Gregorio Jimenez v. E.R. Myers, Warden Attorney General of California

African-Americans, no and was women and Angeles

encouraged apply to the Los Po- 775 F.2d at 1009. Department lice instead. to “conclude that found that sufficient of material fact genuine there issue failing motive in regarding [Monrovia’s] omitted). (footnote Here, hire Lowe.” Id. Reyeses replace supervisors told Filipino with white cashiers and to cashiers Arabs,” were informed

“fire the Filipinos supervisor that did not like do- , Maj. op. at 1470. ing bookkeeping. Giv- Reyeses Filipino, that en Sischo-Nownejad and Lowe sufficient under discriminato- an inference of ARCO’s raise and, therefore, summary ry to defeat motive judgment. Reyeses presented evidence went

directly motive. A to ARCO’s reasonable inference could be drawn that ARCO acted presented pur-

out of racial bias. ARCO its ported reason for its action. decision as properly jury. for a

to whom to believe was view, principle my motive is a —that question compels the conclusion that factual — Reyeses should have been afforded the present jury. to a opportunity to their claims Accordingly, I dissent.

Gregorio JIMENEZ, Petitioner-Appellant, MYERS, Warden; Attorney E.R. General California, Respondents-Appellees.

No. 91-56476. Appeals, United States Court of Ninth Circuit. Argued March 1993. Submitted Decided Dec. BROWNING, HUG,

Before: KOZINSKI, Judges. Circuit PER CURIAM: Gregorio appeals Jimenez the district petition court’s denial of his for a writ of corpus habeas based on the claim that the state trial coerced the into render- ing verdict of Jimenez’s violation right process. Amendment to due Fourteenth

I. through fired two shots the front

Jimenez door of his cousin’s house after she ran inside following argument. an He was convicted of attempted murder. At he claimed he frighten only intended his cousin and had not fired until he believed she had moved away gain In from the door. an effort to an acquittal, and his counsel made a Jimenez any ... “tactical decision not to lesser seek n included offenses or submit instructions thereon for the consideration.” ad- describing attempt- dition to the elements of giving standard ed murder other charges, the court instructed the dis- each should decide case after cussion, succumbing pres- but without majority.1 sure of the quarter four and three hours of de- After liberations, sent the a note stating, “We are unable to reach strongly that would not be able and feel we to reach a verdict.” counsel took Defense Cohen, Defenders, Appellate Howard C. this with position “[i]n a case like Inc., CA, Diego, petitioner-appellant. for San feelings, they’re if type emotions Gen., now, rarely Ruffra, they’re going to Peggy Deputy Atty. Los deadlocked S. CA, respondents-appellees. change.” The court called Angeles, stated, change opinion You should not hesitate 1. The court However, you convinced it is erroneous. people Both the and the defendant are enti- you opinion juror. to decide of each should not influenced tled to the individual you particular way majori- each of to consider the question It is the because a in a arriving purpose them, at a ver- evidence for the ty jurors, such a or favor you you can do Each of must decide dict if so. decision. only yourself, the case for but should do so of the evidence and instruc- after discussion tions, jurors. with other following exchange you’re many engaged in the with the which direction at. How foreperson: you Friday? votes have taken since last FOREPERSON: Two or three. Two. know,

THE would like to COURT: What many taken? how votes have been COURT: Two more? FOREPERSON: Un-huh. Five or six.

FOREPERSON: COURT: What’s the latest? telling THE COURT: Without me which direction, start, numerically, just how did it FOREPERSON: Eleven-one.

and what was it on the last? been, then, So there has COURT: sub- stantial movement the last since time. Try you [I will] FOREPERSON: tell numerically [indicating] FOREPERSON: Yes. without either recollection, my way. To of the best right. THE All COURT: Due to the fact five, maybe seven to started out about movement, type we have had that I eight All to four. Went to nine to three. then, request, would to finish the rest of nine, two, right. up, morning, To back today and point see where we are at that though, and one.... This afternoon nine right? Okay. in time. All to three. objected Defense counsel and asked the

