*1 Before: CLAY and SUTTON, Circuit Judges; OBERDORFER, District Judge. [*] _________________
COUNSEL ARGUED: Michael J. Newman, DINSMORE & SHOHL, Cincinnati, Ohio, for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Michael J. Newman, Jennifer K. Swartz, Daniel J. Greenberg, DINSMORE & SHOHL, Cincinnati, Ohio, for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Earl Ray Lyell, Muskegon Heights, Michigan, pro se.
SUTTON, J., delivered the opinion of the court, in which OBERDORFER, D. J., joined. CLAY, J. (pp. 11-14), delivered a separate concurring opinion.
_________________
OPINION _________________ SUTTON, Circuit Judge. A jury convicted Earl Ray Lyell of assault with intent to commit murder, Mich. Comp. Laws § 750.83, and a judge sentenced him to thirty to sixty years in prison as an habitual offender, Mich. Comp. Laws § 28.1083. He now petitions for a writ of habeas corpus, claiming that the trial court (1) coerced the jury into reaching a guilty verdict by improperly polling the jury and (2) exhibited bias and partiality that denied him a fair trial. Although we reject Lyell’s * The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation.
1
claim that the jury polling violated his constitutional rights, we agree that the trial judge’s conduct violated his due-process right to a fair trial. We reverse and conditionally grant the writ.
I.
The facts giving rise to Lyell’s arrest and trial are straightforward. According to the prosecution, Lyell repeatedly stabbed Anthony Nimeth after learning that Nimeth intended to tell the authorities about Lyell’s involvement in a high-speed car chase with the police. According to Lyell, Nimeth tried to rob him at knife point, leaving Lyell no choice but to stab Nimeth in self defense.
The trial was anything but straightforward. Throughout the proceedings, the trial judge and Lyell’s defense counsel, Hart, clashed verbally, frequently in the presence of the jury. See People v. Lyell , No. 214100, slip op. at 3 (Mich. Ct. App. May 4, 2001). The clashes began in voir dire when the judge interrupted Hart’s questioning of prospective jurors on several occasions (without prior objection from the prosecution) in order to accuse him of being repetitive, see, e.g. , Tr. Day 1 at 61, 109, or argumentative, see, e.g. , id. at 63, 96, 99, and they continued through Hart’s direct and cross-examination of witnesses. At the same time, the judge rarely interrupted the prosecutor; and when she did interrupt him (at least on two occasions), she did so in order to assist him. See Tr. Day 2 at 68; Tr. Day 5 at 28. Our review of the record reveals that over the course of the six-day trial, the judge interrupted Lyell’s counsel—without prompting or objection from the prosecution—roughly 40 times.
On three occasions the court assumed control of witness questioning in a manner suggesting that the judge favored the prosecution’s case. Tr. Day 2 at 68 (urging the prosecutor to ask a question even though the prosecutor believed it called for hearsay), 154 (interrupting Hart’s attempt to impeach the witness with previous statements made to police and sua sponte eliciting details—via 12 separate questions—not revealed on direct); Tr. Day 5 at 28 (urging the witness to answer a question voluntarily withdrawn by the prosecutor). The following exchange is illustrative:
THE COURT: Is there any reason why you don’t ask [the witness] what [another witness, Miss Reiland,] said to her? MR. WENZEL[the prosecutor]: Because technically it is hearsay.
THE COURT: It is admissible.
MR. HART: Judge, with all due respect, I would rather just fight Mr. Wenzel and not --
THE COURT: You know what, you’re not acting like[] a lawyer. We are talking about -- at least it has been established that this is an exciting event, and it makes a whole lot more sense if the witness tells us what was said to her. Now, don’t object anymore, Mr. Hart, when things are so obvious. Now, would you please ask her what Miss Reiland said. Tr. Day 2 at 68.
