United States v. Burl A. Sawyers, Vincent J. Johnkoski, Bonn Brown, Alfred W. Schroath
423 F.2d 1335
4th Cir.
1970
Check Treatment

*1 would, perhaps, look resentative. We argument with more favor being by employees made were by a rival union

themselves nothing in this record There is behalf. suggest, however, employees sought them-

have ever disassociate join another or to

selves from Union

union. summary, conclude

principles upon Board based its administrative

its order were within authority, applying these and that findings

principles the Board’s (5) Company 8(a) violated § bargain Act, refusing

Union, supported substantial evi- as a considered

dence record

whole. Board will be en-

The order

forced. America,

UNITED STATES of Appellee, Johnkoski, SAWYERS,

Burl J. A. Vincent Schroath, Brown, Bonn Alfred W. Appellants.

No. 12872. Appeals,

United States Court

Fourth Circuit.

Argued Oct. 1969.

Decided March

Raymond Bergan, Washington, D. W. C., Stanley Preiser, Charleston, W. E. Va., Henry Angel, Atlanta, Ga. (Edward Williams, Bennett Harold Un- gar Brodsky, Washington, D. and Steven C., brief), appellants. on the Ruff, Attorney, Department Charles King N. (Alfred Justice and Wallace Johnson, Attys., Department H. of Jus- tice, Ferguson, J. S. Milton U. brief), Atty., appellee. SOBELOFF, Before and CRAVEN BUTZNER, Judges. Circuit Judge: CRAVEN, Circuit defendants, Sawyers, Six Burl A. Vin Johnkoski, Schroath, cent J. Alfred W. Brown, Gore, Bonn Truman and William Barron, February Wallace were indicted 14, 1968, under U.S.C.A. § (1966).1 The one count indictment charged conspiracy bribery in to commit violation of 18 1952 (1951) U.S.C.A. § (Supp.1969).2 granted A mistrial was 1. 18 manner or for more of 000 or years, effect to commit each shall be If U.S.C.A. two more or imprisoned or such both. § any agency object any 371: fined not more or to defraud the United any persons persons conspire * * * offense purpose, more than do thereof against conspiracy, and one or than act either $10,- five any 2. 18 foreign in interstate carrying on, cluding tablish, carry on, motion, U.S.C.A. sí: (a) thereafter Whoever otherwise commerce or uses management, [*] § 1952: mail, or performs travels promote, foreign commerce, sfc or facilitate with intent unlawful establishment, in interstate s}e manage, any facility attempts activity, to— >¡< pro- es- in- or asserting attorney validity trial, be- Gore when to defendant during error 13 re- Former Governor reversible occurred trial. ill came suggest points spects. many acquitted, de- error So Barron was W.W. Schroath, so, Johnkoski, Sawyers, that none are valid. Even fendants assigned, carefully points considered the Defendants convicted. and Brown were rough preparing draft fined to the extent of were each and Schroath Brown *3 each, years im- reflection four discussion of $10,000 sentenced and Sawyers points think that most do not prisonment, defendants while length doubling merit of the to two final sentenced were Johnkoski and points $10,000, $5,000 to include them. The two years and each and fined interest of most relate to so-called respectively. the convictions. We affirm question the asserted “Allen” and charged that Brown The indictment pretrial publicity. legitimate represented and Schroath they of as- firms that could be business THE ALLEN I. CHARGE. obtaining from the in sistance business giving complain Defendants about pro- Virginia would of West and State charge3 “dynamite” of a or “Allen” government paid cure contracts state jury body it was indicated selling em- firms to do so. Numerous The deadlocked. had deliberated paid ployed and Brown and Schroath for 15 hours its foreman about when money into several substantial sums following sent the note to the court: corporations and controlled established by receive these and Schroath to Brown juror “the We have stated: conspiracy part payments. It get judge will all over those that vote corpora- and the Brown Schroath guilty.” obtaining receiving payments for tions cursed, This made slan- has lat- were to taken over business state along ju- derous another remarks with corporation, all six er which another chewings gum. throwing ror [sic] equally. In this own defendants would These two are sister-in-law charged way, that state the indictment go and want to home. [sic] grant cause officials were bribed to or guilty guilty. is 10 & 2 not vote granted contracts favorable a solid-vote and no one will through paying them firms for business give. and Schroath. Brown lunch, When the court reconvened after diligent ingenious appeal, brought and On into the courtroom shotgun approach charge.4 counsel have taken a and specified perform acts in charge given 4. The the court reads: (1), (2), (3), subparagraphs Foreman, and shall mem- THE Mr. and COURT: $10,000 im- be fined not more than or bers of the the court has received years, prisoned you for more five than me the information that sent from the your been, standpoint having right or both. be- (b) hour, used “unlawful As in section fore lunch unable time activity” (1) any means business enter- to reach a verdict. prise involving gambling, liquor you which on I to come back in here have asked you the Federal excise tax has not been further. You talk with little paid, prostitution narcotics, your offenses in have been room in the process deliberating approximately violation of the laws of the State in which for overall, are committed or of the United sixteen hours. In view of the bribery, extortion, consumed, evidence, par- or arson time and and ticularly documentary in violation evidence, laws State which committed or of the United States. not unusual. However, sug- I wish to make a few gestions, you may desire to con- 3. The name is derived from Allen v. Unit- your deliberations, along sider with ed L.Ed. 528. frankness, proper and deference and opinions regard of each to and the instructions all evidence and all the conferring say, is to to- other. That gether, given. previously you pay due atten- each should realize, im- you This, well respect views of the tion ex- has been portant trial case. others, argu- listen each other’s prosecution pensive to both disposition ments to re-examine agree you fail If defense. your own views. open un- verdict, left the case you greater If much the number of cases, be dis- it must Like all decided. conviction, dissenting juror each appears no posed There of sometime. ought to consider whether a doubt another reason to believe that one, her mind is own reasonable equally expensive sides. to both not be impression since it makes no effective appear be- reason Nor there does equally many the minds of so hon- again be tried can lieve that the case est, intelligent equally jurors, fellow who exhaustively has than it or more better responsibility, bear the same serve under Any been, further on either side. oath, sanction same *4 and be in the same manner selected with, may evidence heard the same you from same source as have the assume, equal the same attention and a appears no to reason chosen. So there truth. the desire arrive at the On to the would be sub- believe that case ever hand, even a other if a or women mitted to twelve men and more you acquittal, lesser are for number of intelligent, impartial, or more more com- seriously ought other to ask them- petent it, to decide or that more or clear- they again selves not whether do have produced er could evidence on behalf the correctness a reason to doubt of either side. judgment is not concurred suggest them- these matters course Of many jurors, of their whether fellow and of us brief to all reflection selves weight they not distrust the or should through this trial. who have sat sufficiency fails of evidence which con- to only because reason are mentioned is vince the minds of several of fellows your may escaped some of them have certainty beyond to a reason- a moral and fully attention, which must have been able doubt. up reviewing occupied to the this time got partisans. You are not You’ve no They along which, evidence. are matters reward; pun- to friends enemies to perhaps with others and more obvious judges judges ish. You the facts. are — ones, important us remind how and de- purpose Your sole is the to ascertain agree you unanimously it is that sirable upon you. truth the You from evidence before “Guilty” a verdict of or “Not Guil- judges are the sole of the and exclusive ty”, you if can so without violence to do credibility the of all witnesses and the your judgment own individual and con- weight and effect the of all evidence. science. performance high duty, In the of this liberty you disregard unnecessary that the Court are all add at com- It is counsel, any juror including ments to surrender court not wish both does and making stat- I As course the remarks you. am now or her conscientious convictions. time the at ed in the instructions you, not sur- was do case submitted at Remember all times that no your expected yield as to honest convictions render conscientious con- solely weight may be- effect evidence viction she as he or jurors, weight cause of the of the other or effect But remem- of evidence. returning that, mere ber after full for the also deliberation and evidence, consideration of all it verdict. your agree upon verdict, duty you if duty However, your it your violating do can so without in- to deliberate one another and consult with judgment your dividual con- individual agreement, reaching an view to with a science. you in- so violence to without can do may your you judgment. You conduct deliberations as must de- Each of dividual you choose, suggest, however, you I yourself, but should cide the case you you carefully when retire re-examine do so after a consideration bearing jurors. your and reconsider all the evidence inAnd fellow evidence questions you. you deliberations, before your the course of opin- change your not hesitate to instructions, Under these since there erroneous. multiple ion convinced charged when defendants in this bring indictment, you minds to twelve In order one or more find you guilty guilty result, of the must examine accused or not unanimous charged you questions with candor the indictment. And at submitted