[*] ^{[*] [*] [*] [*] [*]} court to inquire whether further deliberation explained, would be fruitful. Counsel “if right. you All THE COURT: So did person there’s one in there' that’s for not between, have —how about nine-two and guilty, putting it’s them on a tremendous nine-three, one and then has there been pressure, amount and I don’t think any movement one or the other? subjected pressure.” should be to that Nine-one-two, I would FOREPERSON: juror court concluded the hold-out would not say point. yes, at this And there has been subjected pressure” light be to “undue some movement one direction. change the substantial in the vote within the Well, Okay. THE COURT: that’s what’s jury in the course of their deliberations and important to of the nature me because because had been asked to deliber- type I of case. want to find out that today” ate “the rest of two more —about there has movement. been guilty hours. The returned a verdict weekend, forty-eight after an hour three-day After a minutes of ad- re- ditional deliberation. turned to its deliberations. Three hours la- ter, sent another note to the court Jimenez raised the issue of coercion stating, impasse request ‘We are without appeal success on to the California prosecutor respond- further direction.” The Appeal in petition for review ed, “If impasse they’re means once the California Court. Jimenez again hopelessly hung, perhaps now would be petition then filed this for a writ of habeas accept the time to that and set it for retrial.” corpus. agreed, “Any pres- Defense counsel further magistrate judge recommended the upon jury] prejudicial sure would be [the granted ground writ be on the the state trial the defendant.” The court declared it would judge juror had coerced the hold-out into bring back to the courtroom to joining guilty magistrate verdict. The “see there’s substantial been move- judge noted that the state trial twice been, ment at all. If there has not I’ll then polled jury’s about the numerical have declare a mistrial.” division on the merits after the had questions The court’s and the impasse; prosecution announced an that the foreperson’s responses were as follows: agreed accept defense a deadlock Okay. Friday note,

THE COURT: Now last after the second but the court refused; inquired you as to whether or not there and that comments to jury. had been strongly implied movement So the move- you I’ll question again ask that same with ment from an initial division seven to five numbers, understanding, all I want is to a division of eleven to one should continue 3) deliberations; the total time of unanimity. 'The district court disa- toward alia, stating, the hold-out greed, inter 4) any pressure. or indicia of coereiveness have felt coerced because would not Wauneka, United States v. F.2d known the would or she have would (9th Cir.1988). consider We the same day. at the end of the declare a mistrial whether, factors in to determine this case circumstances, under the totality II. jury. recognize, trial coerced however, must more that coercion severe coerced Whether.the to constitute violation of due than rendering is a into powers. supervisory to invoke our Don question “requiring and fact mixed of law 637, 642-43, nelly DeChristoforo, v. 416 U.S. principles to application legal the historical (1974). L.Ed.2d 40 431 1469, Vasquez, 882 facts.” Hamilton v. F.2d (9th Cir.1989). Accordingly, 1471 our review 1) Exchange The Form Be weight” given to the facts is de “legal of the Judge Jury jury in tween and twice —The Mata, 591, 455 v. U.S. novo. See Sumner judge it had formed the trial reached an 1303, 1306-07 10, 10, n. & n. 597 & impasse. The trial twice asked the (1982); Hamilton, F.2d 71 L.Ed.2d 480 882 merits, jury split for their numerical on the Estelle, 234, 1471; Torrey 842 F.2d 235 at jury and both sent the back for further times Cir.1988). (9th consider- whether ground deliberations on the stated there had totality court’s were coercive under a actions unanimity. beén movement toward The of the test. See United States circumstances approval of the court indicated its movement (9th Cir.1977) Seawell, 1159, 1163 550 F.2d expressed hope and it would continue. (“the general supplemental whether a test of placed pressure The form of exchange jury in is to all instruction is error consider jurors, finally first on the three hold-out the circumstances to determine the instruc single juror, join on the oth hold-out coercive”); Cupp, was Marsh v. F.2d tion 536 unanimity. ers in the movement toward Cir.1976) (test 1287, (9th for coer 1290 “ charge Because an Allen carries the in its context under all cion “whether coercion, require potential we a trial this case the the circumstances of statement jurors judge using charge coercive’”).2 not instruct was to surrender their sincere convictions when Although specifical this case does not positions. United reassess their States ly charge, Allen see involve review an (9th v. Bonam, 1449, 1451 Cir.1985); 772 F.2d States, 492, 17 Allen v. 164 U.S. S.Ct. Mason, 1263, F.2d 658 1268 United States 154, (1896), clearly 41 528 our Allen L.Ed. (9th (“the Cir.1981) integrity of individual consider, charge They are relevant. cases conscience in deliberation the. determining four there factors Although the compromised”). must not be has been undue coercion: pressure, placed on the this ease 1) supplemental of the instruc- form views, jurors hold-out to reconsider tion; did not them no “should be remind 2) in a following any question partic period of deliberations influenced to decide