During Hart’s cross-examination of Nimeth, the man stabbed by Lyell, the court became particularly active, interrupting the cross-examination—without a prior objection from the prosecution—18 times. at 130 (2 interruptions), 132 (2 interruptions), 133, 134, 137, 140, 141, 142, 143, 146, 162, 169, 170, 189; Tr. Day 3 at 22, 38, 41, 43. At least 14 of these interruptions occurred in less than an hour. See Tr. Day 2 at 178. The interruptions often contained implications that Hart’s attempts to discredit Nimeth’s character for truthfulness were not relevant to the case, *3 because Nimeth’s proclivity for lying to the police was “not the issue in this case.” Id . at 170; id. (“[N]o issues have been raised as far as I have been able to determine . . . .”); see id. at 130, 131, 132, 133, 142, 143. When Hart persisted in this line of questioning, the trial judge interjected: “What does that have to do with this? I don’t understand the point you’re making.” Id . at 149. Hart explained that he intended to use the questions to discredit the prosecution’s theory of motive, to which the judge responded, “I guess I just don’t get it.” Id. at 150.
The judge’s repeated interruptions of Hart’s questioning often came in the form of insults directed at Hart. For instance, she told him, “You want to be an actor. Be a lawyer.” Id . at 131. Shortly thereafter, she added: “Don’t act like a child, Mr. Hart. You’re a lawyer,” id . at 133, and “Would you please position yourself and act like [a lawyer],” id . at 134. She also accused him of being “a smart aleck,” id . at 141, of being “silly,” id . at 147, and of “trying to create a furor,” id . at 141. When Hart appeared (to the judge’s mind) to be investigating a forbidden line of questioning, the following exchange resulted:
THE COURT: Mr. Hart, you know you’re exhausting all of us. Mr. Hart, do you have any more questions for this witness before he is excused? MR. HART: Yes, I do, Judge.
THE COURT: I don’t know why you keep doing these things over, and over again. That was a terrible thing, terrible thing for you to do. MR. HART: I disagree.
THE COURT: Doesn’t make any difference whether you agree or not. Tr. Day 3 at 22.
The conflict between the judge and Hart culminated when—once again in the presence of the jury—the judge held Hart in contempt, fined him $250 and commented that “[t]here are some of these people who have never heard lawyers, who have never been in a courtroom before, it is embarrassing to all of us to have you act in this fashion.” Id . at 27. Six days after the cross- examination of Nimeth and the contempt ruling, the judge instructed the jury that she and Hart did not “bear each other any animus,” that the verdict must be based solely on the evidence, that Hart was not “a fact in [the] case” and that finding Hart in contempt should not be considered by the jury when “making a determination about the facts in [the] case.” Tr. Day 6 at 19–20.
The jury returned a guilty verdict. After the jury announced its verdict, Lyell’s counsel asked the court to poll the 14 jurors. During the polling, the first 11 jurors all concurred in the verdict. But the 12th juror apparently changed her mind, refusing to concur in the verdict:
THE CLERK: [Juror] was that and is this your verdict?
JUROR NO. 12: No. I am sorry, Judge.
THE COURT: Don’t talk anymore. Let me just say this to you. May I ask the remaining two . . . jurors, was that and is that your verdict?
JUROR NO. 13: Yes.
JUROR NO. 14: Yes. *4 THE COURT: It is not possible for me to talk to you any further. But I really would ask you to go back and, you know, discuss with each other where you are and what processes you’re involved in to see if you can arrive at a verdict. I don’t urge anyone to give up their ideas or their thoughts, but I do think it is very important to, you know, talk with each other and to see what it is that you disagree upon. If you would be kind enough to do that, I would be appreciative. Id . at 38–39. Lyell’s counsel did not object when the court polled the last two jurors. But after the court gave this charge, Lyell moved for a mistrial. Id. at 39–40. The court did not rule on the motion, and when the jurors returned about an hour later they announced a guilty verdict. Id. at 40–41.
