Attorney should have asked for a mistrial given a judge’s repeated direction to the jury to continue deliberating

Brewster appealed from his denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus in which he claimed his trial counsel rendered ineffective assistance by failing to move for a mistrial as any point during the deadlocked jury deliberations. In the decision issued in Brewster v Heztel, the Eleventh circuit court of appeals agreed and reversed his Alabama state court conviction.

Brewster was tried on two counts of armed robbery. On the second day of Brewster’s trial the case went to the jury. During the course of the deliberation the jury reported being deadlocked five times, once on the first day and four times on the second. The firmness of the deadlock increased as deliberations continued. The first note reported the split was 9 to 3. When asked by the judge whether there was any way the case would be resolved with a unanimous jury the foremen answered no. The second note reported that the jury could not reach a unanimous decision and that one juror had decided not guilty and that no amount of time was going to sway them. A third note reported that all jurors have decided firmly eleven guilty and one not guilty with no possibility of resolve. The fourth note said the holdout was unwilling to discuss the case. The fifth note informed the judge that the holdout was refusing to discuss the case and was doing crossword puzzles instead.

After each of the four deadlock reports, the judge gave instructions requiring them to continue deliberating and try to reach a unanimous verdict. After the fifth deadlock report the judge had all of the reading materials taken out of the jury room sending a strong message to the jury to get back to deliberating.

In reversing the court said that the more times a court responds by instructing the jury to continue deliberating, the greater the risk of coercion. The danger here was especially great because the jurors faced the cumulative effect of an Allen charge, three additional instructions from the judge to continue deliberating after the judge knew that there was only one holdout left, and the removal of all reading material from the jury room, a direct response to the holdout juror who was using the reading material to hold out.

The court underscored the problem that exists when a court has knowledge of the specifics of a jury split. The jury is aware that the court knows it is divided in favor of convicting the defendant and the court repeatedly instructs the jury to continue deliberating. The jurors in the minority may feel pressured to join the majority in order to placate the judge. The pressure only increased when the judge learned the number went from 9 to 3 and then to 11 to 1. The court found the totality of the circumstances were coercive which undermined the fundamental fairness of the trial and the reliability of the verdict. The court found ineffective assistance of counsel because the criminal trial attorney did not move for a mistrial.  When the breakdown went to 11-1, after so many indications the jury could not reach a verdict, the failure to move for a mistrial was ineffective of assistance of counsel.