instruction; majority of the ... ular because a apply E.g., under all the circum the same in its context and 2. Other circuits test. Parke, (6th judge's stances the statement had 741 F.2d 850 Cir. Williams v. 1984) circumstances); Id. at 85 S.Ct. at (totality effect attributed to it.” Cornell Iowa, (8th Cir.1980) (same); Phelps, 484 1060. See U.S. 628 F.2d Lowenfield (1988) ("Our Reed, peti review of 108 S.Ct. 546 Ellis 1197-1200 (same). Cir.1979) improperly totality that the The of the circum tioner's contention supple origin requires we coerced consider stances had its Jenkins v. Unit standard States, given by charge the trial court 'in its mental ed circumstances.’") reversing context and under all L.Ed.2d a conviction Seawell, Jenkins); (quoting 550 F.2d at told the it was obtained after the Marsh, verdict, Jenkins); (citing required stated, 536 F.2d at 1290 & 6 n. to reach a . ) record, (sam e "Upon review of the we conclude pressure juror. “It is [in favor such decision.”3 essential on the hold-out cases where the trial actions and court made clear it place pressure jurors] on hold-out unanimity comments movement toward and indicated duty obligation type continue, to remind of their “that of movement” should conscientiously not to surrender suggest any way held beliefs did not simply party.” to secure a verdict for either the court would declare a mistrial if no ver- Mason, 658 F.2d at 1268. dict day. was returned the end of the impasse, After prosecu- the second both the 2) Period Deliberation After tor and the defense believed a new trial was Exchange jury reached its verdict one —The required. forty-eight hour returning minutes after following to deliberations the second note.4 analogous case is to Jones v. This period This does raise inference of Norvell, (6th Cir.1973). Bonam, Compare coercion. F.2d 1451 court vacated state conviction after the trial (no inference coercion for verdict delivered learned the was deadlocked elev an hour and a half after Allen where one, en to informed was their simple issue told take could verdict, to reach a try and told the needed), as much time as it with United progress make in their deliberations. The Contreras, (9th 773, v. States 463 F.2d 774 jury guilty returned a verdict almost immedi Cir.1972) (reversing a conviction rendered ately. said, The Sixth Circuit thirty-five charge minutes after Allen be the facts recited above involved the inva- premature the was cause instruction and co jury secrecy, sion of the identification of a ercive). jury’s count, majority-minority deadlocked jury a 3) charge, speedy and the Total Time Deliberations —The of return of a subsequent jury deliberated a total of nine and a half charge. These totality facts constitute a hours. This disproportionate was not “so to circumstances which violate the constitu- the task before the as to raise an infer rights appellants tional to a fair and Beattie, ence” of coercion. United States v. impartial jury trial under the (9th Cir.1980). Sixth and 762, 613 F.2d 766 Fourteenth Amendments. 4) Indicia Coerciveness or Pres (citations omitted). Id. at 1186 Although in sure —The trial knew the was present case the was not told it had divided nine to three when he told them to verdict, a judge’s reach a com- continue their deliberations after their initial ments, repeated, clearly conveyed twice impasse; he knew were divided eleven message the hold-out impasse. one after the second The trial join promptly majority. judge, said, already as we have failed to admonish them not to surrender their If subject sincere this were a federal case to our convictions. The fact that supervisory powers, court asked first only to continue to deliberate for the into the numerical division of the day enough balance of the required not to remove would have reversal. v. Brasfield argument, suggest 3. At the State provide supple- oral seemed to mitted California trial courts to repeat cautionary the trial court not could reminding jurors mental instructions not to sur- Supreme admonition because the California simply majori- render their convictions because a prohibited portion Court has use of the coercive case, ty jurors a has taken different view of the charge. the Allen The California court has Sheldon, 935, People Cal.Rptr. v. 48 Cal.3d 258 prohibited any supplemental charge use of 242, 254-56, 1330, (1989); 771 P.2d 1343-44 (1) minority directs or hold-out to recon- Keenan, 478, People Cal.Rptr. v. 46 Cal.3d 250 (2) light majority, sider their views in of the 550, 582-88, 1081, (1988). 758 P.2d 1113-18 informs the that the case will be retried and (3) eventually, decided or informs expense judicial 4. Jimenez filed People and inconvenience of a motion that we take v. retrial. Barraza, 675, 459, Cal.Rptr. 23 Cal.3d 153 They part 591 notice of the trial minutes. 947, (1979); Gainer, People P.2d 949 19 Cal.3d state court record and available for review with- 835, 861, 16, Cal.Rptr. 139 & 867-70 n. 566 P.2d out a motion. 997, (1977), per- 1003-06 & n. 16 but also has

