Dixon trial jurors not quite ready for Allen charge 

Posted: 7:00 pm Sun, November 22, 2009
By Danny Jacobs
Daily Record Legal Affairs Writer

The three paragraphs potentially have the power to break up a deadlocked jury. No wonder the Allen charge is sometimes called “the dynamite charge.”

As jurors in Mayor Shelia A. Dixon’s criminal trial left Baltimore City Circuit Court after their second day of deliberations Friday, Visiting Judge Dennis M. Sweeney advised them to take a mental break over the weekend. But if the discussion in the jury room continues to only yield disagreement, Sweeney can give what legal observers describe as a nudge toward reaching a verdict.

The Allen charge is named after an 1896 U.S. Supreme Court decision that allows for the coercion of jurors through instructions given by a judge. Maryland and some other jurisdictions have disavowed the ruling, preferring language authored by the American Bar Association that does not include coercion. The Maryland Court of Appeals has upheld the use of the modified Allen charge.

The standard language used by Maryland judges includes a reminder for jurors to take an impartial view of the evidence and re-examine their views if needed.

“You are not partisans. You are judges — judges of the facts,” the statement concludes. “Your sole interest is to ascertain the truth from the evidence in the case.”

Observers said they didn’t expect Sweeney to use the Allen charge Monday, but that it eventually could be beneficial to remind the jurors of their responsibility.

“It’s a balanced message,” said Byron L. Warnken, an associate professor at the University of Baltimore School of Law. “It’s designed to remind jurors to deliberate and listen very carefully to input from their colleagues, but also not give up their personal convictions to reach a verdict.”

On Thursday, the Dixon jurors indicated their deliberations were becoming “a little out of order” in a note to Sweeney, and then on Friday, in another note, they said things were “a little overheated.” But tense arguments are not reason enough for an Allen charge to be issued, said retired Judge Dana Mark Levitz.

“Judges don’t like to interfere with deliberations of the jury,” he said. “A judge is reluctant to give it until the jury says, ‘We cannot reach a verdict.’”

Levitz said the impact of the charge on jurors and their deliberations is unpredictable.

“It’s no magic cure,” he said.

If and when Sweeney gives the Allen charge is entirely up to him. Levitz said most judges will wait until the jury indicates it is deadlocked if they use it at all, and Warnken said the Court of Appeals gives judges wide discretion to use it so long as they stick to the standard language.

Lawyers on both sides in the Dixon trial said it was premature to discuss the possibility of a hung jury based on deliberations so far.

“You drive yourself crazy trying to guess,” said Deputy State Prosecutor Thomas M. McDonough.

Said Arnold M. Weiner, Dixon’s lead attorney: “They’re taking their job very seriously.”

But David B. Irwin, a veteran defense lawyer and former prosecutor, said the Allen charge will be a “litmus test” for both sides if Sweeney gives it. (Irwin said he represented two witnesses in the case, whom he declined to identify, one who testified and one who did not.)

“The side that thinks they’re ahead wants that charge,” said Irwin, of Irwin, Green & Dexter LLP in Towson. “The side that’s behind wants deliberation to continue.”

If the trial ends in a hung jury, Irwin added, a poll of the jurors afterward by lawyers could indicate what prosecutors will do next. If it is learned the jury deadlocked at 10-2 vote in favor of acquittal, prosecutors might consider dropping the case; if the jury deadlocked 11-1 in favor of convicting Dixon, prosecutors might re-try the case.

Daily Record legal affairs writer Brendan Kearney contributed to this article.