Sunday, July 10, 2011

Case o' The Week: No "Second Bite at Guilt Apple" - Evanston, Allen Charges, and Jury Questions

"Where the evidence has closed, the government has rested its case, and the jury has concluded that it cannot reach a verdict despite its earnest efforts, allowing supplemental arguments effectively allows the government a second bite at the guilty verdict apple. As one scholar has noted, procedures for breaking jury deadlock not only give the government a second chance but also provide the government specific input from the jury about what doubts it needs to overcome.” United States v. Evanston, 2011 WL 2619277, *9 (9th July 5, 2011) (footnote, quotation, and citation omitted), decision available here.

In a great decision on an issue of first impression, Judge Hawkins refuses to let the government get a "second bite at the guilty verdict apple."

Players: Thoughtful new Ninth Circuit rule crafted by Judge Michael Hawkins.

Facts: Calvin Evanston was charged in federal court with an assault on his girlfriend, on a reservation in Arizona. Id. at *1. The trial took two days, then the jury deliberated for another two and advised it couldn’t reach a verdict. Id. The district court issued an Allen “or ‘dynamite charge,’” and asked for additional deliberations. Id. Three hours of additional deliberation didn’t help: the jury was still at a stalemate.

The trial judge then proposed to government and defense counsel a novel approach: questioning the jury, learning the issue upon which they were deadlocked, and permitting supplemental argument. Id. The AUSA (predictably) “welcomed the opportunity"; the defense (wisely) objected. Id. Over defense objection, the district court questioned the jury and allowed further argument anyway: two hours later the jury returned with a unanimous guilty verdict. Id. at *2.

Issue(s): “In a case of first impression, we examine whether a district court may, over defense objection and after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal.” Id. at *1 (footnote omitted). “Evanston appeals [the guilty] verdict, arguing that the district court’s actions in questioning the jurors as to the subject of their deadlock and allowing supplemental argument on those factual issues invaded the jury’s role a the sole fact-finder.” Id. at *2.

Held: “We conclude that allowing such a procedure in a criminal trial is an abuse of discretion accorded district courts in the management of jury deliberations.” Id. at *1.

Of Note: Evanston is a wonderful decision, lengthy and scholarly, with an exhaustive survey of the jury’s exclusive responsibility for fact-finding. It is thus miserly of us to complain about footnote 15 – but that note is worth a note.

In footnote fifteen Judge Hawkins carefully limits the decision’s holding as arising out of the Ninth’s supervisory powers over federal courts – and not (necessarily) out of any constitutional right. Id. at *10 & n.15. That’s an important distinction, because of the prejudice inquiry – this jury question issue is probably harmless error review instead of structural error and automatic reversal. Id. at *9. The origin of the rule is also important to our federal habeas comrades, who are always on the lookout for new § 2254 hooks. Judge Hawkins doesn’t eliminate the possibility that there’s a constitutional bar to this type of error – but the defense will have an uphill fight to constitutionalize this area of law in the future.

How to Use: Mine Evanston for two great veins of law: a welcome distrust of Allen charges, and hostility to the court’s and parties’ intrusion into the jury’s fact-finding domain.

The foundation of Judge Hawkin’s new rule is his emphasis on the dangers of
Allen charges – he stresses with apparent approval that more-enlightened circuits than the Ninth have barred this “dynamite” charge altogether. Id. at *3 & n.7 (O.K., the “more-enlightened” comment is our addition).

Link Evanston also provides good language against that trend of permitting the government to beg for jury pointers on eliminating reasonable doubt, during a trial. For example, one innovative ND Cal judge has added to his standing criminal trial order, “The Court may permit the jury to pose written questions to the witnesses.” See standing order here. In Evanston, however, Judge Hawkins repeatedly warns, “the jury may not enlist the court as its partner in the fact-finding process.” Id. at *3. The spirit (and arguably the holding) of Evanston weigh heavily against permitting factual questions from the jury before and during deliberations in criminal trials.

For Further Reading: Defense folks don’t like jury questions during a criminal trial: an inquisitorial system that unfairly lets the prosecutor patch holes in reasonable doubt, and that quickly bleeds into discussions of inadmissible evidence. For a nice summary of the many, many arguments against this inadvisable approach, with citations, see, Questions by Jurors - Disadvantages, at 3 Crim. Prac. Manual § 94:10, Westlaw cite CRPMAN § 94:10.

Image of the second bite at the guilt apple from

Steven G. Kalar, Senior Litigator N.D. Cal FPD. Website at


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