1479 and; criticism, 448, 135, however, States, many 71 much courts 272 U.S. (1926). it, per rejected se have either modified or the Cali L.Ed. 345 Since Brasfield’s Supreme among.them.1 People it does supervisory power, rests on the fornia Court rule Gainer, 835, 861, Lowen apply in habeas review. Cal.Rptr. federal 19 Cal.3d 139 3, 231, Phelps, n. (1977), 239-40 & P.2d 997 held that 566 the Allen field 568 & n. 98 L.Ed.2d 551-52 inherently coercive and thus re Sumner, (1988); 406 Locks place, versible error.. its California Cir.1983). totality of Upon review of the a neutral however, case, in of this the circumstances division im into the numerical as “an cluding repeated that the court facts ascertaining probability portant tool inquiry into the numerical division of Rodriguez, agreement.” People v. 42 Cal.3d unanimity jmy, told the it should seek Cal-Rptr. n. 726 P.2d hold-out, only single there when repeatedly It has refused individual not to failed admonish See, practice. e.g., People reconsider simply individual surrender views Price, Cal.Rptr.2d 1 Cal.4th verdict, trial we conclude the state achieve Proctor, (1991); People 821 P.2d rights due violated Jimenez’s 7, 15 Cal.Rptr.2d 340, 539 n. Cal.4th . coercing by impermissibly to render (1992) P.2d 1100 verdict.5 deadlock, possible with a Confronted Reversed. precisely did the state here what supreme his state court- told him to: He KOZINSKI, Judge, dissenting. Circuit foreperson about the asked divi- Upon learning been sion. there’d movement subject pecu- judges, As federal we’re to a direction, one exercised discretion way myopia: liar tend to see the federal We him jury entrusted to and sent the back for doing things way, of as the best often as Later, jury further deliberations. when the process. pref- due This be-all end-all of deadlocked, again declared itself for familiar is understandable erence again supreme followed his instruc- court’s dangers it enough, special but it carries with foreperson for and asked a division. tions consti- when we review state convictions for Learning jury had moved clos- even many ways giv- tutional error. There are of agreement, again to exer- er ing sap a a fair trial. our defendant judgment his and sent them back to cised system vitality creativity when federal right: He out to be The deliberate. turned procedures strike because we down state ‘ day. a later jury returned they differ our own. from obtained, By overturning the conviction so everyone point. This is a case Not colleagues casting serious on a my doubt a agrees on how to deal with that indi- Supreme procedure the California Court The cates it’s deadlocked. shouldn’t supreme have number of other state courts a keep deliberating unanimity beyond if is apparent dealing for reach, with ought discharged it to be but My colleagues prac- hold that the reaching deadlock. possibility there’s reasonable asking for inher- tension, division is so tice agreement. most To resolve ently it a trial courts, courts, coercive renders fundamental- as federal as well some state ly when with even the trivial give charge fairly in- unfair combined an Allen —a try made This jurors go to trial here. struction that tells back and comments subject ruling ill countless convictions again. charge has to bodes Allen been are far unani rule Even the federal courts from 5. We announce no “new as a concomitant While mous on how deal with deadlock. process," simply suggests, due as the dissent form, original in its see we allow Allen apply "totality the circum- well-established Seawell, F.2d Cir. States v. Lane, Teague stances" test. 489 U.S. 1978), altogeth has it the Third Circuit forbidden (1989) L.Ed.2d 334 does not Graham, er, (3d see United States v. apply. 1985). Cir. likely acquittal California and other states that follow the to lead to an as to a p. conviction, practice. depending California See on the direction the infra. leaning. judicial pressure When My colleagues give persuasive no reason applied regard without to whether the heavy-handed for such interference with the acquittal, favors conviction or an it’s hard power supreme of state courts to resolve say this denies the a fair defendant trial. practice. Today’s difficult issues of trial rul- ing step away Finally, might moves us one farther from a it argued that if a defen- truly system federal where the state courts dant is entitled to a unanimous as a law, shaping serve as laboratories for process flexible matter of state it violates due evolving process. standards of jurors. due It let the coerce the holdout But step us one moves closer to a world where it all turns on how state law defines unanimi- doing things only ty. our becomes the unanimity Some states view in the same way, pristine courts; where state courts dare not deviate fashion as the federal others procedures from our may temper lest risk wholesale concept, allowing push- some ing invalidation their convictions. tugging get surely there. It process doesn’t violate due for state law to things majority A. First first. The over- unanimity flexibly défine more than federal turns the conviction here because finds the law. unduly trial actions coercive. We pause has, nevertheless, ask the coercion of a sug few holdout in a gested state criminal trial coercion in a state trial can process. can Jury ever violate due process. coercion violate due Lowenfield violates due in a Phelps, 546, 552, federal criminal trial 484 U.S. 108 S.Ct. because the defendant there is constitutional- specific L.Ed.2d 568 Absent more ly entitled to a jury. guidance unanimous probably Johnson v. it’s safest to assume it Louisiana, 406 U.S. deciding does. But in how bad coercion (1972) (Powell, J., 32 L.Ed.2d 152 con- leeway is—and how much to allow states in curring). Coercion of impairs dealing holdout apparently hung juries with —we the federal defendant’s keep Sixth Amendment must teachings mind the of cases like right Johnson, fair Florida, to a because casts doubt on Williams v.