On direct review, a divided panel of the Michigan Court of Appeals, relying on state law, concluded that “the circumstances surrounding the [jury] polling did not tend to coerce the jurors to reach a particular verdict.” People v. Lyell , No. 214100, slip op. at 3. As to the issue of judicial bias, a divided panel (again relying on state law) concluded that “the judge acted within her power and discretion to control the trial” and that her “conduct did not demonstrate partiality that influenced the jury’s verdict.” Id. at 4. In reviewing Lyell’s habeas petition, the district court rejected both claims.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),we may grant
the writ as a general rule only if the state court’s decision on the merits was either “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);
see Williams v. Taylor
,
In this instance, no one disputes that Lyell presented federal polling and fair-trial claims to the state court of appeals. Perhaps because Lyell also raised state-law challenges to his conviction, however, the state court of appeals addressed Lyell’s claims only in state-law terms in its decision. In the absence of a ruling on the merits of these federal-law claims, we must give fresh review to Lyell’s polling and fair-trial claims under the United States Constitution. See Danner v. Motley , 448 F.3d 372, 376 (6th Cir. 2006).
A.
The due-process “principle that jurors may not be coerced into surrendering views
conscientiously held is so clear as to require no elaboration.”
Jenkins v. United States
,
The issue under
Brasfield
is whether the trial court inquired into, and learned, the numerical
division of a deadlocked jury.
See Lowenfield v. Phelps
,
Lyell faces four problems in claiming that
Brasfield
requires us to grant him habeas relief.
First
, since
Brasfield
, the Supreme Court has recognized that the decision involved an exercise of
its supervisory power over the federal courts, not an exercise of its authority to construe the Due
Process Clause.
Lowenfield
,
Lowenfield
, it is true, leaves open the possibility that some combination of an improper
inquiry into the numerical division of a deadlocked jury and of an improper
Allen
charge “might”
violate due process.
See Lowenfield
,
Second , Brasfield and all of the other cases upon which Lyell relies stem from judicial inquiries into the numerical division of a deadlocked jury. Yet there is a world of difference between juror-coercion claims arising from deadlocked juries and those arising from post-verdict juror polling. In the former situation, there is never any reason to expose the numerical division of the jurors. The trial court may decide to give a seemingly deadlocked jury an Allen charge to urge it to continue its deliberations in good faith, but the court has no reason to ask, or find out, which jurors stand where on the charges.
The same is not true with juror polling. There, it is not only necessary but desired (at least from the defendant’s perspective) for the public to learn that at least one juror has opted to take a stand against conviction. Consider what happened in this case and what normally happens in this setting. The jury announced to the court that it had reached a verdict, which required unanimity among the jurors. The jurors returned to the court room, and the foreman read the verdict, stating that the defendant was guilty as charged. At that point, defendant’s counsel, not the court or the prosecution, asked the court to poll the jurors. If there was any tendency to coerce at this point, it was the tendency for jurors to say that what they had just agreed to unanimously in the deliberation room was still their vote in the case. And unlike a deadlocked jury, it was utterly unavoidable that if a juror did have a change of heart, he or she would have to go public with it. That is what happened here when juror 12 explained that she did not support the verdict. At this point, we *6 acknowledge, there seemed to be little point to continuing to poll the last two jurors (save with defense counsel’s consent) because one holdout suffices to send the jury back to deliberate. But there is nothing about the judge’s actions that suggests that this was anything more than a slip in inertia after polling the first 12 jurors. Nor, it bears adding, did defense counsel do anything to stop the judge, which itself suggests a non-coercive environment.
The possibility of unconstitutional coercion under these circumstances seems quite unlikely. Any coercion could not stem from juror 12’s public statement of her position, which was prompted by defense counsel’s request for a poll. And coercion could not flow from the juxtaposition of juror 12’s public statement with the first 11 jurors’ public statements of their position, which also was a necessary consequence of the poll. The risk of coercion, if any, stems from the unsurprising fact that the last two jurors wanted to convict—unsurprising because most jurors presumably do not change their minds minutes after making a decision. The prospect that juror 12, who retained the courage of her convictions to tell the public that she now wanted to change her vote, would be brow-beaten into submitting to the majority simply by the fact that two other jurors (and eleven before that) did not change their minds seems quite slim.
That is all the more true given that the trial judge, immediately after hearing the results of
the poll, asked the jury to continue its deliberations on any disputed issues and permissibly
instructed them in doing so. She urged each of them not to “give up their ideas or thoughts,” and
she told them that the jurors retained the right to disagree with one another. Tr. Day 6 at 38–39. At
no point did the judge require the jury to reach a verdict.
