Brewster v. Hetzel

• Decision Date: 22 January 2019
• Docket Number: No. 16-16350,16-16350
• Parties: Sumnar Robert BREWSTER, Petitioner-Appellant, v. Gary HETZEL, Attorney General, State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

913 F.3d 1042

Sumnar Robert BREWSTER, Petitioner-Appellant,

v.Gary HETZEL, Attorney General, State of Alabama, Respondents-Appellees.

No. 16-16350

United States Court of Appeals, Eleventh Circuit.

January 22, 2019

Kevin L. Butler, Allison Case, Tobie John Smith, Federal Public Defender, BIRMINGHAM, AL, Sumnar Robert Brewster, Holman CF—Inmate Legal Mail, ATMORE, AL, for Petitioner-Appellant.

John J. Davis, Luther J. Strange, III, Alabama Attorney General's Office, MONTGOMERY, AL, Respondents-Appellees.

Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.

ED CARNES, Chief Judge:

In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one "method of accelerating unanimity" was to prohibit jurors from eating or drinking until they all agreed on a verdict. 3 William Blackstone, Commentaries *375. And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, "the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart." Id. at *376. They were hauled around in the cart "until a judgment ‘bounced out.’ " Renico v. Lett, 559 U.S. 766, 780, 130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

In one seventeenth-century sedition trial (involving William Penn and a co-defendant), the jury deadlocked on the most serious charge. George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge responded by threatening to have a juror named Bushel branded unless the jury agreed that the defendants were guilty as charged. Id. at 899. When no verdict was forthcoming, the judge did not send for a branding iron, but he did have all the jurors "locked in the jury room without meat, drink, fire, and tobacco" until they could agree. Id. (quotation marks omitted). After nicotine withdrawal and the prospect of starvation failed to work, "the judge threatened to cut Bushel's throat" if there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a deadlocked jury.) When even that threat did not bring forth a unanimous verdict, the judge gave up. Id. Bushel escaped the experience unbranded and with his throat intact, while the jury as a whole escaped with its disagreement intact. But the judge was angry enough at the jurors' failure to agree that he fined each of them forty marks for their intransigence. Id. Fortunately, when the case made it to the Court of Common Pleas the fines were set aside. Id. at 899–900. History does not record if Bushel or any of the eleven other brave souls ever served on another jury.

Since those days, we have come a long way and now accept that some jury deliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987) ("The jury trial system has not malfunctioned when the jury cannot reach a verdict. One of the safeguards against the conviction of innocent persons built into our criminal justice system is that a jury may not be able to reach a unanimous verdict."). We no longer try to coerce holdout jurors to reach a verdict that they cannot abide. Or at least most of the time we don't.

The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with juries of yesteryear. Over the period of two days of deliberations the jurors repeatedly told the judges—there was one judge on the first day of deliberations and a different one on the second day—that they could not reach a unanimous verdict. And the judges repeatedly ordered them to keep trying. All told, the jurors sent six notes to the two judges stating that they could not reach a verdict.

Three times the jurors disclosed how they were divided: first reporting that they were deadlocked 9 to 3 for conviction, later that they were still deadlocked but now 11 to 1 in favor of conviction, and still later that the one holdout juror was continuing to hold out. Throughout the deadlocking, the judges gave a formal Allen charge, later two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.

Shortly thereafter, when told that the one juror who wouldn't vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be even more effective than threatening to kill the hapless Bushel had been in William Penn's case three hundred years before. Just 18 minutes after all reading materials were removed, Brewster's jury dutifully—and we do mean dutifully—returned a guilty verdict. Through it all Brewster's two attorneys neither objected nor moved for a mistrial. Not once.

This is Brewster's appeal from the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He claims that his trial counsel rendered ineffective assistance by failing to object, or move for a mistrial, at any point during the deadlocked deliberations.

I.

Here are the details. Brewster was tried on two counts of armed robbery. The case went to the jury at 11:23 a.m. on the second day of trial. About three-and-a-half hours later, at 2:55 p.m., the jury sent a note to the trial judge asking: "If one person on the jury votes not guilty, what is outcome?" The judge responded: "The Court cannot answer this question but will recharge you on any instructions you wish." There is no indication that the jury asked at that time to be recharged on anything or that they were.

Less than two hours later, at 4:20 p.m., the jury sent the judge a second note, which stated: "We are nine guilty and three not guilty. What instructions would you give us as to what to do now? Everyone is firm in their decision." The judge brought the jury into the courtroom and asked the foreman, "[D]o you think there's any way this case will be resolved on a unanimous verdict?" He answered "no." The judge responded by reading the jury Alabama's pattern Allen instruction, colloquially known as a dynamite charge. See Allen v. United States, 164 U.S. 492, 501–02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896) ; Dailey v. State, 828 So.2d 344, 346–47 (Ala. Crim. App. 2002). Among other things, the judge informed the jurors that if they could not agree on a verdict, "a mistrial would be declared and this case would have to be tried again." He told them that each juror was "entitled to his or her opinion of the evidence" and that none of them should "surrender an honest conviction," but he directed them to talk over their differences and to "make further efforts to arrive at a verdict" if they could conscientiously do so. The jurors deliberated for another half-hour before being sent home for the day.

The jury returned at 9:00 the next morning and continued deliberating. For reasons not explained in the record, another judge took over from the one who had presided the day before. At 10:57 a.m., almost two hours after deliberations had resumed that morning, the jurors sent out a third note. That note, as recounted by the judge, stated that they could not reach a unanimous decision, that one juror had decided not guilty, and that "no amount of time was going to sway them." The judge brought the jurors into the courtroom and instructed them to "keep an open mind and go back point by point over the evidence that you have heard in this case and the law that was given to you by the Court and to keep deliberating." The jurors returned to the jury room at 11:00 a.m.

Nearly three hours later, at 1:45 p.m., in a fourth note, the jury once again declared itself deadlocked—really, really deadlocked—telling the judge, as he informed the attorneys, that "all jurors have decided firmly, eleven guilty, one not guilty, no possibility of resolve." (Emphasis added.) The State requested that the judge give the Allen charge again, but instead he gave the jury a written instruction ordering it to continue deliberating and telling the jurors if they needed to be "reinstructed on any elements of the crime, count one or count two, or reinstructed on any issues, i.e., the burden of proof or reasonable doubt," the court would reinstruct them. The jury did not ask for any more instructions.

At 2:02 p.m., the jury sent a fifth note, telling the judge that the lone holdout juror was "unwilling to discuss the case with them." The judge brought the jury back into the courtroom and gave it the longest additional instruction yet, covering seven-and-a-half pages of the transcript. He began by asking the jurors: "Do you remember ... [y]ou all took a solemn oath that you would well and truly try all issues submitted to you and true verdicts render ... according to the evidence in the case and the law as given to you by the Court?" He went on: "You are not at liberty to just ignore the instructions of the Court. I'm not telling you to change your mind, but I am asking you and reminding you of the oaths that you took and to take those seriously and to deliberate this case and talk." In his instruction, the judge used the word "oath" nine times. He also reminded the jury that "beyond a reasonable doubt" does not mean absolute certainty, and that "[t]here is no such thing as absolute certainty in human affairs. For justice is after all, but an approximate science." The judge concluded his lengthy instructions by telling the jury:

I have indicated to you that there's two counts. I have reminded you of the oath that you have taken. I have given you reinstructions on reasonable doubt. I want you to go back, and I want you to continue to deliberate. Start

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