whether the (1970) (12- was unanimous. But the 26 L.Ed.2d 446 defendant a state criminal person jury trial has no is not a require constitutional right ment), jury; constitutional to a unanimous Cupp Naughten, v. 414 U.S. 141 11-1, (1973) or even 9-3 (jury 10-2 verdict is con- universally instruction con process. 363, sistent with due at Id. 92 demned federal courts is not unconstitu (majority tional), opinion). 1625 If a guarantee state can which good states a deal of dispense one, two, with the concurrence of in conducting jury latitude trials. perhaps jurors even more-r-holdout three — B. Even if we assume coercion vio altogether, why try can’t it to secure the process, lates due we must next ask whether agreement jurors of those through same happened what here was coercive. Ever procedure

moral suasion?2 The latter seems ipse since the Court’s dixit Bras an a case of the former. fortiori States, v. (1926), 272 U.S. 448 field Nor inherently prejudicial coercion the federal courts have taken as an article to the defense. perception may judicial Our inquiry this of faith that a into the every be distorted because time we see division is coercive. But didn’t ex Brasfield coercion, convicted; easy plain why has it’s practice it found this coercive nor always conclude that coercion immediately harms defen- is the apparent. reason After pressuring all, dants. But just holdout asking how it’s divided carries might accused,” guilt The matter be different if the has may or innocence of the conviction; leaning made it-clear it's towards a right by interfere with the defendant's to a trial jurors might interpret nudge then una- towards States, jury. 394, Billed v. United nimity as a hint that the believes the defen- (D.C.Cir.1950). 403 guilty. judge "urge[s] dant is If the his own view

