Enough with the Allen Charges — Readable and Entertaining 11th Cir. Opinion

I enjoy reading opinions by Eleventh Circuit Judge, Ed Carnes. And Brewster v. Hetzel may be my new favorite. It’s a rare habeas case out of Alabama (or anywhere) where the habeas petitioner wins. And the subject matter is a deadlocked jury and the lengths a trial court went to flip the holdouts for acquittal. Judge Carnes begins with a history lesson. At one time juries could be deprived of food and water until the holdouts caved. And when that didn’t work, judge had other tricks up their sleeves.

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 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

The opinion gives a few other examples of judicial coercion of hung juries of the past before shifting to the facts at hand. “We no longer try to coerce holdout jurors to reach a verdict they cannot abide. Or at least most times we don’t. The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with the juries of yesteryear.” After giving the jury four separate Allen charges, the jury heard that the lone holdout for acquittal was doing a crossword puzzle rather than continue being browbeat by the other eleven. At which point, the judge ordered all pens and reading materials removed. from the room. “Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully — and we do mean dutifully — returned a guilty verdict.” (Court’s emphasis).

The opinion is informative, readable, and fun. Judge Carnes stands out as one of the best legal writers around. And the opinion in Brewster v. Hetzel is a good model for legal writers to emulate.

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