by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last week, in Brewster v. Alabama, the U.S. Court of Appeals for the 11th Circuit overturned a conviction because the defendant’s lawyer failed to object when, rather than accepting a jury’s report that it was deadlocked, the trial judge badgered the holdout juror until she agreed to convict. In his opinion for the court, Chief Judge Ed Carnes notes:
In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one method of “accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict. And if jurors did not unanimously agree on one before the judges left town … [t]hey were hauled around in [a] cart “until a judgment ‘bounced out.’” Which is to say until the resolve bounced out of the holdout jurors.
In one seventeenth-century sedition trial (involving William Penn and a co- defendant), the jury deadlocked on the most serious charge. The judge responded by threatening to have a juror named Bushel branded unless the jury agreed that the defendants were guilty as charged. When no verdict was forthcoming, the judge did not send for a branding iron, but he did have all the jurors “locked in the jury room without meat, drink, fire, and tobacco” until they could agree. After nicotine withdrawal and the prospect of starvation failed to work, “the judge threatened to cut Bushel’s throat” if there were no verdict. (Thus posing the prospect of a dead juror to unlock a deadlocked jury.) When even that threat did not bring forth a unanimous verdict, the judge gave up. Bushel escaped the experience unbranded and with his throat intact, while the jury as a whole escaped with its disagreement intact. But the judge was angry enough at the jurors’ failure to agree that he fined each of them forty marks for their intransigence. …
Since those days, we have come a long way and now accept that some jury deliberations will end in deadlock. … We no longer try to coerce holdout jurors to reach a verdict that they cannot abide. Or at least most of the time we don’t.
Regarding the case at hand, he adds:
To be sure, the holdout juror was not threatened with branding or exsanguination, and the jury was not hauled around in a cart. What happened at Brewster’s trial would have passed muster in seventeenth-century England, but in twenty-first century Alabama it does not. The coercive circumstances that led to the verdict undermined the fundamental fairness of the trial and the reliability of the verdict. Those circumstances entitled Brewster to a mistrial under Alabama law, and also under federal law.
[Citations omitted throughout.]