Cf. Jenkins
,
Third , Rule 31(d) of the Federal Rules of Criminal Procedure confirms that jury polling differs considerably from inquiries into the numerical division of a deadlocked jury. Rule 31(d) provides:
Jury Poll. After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.
Unlike an inquiry into the numerical division of a deadlocked jury, sanctioned by no rule or practice, Rule 31(d) allows jury polling with no express limitation and thus permits an inquiry into at least an initial numerical breakdown of the jury. Indeed, the whole premise of the rule would seem to be to permit parties, particularly criminal defendants, to ferret out juror coercion and prevent it. On top of that, because Rule 31(d) permits a trial court to direct the jury to continue deliberations or to discharge the jury when the poll shows an absence of unanimous concurrence, it is not self-evident that polling of the whole jury, even after one juror dissents, disserves the defendant’s interest. Presumably the odds that a trial court will discharge a jury go up when there are two dissenters rather than one.
Fourth
, the federal case law involving jury polling that continues after one juror dissents
from the verdict strongly supports the conclusion that a due process violation did not occur here.
To our knowledge, five federal circuit courts have considered this question. Four courts of appeals
upheld the verdict.
See United States v. Gambino
,
The problem with Spitz , the decision that found a due process violation, is that it applied Brasfield ’s deadlocked-jury rule without considering the differences between the two scenarios. Id. at 917–18. As a result, with little explanation, it applied Brasfield ’s “ per se error” rule to jury polling that continued after one juror dissented. at 917.
The other appellate decisions, by contrast, acknowledge the
Brasfield
rule, then explain why
its inflexibility does not apply to polling claims.
See Gambino
,
All four courts left it to the discretion of the trial court under the facts and circumstances of
the case to continue the poll once it became apparent that there was a recalcitrant juror.
See
Gambino
,
The same factors that these four courts considered in determining that no coercion occurred
prompt a similar conclusion here. Defense counsel in this case did not object to the continued
polling.
See Gambino
,
Judge Clay’s concurrence warrants two brief responses. The contention that the jury polling
in this case violated state law—either Michigan Court Rules,
see
M.C.R. 6.420(D), or Michigan case
law—is of no moment because we may not grant federal habeas relief based on violations of state
law.
Estelle v. McGuire
,
Nor may we shore up the deficiencies in Lyell’s jury-polling argument by looking to the strength of his second claim—that the trial judge’s interaction with defense counsel deprived Lyell of a fair trial. For one, neither Lyell in his pro se brief nor his counsel raised this argument. They both maintained that the Brasfield per se rule applies whenever there is an inquiry into the numerical division of the jury, regardless of the circumstances. That contention, as we have shown, is simply *8 mistaken. For another, the trial court’s mistreatment of defense counsel did not establish a claim of unconstitutional juror coercion. The jury polling occurred soon after the trial court’s instruction that any differences between her and defense counsel had no place in the jury’s deliberations and occurred well after her contempt ruling six days earlier. The polling occurred because defense counsel asked for it and received it, not because he sought something and the trial court rejected it—the unfortunate pattern that had occurred earlier in the trial. The circumstances of the jury polling thus represent a far cry from the judge’s intemperate interactions with defense counsel when she obstructed efforts of defense counsel to try his case. That defense counsel, who was hardly reticent when it came to objections during the trial, did not object to the polling of the thirteenth and fourteenth jurors also suggests that the polling of the last two jurors was at worst inadvertent and at best done with the acquiescence of defense counsel. Notably, when defense counsel moved for a mistrial immediately after the jury returned to its deliberations, he did not make the motion on the ground that the court should not have polled the last two jurors—which is understandable, given that he had just watched the court do that very thing without raising an objection.
B.
Lyell next argues that the trial judge violated another guarantee of the Due Process Clause
of the Fourteenth Amendment—the right to a “fair trial in a fair tribunal before a judge with no
actual bias against the defendant.”