1481 states have addressed An additional eleven message; it exhorts explicit with it no position. issue but do not have clear-cut suppose nothing at all. jurors to do Carolina, Among them are states like North denoting as be understood inquiry could inquiries are not in “[s]ueh which find that perhaps some judicial impatience, some Bussey, v. 321 herently coercive....” State minority jurors in the suggestion that veiled (1987). 564, 92, 361 567 States N.C. S.E.2d determi- peers. give in to their Bmsfield’s inqui disapprove Arizona like Illinois and perceive and will nation that holdout ry People v. but consider harmless. Crad message is less by a hidden swayed such dock, 1039, 1, 6, Ill.App.3d 115 Ill.Dec. 163 guess than a more a psychology, than law Kirk, 1357, 1362(1987); People v. 516 N.E.2d just easily as could conclude fact. One 459, Ill.App.3d 76 31 Ill.Dec. 394 inquiry is not coercive because Roberts, 1212, (1979); v. N.E.2d 1218 State nothing it. will read .into (1982). 513, 858, A Ariz. 642 P.2d 861 131 states take this view. Cali- A number of mention, no substantial number but make to have one of seven states fornia is but on, inquiry ádverse comment judicial inquiry into the that a determined division, and focus instead on into the entirely jury’s division is noncoercive supplemental Allertr-type instructions. See Keaulana, v. 784 State appropriate. See 491, Marsh, 416, P.2d v. 260 Or. 490 State Jones, (Haw.1989); v. 641 State P.2d 328 State, 602, (1971); v. 225 Ark. 501 Hardin Morris, (Wash.1982); v. 476 708 State P.2d State, 111, (1955); Black v. 284 S.W.2d State, (Mo.1971); v. S.W.2d Dunford (1986); 255 Ga. 341 S.E.2d 436 State Sharplin (Okla.Crim.App.1980); P.2d 1115 Anderson, 247 Minn. 78 N.W.2d (Miss.1976); State, State 330 So.2d (1956). adopt states a balanc 326-27 Some (N.M.1981). Rickerson, To P.2d 1183 considering inquiry part as ing approach, states can be added group, two other question of Richard of a broader coercion. approve practice: that also seem (Ala.Crim. State, 289, 293-94 son v. 508 So.2d (Tex.Ct. State, 445, 448 682 S.W.2d Odom Austin, App.1987); People v. 185 Colo. (defendant “has not cited a Texas App.1984) Cornell, (1974); 523 P.2d 993-94 State one, ease, makes nor have we found which (Iowa 1978); White 266 N.W.2d numerical division the mere as to the State, 95 Nev. 603 P.2d se”); per State v. reversible error (La.1977) 997, 1001 Schamburge, 344 So.2d determining particular state (“The no more than make a did process,-it’s procedure court violates due prospects for a verdict general highly whether that state is alone relevant that ten the twelve and reminded from the norm its While a deviation view. verdict.”). agree upon a had to Constitution, automatically offend the doesn’t my group Another of states —seven the collected wisdom other failure to follow summarily. practice count —condemns the jurisdictions raise doubts can American Commonwealth, No. 85-CA-1923-MR See Gumer procedure is consistent whether about (Ky. 1986); 25, pril Ct.App.A Gra Supreme process.3 The -Court’s with due 398, State, Alabama, 625, Md. 601 A.2d 131 ham v. analysis in Beck v. 447 U.S. Rose, (1992); (1980), 51 Del. Hyman Reiver & Co. v. illus- 65 L.Ed.2d 392 Wilson, (1958); People v. point. 147 A.2d 500 that the defen- trates this Beck held (1973); entitled, Rod a matter capital Mich. 213 N.W.2d 193 in trial is dant a State, (Fla.Ct.App. process, included offense riguez v. 559 So.2d of due to a lesser State, 1990); reasoned that “the Kersey v. 525 S.W.2d instruction. The Court (Tenn.1975); of the rule George, nearly acceptance 219 Mont. universal State v. a matter of rely [as and federal courts They on both state 711 P.2d 1379 Brasfield statutory law] or common establishes closely analogous rationale. or a coercive, sig- true; surely matters that a necessarily proce- is a division converse isn’t 3. The though might process supreme a courts have due even dure violate nificant number state Yet, it. procedure number of states follow substantial determining it isn’t. held considered inquiry into numerical procedural value to the defendant of this happened Contrast what here: The trial safeguard.” Id. at at asked badly to tell him how agreement split There is no such universal that a were whether there’d been judicial inquiry into a relatively division is coer- movement. His comments were mild, majority’s assumption by way cive. The explanation to the con- more than exhor- trary ruling— at inquiry, lies the heart of its tation. After the first when he —which support. moving without learned the toward unanimi- ty, “Well, said: that’s im- what’s assuming judge’s C. Even portant to me because of the nature into the division and his related com- type of case. I want to find out that there coercive, ments were we must next ask how has been movement.” His comment after My colleagues recognize coercive. that entirely the second neutral: “All “coercion must be more severe to constitute right. Due to the fact type we have had that a violation of due than to invoke our movement, then, request, would to finish supervisory powers,” Maj. op. at today the rest of and see where we are' at they then stand this admonition on its head. point right? Okay.” time. All cautionary part of the Allen —the majority absence of which the sees as the happened What simply par here is not on a great failing designed here —is to offset the dy- with —let alone more coercive than —the Thus, part charge. coercive in order portion namite charge. the Allen to vacate a state give conviction for failure to majority according errs even to the standard cautionary reminder, actions it has set for itself. here had to dyna- be more coercive than the D. Even were adopt majority’s we to part mite charge. the Allen approach today, we would have no business By any standard, happened what here —if applying it retroactively petitioner or to it was all—was much less coercive prisoner other state whose conviction has typical charge, than the Allen where the trial Supreme become final. The Teague Court in eye looks the holdout in the Lane, says: (1989) (plurality L.Ed.2d 334 opinion), held There is no reason think that this case adopt where the federal courts a new could be better tried or that another rule as a concomitant process, of due the rule qualified is better impor decide it. It is except in rare applied only cases —be must — you tant therefore that reach verdict if prospectively.4 The reasons for am- this are you conscientiously. Therefore, can do so ply by demonstrated the case before us: point you may looks at-some as if have What here wasn’t an .did difficulty in reaching a unanimous verdict aberration; practice he followed a the Cali- greater and if you number of agreed fornia Court had re- verdict, on a may the other want to peatedly. Giving today’s ap- rule retroactive ask themselves about the basis for their plication profound will unsettling have feelings when a substantial number have' effect on hundreds of convictions entered reached a different conclúsion. You the courts of California and other states in ... therefore not hesitate to recon cases, many this circuit. there will be no your sider views from time to time retrying hope defendants. Retroactive change you persuaded them if that this application of the new rule significantly thus appropriate. important you It is impairs legitimate these states’ interests attempt to return a verdict.... maintaining through convictions pro- secured Ajiboye, States n. 893 reasonably cedures courts believed con- (9th Cir.1992). process. formed with due exceptions general 4. There are two to this 'implicit rule: that ... concept in the of ordered ” places if the primary, pri- rule "certain kinds of liberty.’ 489 U.S. at 109 S.Ct. at 1073 beyond power vate individual conduct the of the (citations omitted). goes saying It Without that lawmaking authority proscribe;" criminal to or applies neither here. requires procedures if it the observance of "those and majority adopts new to be selected to hear this case the rule the is That the again; complicat- No federal court— hardly long can doubted. it’s and be evidence and anywhere held that a state ed;” no- court finally emphasize “I to that want —has jury’s a divi- judge’s inquiry into numerical your duty the fact that to do it is whatever sufficiently require coercive to an sion is you can to this matter over as reason reason- only cautionary instruction. The Allen-type attempt able men and to women recon- Norvell, cites, majority differences_” ease Jones the your cile Id. at 1196. The (6th Cir.1973), not an F.2d involved eight agreement reached in minutes. but, my alone as col- inquiry as to division standard, By any in Id. the coercion Ellis “it leagues acknowledge, an instruction that anything hap- far more than that severe was reach, jury’s] to a verdict.” [the pened here. Maj. par- on is op. 1478. Reliance Jones at Although judge the state trial did include a light in Cir- ticularly misplaced the Sixth instruction, approach,of cautionary brief the in reading of it cuit’s limited Williams own surely majori- diverges Ellis from that of the (6th Parke, Cir.1984). The 741 F.2d 847 Ellis, analysis ty grounded here. on its the confronted a situation far Williams court Johnson, rulings in Court’s than that here: a state trial egregious more Cupp Williams and that concluded these only inquired into the court that had are matters that be left to the state division, given a Allen truncated courts: that was all coercion and no charge —one 849, 851; at cautionary Id. see reminder. injury opinion are of the the that is J., (Contie, dissenting). also id. nature, essentially procedural in absent that, distinguished ground Jones on the court minority upon ju- overt the coercion Jones, “in the trial determined not event, rors. In knew how it breakdown, majori- only but also the was divided.... feel that under [W]e addition,

