Case o' The Week: North, Ill, Southwell - Affirmative Defenses and Unanimity
A firefighter so addicted to the rush of his job that he becomes an arsonist. Sound like the plot of Backdraft (left)? It is. It is also not too far from the facts of the Ninth’s latest decision on affirmative defenses, United States v. Southwell, __ F.3d. __, Slip Op. 04-30521 (9th Cir. Dec. 30, 2005), available here.
Players: Memorable win by AFPD Kimberly Deater, E.D. Washington.
Facts: Southwell was accused of starting a fire at a seed company in Washington. Slip Op. at 16910. At trial, he mounted an insanity defense. Id. The jury received an (unclear) instruction on insanity, and then sent a note during deliberations. Id. at 16910-11. That note asked if they could convict if they were unanimous on guilt, but split on insanity. Id. at 16912. Over defense counsel’s protests, the district court refused to clarify. Id. at 16913.
Issue(s): “[W]hether the district court’s failure to answer the jury’s question during deliberations was an abuse of discretion and, if so, whether the defendant was prejudiced thereby. To answer the latter question, we also decide whether a jury must unanimously reject an affirmative defense before it can find a defendant guilty.” Id. at 16910.
Held: “Failure to provide the jury with a clarifying instruction when it has identified a legitimate ambiguity in the original instructions is an abuse of discretion.” Id. at 16914. “If a juror finds that the government has proven each element of the offense beyond a reasonable doubt, and also finds that the defendant has not proven insanity by clear and convincing evidence, he must find the defendant guilty. If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity. Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.” Id. at 16917 (footnote omitted).
Of Note: In Southwell, the Ninth announces a new federal rule on affirmative defenses: a jury must unanimously reject a defendant’s affirmative defense in order to convict. The rule, of course, is important in insanity cases. It applies with equal force, however, for other affirmative defenses – such as duress, coercion, or compulsion (legal excuse). See Ninth Cir. Model Crim. Jury Inst. 6.6. Affirmative defenses are more common in state practice – for example, the defense that an accused did not have qualifying priors for a “strike.” United States v. Kaluna, 192 F.3d 1188 (9th Cir. 1999). Query whether Southwell – a federal circuit decision – controls in state practice? It might: the decision is based on a constitutional analysis, the right to a unanimous verdict.
How to Use: Beyond its obvious value for affirmative defense cases, Southwell is important for its strong language on jury unanimity. Id. at 16914-95. It is likely that the defense only prevailed in this case because the issue was framed as a constitutional question; the constitutional right to a unanimous verdict. Id. at 16915. This forced the government to try to prove that the error was “harmless beyond a reasonable doubt,” a task it failed to meet. Id. Thankfully, maybe, the district court refused the defense request to poll the jury. Id. at 16918. Thus the Ninth could not determine the ultimate vote on insanity and the error was not “harmless.” Id. Use Southwell’s reasoning in arguments against ambiguous instructions, and in support of specific unanimity instructions. See Ninth. Cir. Model Crim. Jury Inst. 7.9 (“Echeverry” instruction).
For Further Reading: Ever see the good Ron Howard flick, Backdraft? In it, a firefighter starts fires in order to fight them. The movie resonates in Southwell, for the defendant here was a volunteer firefighter who allegedly started a fire in a big seed plant – then lead the team to put out the fire. See article here. The sad facts of the case are omitted from the opinion: Ken Southwell apparently had a multiple personality disorder and a sleeping disorder, and admitted to starting five fires in the area with flares taken from the fire station. See article here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org