Criminal Law Blog

Show me the note! Defendants have a right to see all jury notes; judges cannot respond blindly to jury notes in the name of shielding themselves from the jury’s numerical split

Coley v. United States
(decided November 15, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion for the Court by Judge Glickman. Deborah A. Persico for Coley.  PDS as amicus curiae. Trial Judge: Michael Ryan.

Facts: Appellant was tried for assault with intent to kill and related offenses.  The defense was misidentification. On the third day of deliberations, the jury sent a note that it had reached a unanimous verdict. However, when the third juror was polled about whether she agreed with the verdict, she responded, “I can’t.” Judge Ryan stopped the poll and instructed the jury to continue deliberating. Twenty-five minutes later, Judge Ryan informed the parties that the jury had sent a note.  However, he had not read the note because his clerk had taken the note to Judge Canan so that Judge Ryan would not learn improper information such as a numerical split. The parties were not shown the note. 

Judge Canan reviewed the note, determined that it contained information Judge Ryan should not see, and advised Judge Ryan to remind the jury not to reveal its voting split. Judge Ryan proposed also telling the jury that he had not read the note, did not want to know who sent it, and that the jury should resume deliberations. Defense counsel moved for a mistrial. In the alternative, he requested the bracketed portion of Instruction 2.603, known as a Crowder instruction, to reduce the risk of coercion by instructing the jurors that they are not required to surrender their honest convictions. Defense counsel maintained that the note likely revealed an 11:1 split and that the dissenter was likely the juror who dissented in the poll. He argued that in the absence of a Crowder instruction, the court’s directive would signal to the lone holdout that she was required agree everyone else. Judge Ryan denied the request for a Crowder instruction on the ground that there was insufficient evidence of a likelihood of coercion and that defense counsel’s suggestion was speculative.

One hour later, the jury returned a unanimous verdict. The parties subsequently learned that the note was written by the poll dissenter and read, “I don’t feel that he did it.” Defense counsel moved for a new trial on the ground that the verdict was likely tainted by coercion. Judge Ryan denied to motion. 

Issue 1: Did the trial judge err in failing to disclose to defense counsel the contents of a jury note which it believed contained the numerical divide of the jury?

Holding: Yes.  The trial court “plainly erred” by withholding the juror’s note from appellant.  This was a “clear violation” of the court’s prior cases interpreting a defendant’s right to be present at every stage of the trial. The court explained that even if the trial judge needed to be shielded from who wrote the note and what it said, appellant should have been allowed to argue the significance of the note to the consulting judge, who was in effect a second decision maker in the case.

Issue 2: Did the trial judge abuse his discretion when he denied the defense request for a Crowder instruction, where he was ignorant of the jury note’s content and author, and the consulting judge was ignorant of context such as the prior poll breakdown? 

Holding: Yes. The court held that the trial judge lacked a firm factual foundation for his ruling because he was ignorant of material facts necessary to evaluate the likelihood of juror coercion. The two-judge procedure, while well-intentioned, was “flawed” because neither judge had sufficient information to evaluate the coercive potential of the situation or fashion an appropriate response. Judge Ryan did not know what the note said, and Judge Canan lacked contextual information, such as knowledge of the poll breakdown, necessary to advise Judge Ryan on how to respond. The court suggested that this problem could have been remedied if the parties had seen the note and been allowed to argue its significance to Judge Canan.     

Issue 3: Was there a substantial likelihood of a coerced verdict requiring a new trial?

Holding:  Yes.  The juror’s note both clarified that she had intended to publicly dissent from the verdict during the poll and revealed the settled nature of her belief. Because the follow-up note was from the poll dissenter alone and spoke only of her belief in innocence, it was a strong indication of her isolation in a jury that was 11:1 for conviction.  Unlike the typical poll breakdown where the split is unknown, after the note, the risk of coercion was sufficiently great to require an affirmative effort by the judge, such as a Crowder instruction, to dispel the risk that an instruction to continue deliberating would culminate in a coerced verdict.       

Of Note: 
• The Court’s opinion suggests that trial courts may continue to utilize a two-judge procedure to insulate the trial judge from knowledge of the jury’s division. However, counsel must be allowed to see the note, address the reviewing judge, and argue the note’s significance to the reviewing judge so that he or she can make an informed recommendation.  SS

Read the full opinion here.