In Brewster v. Att'y Gen, Ala., No. 16-16350 (Jan.
22, 2019) (Ed Carnes, Branch, Fay), the Court reversed the denial of a
state-prisoner habeas petition alleging ineffective assistance of counsel.
Over the period of two days of deliberation, the jury
repeatedly told the court that they were deadlocked, sending six notes to that
effect. Although federal courts are
prohibited from inquiring about the breakdown, the Alabama jury here disclosed
how they were divided three times: first 9-3 in favor of conviction, then 11-1
in favor of conviction, and then that one juror was continuing to hold
out. The court gave a formal Allen
charge, two additional admonitions to continue deliberating, and then another
long instruction emphasizing that the jurors had taken an oath to follow the
law and that they must take that oath seriously. Then, when informed that the holdout juror
was doing crossword puzzles, the judge ordered all reading materials removed
from the jury room. Shortly thereafter,
the jury returned a guilty verdict.
Applying de novo review (rather than the normal AEDPA
deference), the Court found that, under those circumstances, trial counsel was
ineffective for failing to once object or move for a mistrial. There was no rational or strategic basis for
refusing to do so. Quoting Macbeth:
"It doesn't take the 'pricking of my thumbs' to know that 'something wickd
this way comes' for a defendant when a jury goes from 9 to 3 for conviction to
11 to 1 for conviction and the lone holdout faces the coercive circumstances
that this one did." Or, put another
way: "It doesn't take a Clarence Darrow to realize that if a jury has gone
from 9 to 3 in favor of conviction to 11 to 1 for it, and is complaining about
the lone holdout's behavior and her refusal to go along with the others, that
jury is not headed toward an acquittal."
And, the Court concluded, that deficient performance was prejudicial
because, due to the court's coercion exerted on the holdout juror, the defendant
was legally entitled to a mistrial under both state and federal law. A lthough "the holdout juror was not
threatened with branding or exsanguination, and the jury was not hauled around
in a court," which "would have passed muster in seventeenth-century
England," it did not not in "twenty-first century Alabama."
