The Court of Appeals in Coley v. U.S., decided on November 15, 2018, reversed several felony convictions due to faulty jury instructions by the trial judge.

Initially during the jury polling, one of jurors expressed disagreement with the verdict, which was announced to be unanimous.

The trial judge appropriately at that time instructed the jury as such and according to the Jury Instruction 2.603:

“[I]n the poll of the jury, it’s become apparent that you may not have reached a unanimous verdict. Now, for this reason I’m going to ask you to return to the jury room for further consideration of your verdict. If you are unanimous your foreperson should send me a note indicating that, and I will poll you again. If you are not unanimous please resume deliberations and see if you can reach [a] unanimous verdict.”

About an hour after this instruction, the juror who had initially expressed disagreement with the verdict forwarded a note to the Judge expressing a more stern disagreement with the verdict stating “I don’t feel he did it.”

The trial judge forwarded the note to another Judge so that he is not influence by the note and did not share the content of the notes with the parties so that defense was in the dark as to what the juror had expressed however went ahead with another instruction as follows:

“We received a note from you all before I sent you to lunch. I haven’t seen that note, I don’t know what it said, or who wrote the note, and that’s for the following reason. Madam Clerk knows that if a note is given by the jury that in some way might demonstrate a split amongst members of the jury; 6/6, 7/5 or 11/1 or anything like that, or whether people are going towards acquittal or conviction, Madam Clerk knows that I’m not supposed to see that, and so her procedure is – or our procedure is that she’s to take that to a different trial judge than myself. That’s what happened. I don’t know what the note said or who wrote it, so that’s why I’m not responding to whatever it was that you all said. That having been said, if I could ask you all to please resume your deliberations. I just didn’t want you to think that I was ignoring you. Thanks so much.”

An hour late, the jury reached a unanimous decision to convict.

On appeal the defense argued that the poll breakdown and the juror’s note demonstrated a substantial likelihood of a coerced verdict and thus the trial court was obligated to take appropriate remedial action to dispel that likelihood.

Specifically, after the jury note, the court should have provided a Crowder instruction that the jury (1) deliberations should aim toward agreement, but not at the expense of individual judgment, (2) each juror must decide the case for himself or herself, but only after impartial consideration of the views of others, and (3) a juror should not surrender his or her honest conviction merely to return a verdict.

The appellant also argued that the procedure which the trial Judge has put in place led not only to denying the appellant’s request for the appropriate relief of a Crowder instruction, but also to instruct the jury in a fashion that exacerbated the coercive pressures on Juror 668 instead of reducing them.

The Court of Appeal agreed, in that the trial judge “must” endeavor to reduce the “atmosphere of coercion” by giving an instruction along the lines suggested in Crowder.

Also that it was an error to insulate defense counsel as well from the jury note, as defense was unable to appropriately and effectively argue on behalf of the defendant.

Also the Judge himself was not privy to the note and thus was not able to effectively assess the coercive pressure on the juror who was in disagreement with the rest of the jurors.

In short, the very procedure and plan to reduce jury coercion implemented by the trial Judge had in fact increased the likelihood that the verdict was tainted due to jury coercion.

The Court of Appeals reversed to grant a new trial.

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