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Judge’s instruction to holdout juror is criticized

A judge’s instruction to a holdout juror that he listen to his fellow jurors and consider the evidence very carefully denied the defendant a fair trial, a Maryland appeals court has said in overturning an armed robbery conviction and 40-year prison sentence.

Charles County Circuit Court Judge Helen Ina Harrington’s instruction was coercive because it likely left the juror — identified as No. 281 — with the impression that he alone among the jury had the duty to listen and review the evidence presented in the case, the Court of Special Appeals held in ordering a new trial.

The jury subsequently convicted Donald Edward Browne Jr. for the Aug. 18, 2009, attack in Newburg.

In its 3-0 decision, the appellate court said a mistrial should have been declared based on the judge’s invalid instruction.

“[T]he individual instruction that was given to Juror No. 281 directed him to listen to his fellow jurors, but did not provide any counterbalancing language informing him that he should not surrender his honest conviction because of his fellow jurors’ opinions,” Judge Deborah S. Eyler wrote for the Court of Special Appeals. “The giving of an individual instruction to the self-identified holdout juror and the nature of the instruction given increased the likelihood of a coerced verdict.”

The juror initially asked for Harrington’s permission to speak to her at the bench. Harrington said yes, but the one-on-one conversation that followed drew criticism from the appeals court. Criminal procedure professor Abe Dash agreed that Harrington’s meeting with the juror was a significant error.

Harrington, having been told of the lone holdout, should have instructed the jurors as a group of their continuing obligation to weigh the evidence and consider each other’s views in reaching a verdict, said Dash, a professor emeritus at the University of Maryland Francis King Carey School of Law.

“To call somebody up to the bench, that’s almost like admonishment,” he added. “You can’t call up an individual juror. That’s coercive” even if unintended by the judge.

After the jury said it was deadlocked at 6:50 p.m. on May 24, 2012, Juror No. 281 indicated to Harrington that he was the sole vote to acquit Browne of his alleged participation in a two-man armed robbery of Robert and Linda Miller at their home more than three years earlier.

The juror, after getting Harrington’s permission to speak to her at the bench, said he “cannot, with the evidence that’s been presented here, say that Mr. Browne was – “

At that point, Harrington cut him off and said, “You need to go back, listen to your fellow jurors, consider all the evidence very, very carefully,” according to the Court of Special Appeals opinion, which did not mention the judge by name.

Harrington told the juror, “I’m simply asking you to review all of the evidence. Look through the written jury instructions yourself. Consider everything. Consult and discuss with your fellow jurors and we’ll see where we are.”

Just over an hour later, the jury foreman sent a note to Harrington stating that the juror “has examined the evidence and read the instructions and has not changed his position, as such the jury remained deadlock[ed] and a decision cannot be made.”

Defense counsel moved for a mistrial, but the prosecution said the jury should be sent home for the night and return refreshed the following morning.

The judge agreed with the prosecution.

After deliberating for an hour the next day, the jury found Browne guilty of robbery with a dangerous weapon, using a handgun in the commission of a felony or crime of violence, first-degree burglary, false imprisonment, conspiracy to commit robbery with a dangerous weapon and possession of a firearm after conviction of a qualifying crime.

Browne appealed, arguing through counsel that Harrington’s instruction to Juror 281 was improper because it was coercive, albeit unintentionally.

The Court of Special Appeals agreed in its reported opinion Wednesday.

“The juror should not have been instructed individually,” Eyler wrote. “A jury deadlock only can be properly broken by the joint assent of all the jurors. It is a group dynamic problem. Individually instructing a single holdout juror in a deadlock situation can shift that dynamic, creating the impression that the deadlock is of the holdout’s making.”

The foreman’s note focusing on the holdout’s examination of the evidence “strongly suggests a basic misconception about the deliberative process on the part of the 11 other jurors: that it no longer was their job to deliberate as a group in an effort to resolve their differences and reach a unanimous verdict, which could entail changing their own minds,” Eyler added. “The note strongly suggests that the holdout juror would have held the same misconception, i.e., that the deliberations no longer were a group effort, but were a matter of whether he would change his mind.”

The Office of the Maryland Attorney General, which opposed Browne’s appeal, stated in an email that it “is still reviewing the decision and can’t comment further at this time.”

WHAT THE COURT HELD

Case:

Donald Edward Browne Jr. v. State of Maryland, CSA No. 1853, Sept. Term 2012. Reported. Opinion by Eyler, D., J. Argued Sept. 6, 2013 (on brief). Filed Nov. 6, 2013.

Issue:

Did the judge err in telling the sole holdout juror to listen to his fellow jurors and consider the evidence very carefully?

Holding:

Yes; the judge’s instruction put the onus on the juror, “increased the likelihood of a coerced verdict” and a mistrial should have been declared.

Counsel:

Amy Brennan for appellant; Robert Taylor Jr. for appellee.

RecordFax # 13-1106-00 (36 pages).