Bracy v. Gramley
, 520 U.S. 899, 904–05 (1997) (internal
quotation marks omitted);
see In re Murchison
,
Under
Liteky
, a judge’s misconduct at trial may be “characterized as bias or prejudice” only
if “it is so extreme as to display clear inability to render fair judgment,”
Liteky
,
Difficult as this standard may be to reach, the trial court seemingly made every effort to satisfy it. As our prior discussion of the trial reveals, the trial judge took over the cross-examination of the central witness in the case (Nimeth) and elicited information not revealed on direct examination. Tr. Day 2 at 152–55. The trial judge rarely waited for the prosecution to object before limiting questioning; she instead chose to limit questioning on her own throughout the trial. The concentration of interruptions during Nimeth’s cross-examination, the derogatory tone and content of many of the interruptions (throughout the trial) and the implicit disapproval of defense counsel’s theory of the case through these interruptions all put Lyell at a unique disadvantage in trying to encourage the jury to see the case through his eyes.
Making matters worse, the trial judge’s interruptions ran in one direction. While the trial judge frequently interrupted Lyell’s presentation of his case in an unhelpful way, she rarely interrupted the prosecution’s presentation of the case, save when doing so helped the government. At one point the judge urged the prosecutor to ask a question even after the prosecutor explained that it would elicit inadmissible hearsay, and at another point she sought an answer to a question that the prosecutor had voluntarily withdrawn.
Altogether, then, we have a case in which the judge
sua sponte
interrupted the prosecution
to assist it,
sua sponte
interrupted Hart’s questioning in a way that undermined his presentation of
the case (frequently during the cross-examination of the central witness in the case), failed to
interrupt in a like manner during the prosecution’s questioning (at least in a way that
undermined
its case), stated or implied her disapproval of Lyell’s theory of the case (evidenced by her statements
to the effect that Nimeth’s proclivity for lying to police was not an issue in the case or that she
“didn’t get” the point of Hart’s motive-questioning) and made clear her disapproval of Lyell’s
defense counsel (calling him an actor, a child, silly and a smart aleck). Capping all of this off was
the trial judge’s inexplicable decision to issue a contempt order against Lyell’s counsel in front of
the jury.
Cf. United States v. Kelley
,
The State’s principal response to all of this is not to defend the trial judge; it is to say that
however poorly she presided over the trial, Lyell still received a constitutionally fair trial. Two
decisions from our circuit suggest otherwise, one arising in a criminal context, one arising in a civil
context. In the criminal case,
United States v. Hickman
,
In the civil case,
Nationwide Mutual Fire Insurance Co. v. Ford Motor Co.
,
Lyell’s trial judge, it seems to us, borrowed a page from the play book of the trial judges in both cases. As in Hickman and Nationwide , the judge sustained objections before they were made; the judge constantly interrupted the examinations of witnesses and did so almost exclusively with respect to one side of the case; the trial involved fairly straightforward issues that did not demand this kind of supervision; and the witnesses at the time were not being unresponsive to the prosecution’s questioning.
Brandt v. Curtis
,
Nor do
McBee v. Grant
,
Other decisions from our court do not offer a handhold for the prosecution’s argument either.
While
United States v. Tilton
,
The State also places considerable weight on the curative instruction issued by the judge and
on the well-accepted presumption that juries may be presumed to follow all jury instructions. For
one, the critical point of the instruction was to respond to her intemperate decision to issue a
contempt order against Lyell’s counsel
in front of the jury
; it did little, if anything, to respond to, or
account for, her other one-sided interruptions in the case. For another, the instruction came six days
after the contempt order, when the damage from the contempt order in combination with her
decision to play prosecutor had already been done.
See McMillan v. Castro
,
III.
For these reasons, we affirm in part, reverse in part and conditionally grant the writ. *11 ___________________
CONCURRENCE ___________________ CLAY, Circuit Judge, concurring. I join the majority opinion’s holding that Lyell’s petition for a writ of habeas corpus should be granted as a result of the trial court’s expressions of bias which denied Lyell a fair trial, but write separately with respect to the trial court’s apparent coercion of the jury as a result of the trial court’s improper polling of the jury. I would find that the trial court’s improper polling and inadequate Allen charge are also bases for granting Lyell’s petition for a writ of habeas corpus.
