cannot demand this of you, but I want you to go back into the jury room. Then, taking turns, tell each of the other jurors about any weakness of your own position. You should not interrupt each other or comment on each other's views until each of you had a chance to talk. After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation of your services. You may now retire to continue with your deliberations.”

Currently, Florida’s deadlock jury procedure dictates that once a jury informs the court that it is deadlocked, the trial judge should either declare a mistrial or read the Allen charge of Standard Jury Instruction 3.06.

Deadlocked juries are a quandary that elicited the following words of Brazilian diplomat and Director-General of the World Trade Organization, Roberto Azev√™do: “Each blockage is a blockage.  Each impasse is an impasse.  You have to find a solution; there is no recipe that fits each one of them.”  An Allen charge to deadlocked juries can be a resolution in some cases, but cannot be the end all solution that fits every case.  It seems that by declaring a mistrial on Michael Dunn’s first-degree murder charge, Judge Russell Healey enacted a solution that was within the bounds of Florida’s deadlock instruction framework.  Had Judge Healey decided to not declare a mistrial and prompted the jurors to continue deliberating, the ultimate outcome may have been similar to the 1999 Florida case of Thomas v. State, where the Supreme Court found reversible error due to an improper influence of the jury’s verdict.

For practitioners, deadlocked juries, mistrials, and ensuing retrials are financially taxing and place a strain on judicial resources.  However, jury research suggests that practitioners can take certain measures to reduce the likelihood of a deadlock occurring.  Kalven and Zeisel’s research findings suggest that “deadlocked juries occur more often in deliberations that begin with verdict driven approaches instead of evidence driven approaches; deadlock juries typically give much weaker rating to the power of the evidence and the clarity of the law than unanimous juries; and deadlocked juries are more likely to occur when there was one person in the group who refused to move off of their initial, and often weak position.”  With this information in mind, it would seem that practitioners would best be able to circumvent a deadlock by placing an over-and-above emphasis on the evidence consideration in their opening and closing statements.

Stephane L. Plantin
Staffer, Criminal Law Practitioner

Image by Dori (Own work), via Wikimedia Commons.

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