ty’s Id. at 851. In inclination.” principles of federalism the decision wrongly “the in ... asserted Jones inquiry is best left to allow people ‘are the the twelve Indeed, supervising state court. we only a in the ones’ who could reach expressed opinion that there have ease, impossibili- to assert the appearing thus inquiry some value a federal case ty Id. at 851-52. of retrial.” deciding when the whether to fairly law can Sixth case more Circuit declare a otherwise excuse the mistrial or majori- conflicting with characterized as jurors for dinner. ty’s supporting inqui- it. If opinion than Nothing Id. at 1200. in the Fourth Circuit’s ry plus portion as to division ruling opinion paves today. our Allen didn’t violate due n TheSeventh Circuit took similarly Williams,, a inquiries nar neutral prerogatives oblique surely comments here did not. row view the federal Director, In Kirk v. area. ex rel. United States uniformly circuits have re- Other federal Corrections, pt. 678 F.2d 723 De jected majority claim the the kind of sustains (7th Cir.1982), peti confronted the court Reed, here. Ellis People who’d tioner been the defendant Cir.1979), dealt with a situation where the Kirk, p. In supra. Kirk. Illi division, had asked about that the Appeals nois Court of held gave “eleven one.” He then told was error but into division harmless. fairly strong charge, version of the Allen The Seventh characterized case Circuit reminding could not involving into division agree again time of the Court will have “the charge, al followed a modified Allen action;” in the trial of this be consumed though opinion nor that of the neither its your duty try your “it is reconcile appellate the exact verdict;” Illinois court discloses that “a differences and to reach Circuit charge.5 nature of the The Seventh that another will have mistrial will mean Prim, Prim, People Ill.2d says judge gave People that the trial instruction. v. Kirk conviction; Cornell, rejected inquiry upheld citing that argument the an as to the Ellis coercive; Cupp, and jury inherently we concluded: division was the Here, judge court on whether the trial in didn’t.focus the circumstances which the in- that, jurors duty give quiry persuade of their not reminded the bo was not us made do Instead, way up honestly any the in coerced: held beliefs. the court was The was for had to about to dismissed the weekend inquiry held that the be considered in be case, judge may and the have been light wondering of all the circumstances of the and agreement, making whether it to was close nothing that had shown the defendant deliberations; it best to continue he made suggest inquiry the was coercive. Kirk sure- and, face, simple inqui- on its uncoercive ly does not the result here foreshadow for ry; jurors he did not ask whether the purposes Teague. of majority acquittal were for or a Eighth Circuit dealt with the issue in verdict; not judge inqui- did follow the (8th State, Cir.1980), F.2d 1044 Cornell v. ry imploring with statement reviewing of the ruling state court in decision; to come to a and the was not (Iowa 1978). Cornell, State v. N.W.2d 15 deliberations, sent back to continue Cornell, p. supra. weekend. dismissed for the We there- asked how the was divided after fore affirm court the district on this issue. deliberation, than of more 15 hours and was actually Id. at 407. If not Locks is conflict point, told 7 to 5. At that the trial court opinion today, surely with our contains no gave lengthy Allen-type charge that can hint, suggestion, Alleiu-type no that cau- dynamite best be described as 95% and 5% tionary required reminder is whenever the relief, Eighth caution.6 The Circuit denied asks the how it’s divided.7 noting inquiry that nor “neither the the Allen long of it is today’s and short combination, charge, nor the two in was coer- decision is out "with step of those of other cive of guilty.” ultimate verdict of anywhere federal courts. first It’s the ease Cornell, Cornell, 628 F.2d at 1048. like El- equates into neutral lis, square ruling today is difficult to with our dynamite portion division with the of an Al- arguably and is in direct conflict. It certain- charge; len it is first federal court to ly presages pur- no our decision for reverse a state under conviction these cir- poses Teague. of Teague cumstances. If does not bar retroac- application circumstances, tive these has Finally, prior ruling in there’s our Locks v. meaning no at all. Sumner, Cir.1983), which division, involved an Supreme repeatedly numerical E. The has Court apparently not followed comment directed the to stick federal courts to their judge. reviewing from the trial Id.- at 405 n. 1. We limited role in state convictions. (1972), closely 289 N.E.2d 601 the Illinois them all to scrutinize the evidence more use of the ABA recom- grounds opinion,” and to reexamine the mended instruction in lieu of the "your standard Allen and to decide issues of fact charge. The ABA contains a milder instruction you, you which have been submitted so,” can dynamite charge, form of the Alien as well as a conscientiously "you lay do aside cautionary reminder. Id. pride opinion all mere and should bear in place espousing mind that the no room is for only portion 6. The instruction which can maintaining spirit controversy.” in a cautionary following phrase: be deemed is the "[W]hile this must be the conclusion of Akbar, 7. Also relevant States v. is United acquiescence each mere not a (9th Cir.1983), Akbar, in Lodes. In cited agreement....” in order to reach Cor jury poll district an unusual nell, conducted 628 F.2d at 1046. This was sandwiched testimony determine which wanted certain variety between a of exhortations such as: "A During procedure, reread. of that the course proper regard judgment others will only split learned greatly forming judgment,” aid us in our own identity juror. but also the holdout to chosen,” "there is no reason think a better instruction, qualified cautionary yet There was no could ever "if the reluctantly members of the evidence, differ in their court affirmed. See also id. at views of the 380-81 J., opinion (Kennedy, concurring). such difference should cause — U.S.-, McGuire, retroactively, See, By applying the decision v. e.g., Estelle damage. I 475, 480, majority compounds dissent. -, L.Ed.2d 385 112 S.Ct. (“[W]e (1991) not the reemphasize that it is court to reexam