The instant case arguably represents the most objectionable form of polling conceivable prior
to a court giving an
Allen
charge, and constitutes the kind of inquiry impliedly disproved of by
Brasfield v. United States
,
The majority incorrectly concludes that
Brasfield
applies only to cases where the trial court
inquires into the numerical division of a deadlocked jury. Admittedly, in
Brasfield
, the trial court
inquired as to the numerical division of a jury that “failed to agree after some hours of deliberation,”
on these facts the combination of the polling of the jury and the supplemental instruction was not “coercive” in such a way as to deny petitioner any constitutional right. By so holding we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion.
Lowenfield
,
In the instant case, the jury had returned to announce its verdict, in the course of which the polling revealed that one of the jurors did not agree with the guilty verdict. After a single juror expressed her disagreement with the verdict, no conceivable purpose was served by continuing to poll the jurors except to ascertain where the remaining jurors stood in relation to the jury being unable to reach an unanimous verdict, which of course was not information that the trial court required. The court’s continued inquiry was coercive in that it revealed that there was an eleven to one split in favor of conviction, and indicated that a single juror was the lone holdout for acquittal. The failure to cease polling when a juror repudiated the guilty verdict placed undue pressure on the dissenting juror by revealing to everyone in the courtroom not only that juror’s position, but the fact that she alone held it.
The polling in this case was plainly coercive. In
Brasfield
, the polling revealed only how
the jury was numerically divided.
The majority arbitrarily invokes Fed. R. Civ. P. Rule 31(d) to legitimize the polling in the instant case. Neither party raised this argument in their submissions to this Court. The majority erroneously asserts that jury polling has no express limitation under Fed. R. Civ. P. Rule 31(d). Since Lyell was convicted in Michigan state court, the federal rules are simply not applicable to or relevant in this case. The trial court in this case was obligated to either declare a mistrial or send the jury back for further deliberations as soon as any juror revealed that the verdict was not unanimous. See Michigan Court Rules (“M.C.R.”) 6.420(D). In pertinent part M.C.R. 6.420(D) provides that:
[i]f polling discloses the jurors are not in agreement, the court may (1) discontinue the poll and order the jury to retire for further deliberations, or (2) either (a) with the defendant’s consent, or (b) after determining that the jury is deadlocked or that some other manifest injustice exists, declare a mistrial and discharge the jury.
M.C.R. 6.420(D). 1 Under this Michigan statute, jury polling has express limitations. See, e.g., People v. Echavarria , 233 Mich.App. 356, 362 (Mich. App. 1999). Indeed, in this case, the Michigan Court of Appeals “conclude[d] that the trial court erred in continuing to poll the final two jurors after [a] juror . . . stated she disagreed with the verdict.” People v. Lyell , No. 214100, 2001 WL 671474, at *1 (Mich. App. May 4, 2001) (unreported case). Admittedly, a violation of M.C.R. 1 When the jury left the courtroom to deliberate, Lyell’s counsel moved for a mistrial arguing that the holdout juror was placed under overwhelming pressure to convict. The trial court did not rule on Lyell’s motion. *13 6.420(D) is not a basis for this Court to grant Lyell’s petition for a writ of habeas corpus. However, the majority cannot invoke Fed. R. Civ. P. Rule 31(d) to legitimize the polling because the polling procedure in the instant case is simply not governed by the federal rules. In fact, Respondent concedes that M.C.R. 6.420 governs the polling procedure used in this case. See Respondent’s Final Br. at 6.
The majority finds that the trial court has broad discretion to conduct polling. However, in
affording discretion to the trial court, this Court should be “convinced that [the trial court’s] inquiry
was essentially neutral rather than calculated to affect (the jurors’) judgment.”
United States v.
Brooks
,
This Court has recognized that the circumstances of an
Allen
charge, standing alone, can
render even the giving of a textbook
Allen
charge coercive.
See United States v. Nichols
, 100 Fed.
