Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, January 23, 2019

Brewster: Habeas Relief Warranted Where Court Exerted Coercive Pressure on Holdout Juror and Counsel Failed to Object

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."