province of a federal habeas law on state court determinations ine state Harris, 465 questions.”); Pulley see also 871, 874-75, 37, 41, 104 L.Ed.2d U.S. illustrates, (1984). But, many as this ease separate judges find it difficult to federal courts supervising the federal role of al., MURPHY, policing possible narrower role et from their Patrick J. Plaintiffs-Appellees, habeas cases. violations' state constitutional isolated In two is this an instance. Nor cases, my colleagues ca recent habeas other FEDERAL DEPOSIT INSURANCE procedure sually equated federal rules CORPORATION, al., et requirements. Henry with constitutional Defendants-Appellants. (9th Cir.1993); Estelle, 993 F.2d 1423 Rees, (9th, McKinney Cir. MURPHY, Individual; Mur Patrick J. 1993). Henry particularly egregious ex Markets, Corpo phy’s Inc., a California does, following containing, as it ample, Ramsey ration; Marketing Manage impermissible. passage: “This inference is (“Ramco”); Ramsay Mar ment Co. aka Henry, F.2d at 1427. 404.” Fed.R.Evid. keting Management Co., a Califor emerging I federal pattern fear a where Corporation, Plaintiffs-Appellants, nia rules that allow judges create constitutional procedure state in the feder them to remake image.

al FEDERAL DEPOSIT INSURANCE CORPORATION, al., et noted, Burger “[w]e As Chief Justice once Defendants-Appellees. constitutionalizing cautious about should be in fed every procedural device found useful FEDERAL INSURANCE DEPOSIT courts, thereby foreclosing the States eral CORPORATION; First National ap experimentation with different from Bank, Plaintiffs-Appellees, equally compatible with proaches which are Bretz, principles.” Crist v. constitutional 2156, 2163, 57 L.Ed.2d U.S. MURPHY, Defendant- Patrick J. (1978) C.J., If the (Burger, dissenting). Appellant. continues, concept of due current trend 91-15511, 91-15642. Nos. 91-15640 and disappear altogether, to be re will

placed by the Federal Rules of Criminal Appeals, States Court of Williams, at 136- Procedure. See Ninth Circuit. (Harlan, J., at 1925-26 concur Sept. 1992. result). Argued and Submitted not, respectfully This is ring in suggest, a wonderful idea. Decided Dec.

Conclusion Dealing apparently with an deadlocked easy. jurists certain- jury is not Reasonable way. My ly respond in might more than one today of Cali- colleagues foreclose the State pursuing prefers approach fornia from merely approach doesn’t con- because

form the mold cast the federal courts.

Case Details

Case Name: Gregorio Jimenez v. E.R. Myers, Warden Attorney General of California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 8, 1993

Citation: 12 F.3d 1474

Docket Number: 91-56476

Court Abbreviation: 9th Cir.