App’x 524, 528 (6th Cir. June 11, 2004) (unpublished case). Other courts have held that a minority
juror’s fear of exposure is enough to produce coercive pressure on that juror to change his or her
vote
.
Minority jurors “always know their minority status, and if fearfully inclined, may presumably
suspect a disgruntled judge can find them out.”
United States v. Burgos
,
I really would ask you to go back and, you know, discuss with each other where you are and what processes you’re involved in to see if you can arrive at a verdict. I don’t urge anyone to give up their ideas or their thoughts, but I do think it is very important to, you know, talk with each other and to see what it is that you disagree upon. If you would be kind enough to do that, I would be appreciative.
(J.A. at 18) Admittedly, this charge appears to include the requisite warning that jurors should not merely acquiesce to their brethren’s position. However, given the circumstances of this case, in which the trial judge, by her comments throughout the trial, had made clear to the jury that it should return a guilty verdict, the abbreviated instruction to the jury simply could not be expected to counteract the coercive pressure brought to bear on the holdout juror as a result of having been identified in open court as the lone dissenter. Although the majority engages in conjecture and speculation to the effect that the holdout juror changed her mind in open court, there is simply nothing in the record to support this conclusion. For all we know, based on the record before us, the dissenting juror may have never agreed to the verdict that was announced in open court. The circumstances should have indicated to the trial court that the holdout juror was already susceptible to pressure from the other jurors because the jury had ostensibly returned with a “unanimous” verdict, possibly over the objection of the dissenting juror. The revelations in open court could only add to this pressure.
The majority maintains that Lyell’s defense counsel failed to object to the polling and that the lack of an objection suggests a non-coercive environment. It is unclear how the majority reaches this conclusion. The improper polling and flawed Allen charge came at the end of a four-day trial in which the trial judge had continuously and rudely interrupted, berated, criticized, ridiculed, undermined, and discredited Lyell’s defense counsel. ( See, e.g., Day 1 at 56, 61, 63; Day 2 at 68, *14 95, 99, 109, 130 - 33, 136, 138, 140-42, 146, 166, 170-71; Day 3 at 22, 27, 43, 52; Day 4 at 42, 58) [2] Since the trial judge’s abusive conduct culminated in Lyell’s defense counsel being sanctioned in front of the jury, it is no surprise that Lyell’s counsel did not object to the polling. In the hostile and oppressive environment in which defense counsel found himself, the lack of an immediate objection more than likely simply reflected defense counsel’s concern about the impact that further chastisement by the trial judge would have upon further jury deliberations. Contrary to the majority’s position, the record shows that defense counsel did not acquiesce in the polling. Immediately after the jury exited the courtroom, defense counsel moved for a mistrial:
I’m going to move for mistrial based on the grounds that I think the pressure upon the lone hold out juror now given what has just occurred is going to be overwhelming, and whatever, if she does cave in, it is only going to be based on pressure exerted on her having been put into the position where she is, in front of the Court.
(J.A. 204) Defense counsel’s arguments and the timing of the motion for a mistrial clearly indicate that the motion was in response to the improper polling. There is simply no factual basis for the majority’s contention that Lyell’s defense counsel acquiesced in the polling. It is unclear how the majority reconciles finding that the trial court’s expressions of bias infringed Lyell’s right to a fair trail, but that those same expressions of bias did not impact the polling. The majority’s attempt to divorce the polling from the abusive context of the entire case is simply incongruous. Again, instead of relying on the facts and evidence, the majority relies on speculation and conjecture in order to conclude that the environment of the courtroom was non-coercive.
The trial court’s reprehensible conduct throughout the trial revealed a profound bias in favor of the prosecution. In such a context, when the circumstances are viewed in their totality, the trial court’s polling and Allen charge appear to have been part of the court’s ongoing effort to sabotage the trial by coercing the jury into returning a guilty verdict. For these reasons, I would find the trial court’s improper jury polling and inadequate Allen charge violated Lyell’s due process rights and constitute additional bases for granting Lyell’s petition for a writ of habeas corpus. 2 The trial transcript is indicated by the day and page number of the transcript because the transcript was not
included in the Joint Appendix.