I339 charge Defendants contend that was to find or more one defendants not (1) guilty respects: guilty, provided erroneous in several in or- and two or more pressure defendants, least, der that unless counterbalance two at guilty guilty guilty, acquit- choose between were found all had to be verdicts, the burden ted. Record at reminder of Thereafter 1999-2001. proof been included in the retired and deliberated should have about charge; (2) returning rested one and half because defense hours before prosecution’s ease, acquitting lan- verdict former end Governor Bar- Johnkoski, guage supplemental convicting Sawyers, ron stat- exhaustive, Brown, ing better, that no and Schroath. or more produced by evidence either could supplemental We think these on a retrial side should have been elimi- charges, under the circumstances nated; giv- because was complexity of the trial and its duration note, response en in it con- weeks, of some two were not so coercive jury’s firmed the belief impair integrity as to ver “get all over those that vote Previously dicts. the trial had guilty;” (4) language in properly clearly placed the burden indicating might be lei- proof. think We it was not error ap- surely was coercive view of the repeat that he supple failed to it in his proaching Day For Labor weekend. Moreover, mental instructions. he reasons, urge, these defendants not asked to do so. Under the correct sufficiently *5 jurors may formulation of that burden require new trial. coercive to guilty arrive at a verdict of not either position To their bolster defendants they because find the to facts be consist point inquiry by to a second made ent with they innocence or because are jury supple- about 15 minutes after unable to determine the facts con given mental been had and prosecution scientious effort. Since the jury had retired. The second note sent may guilty only obtain a verdict of if by read: alleged is convinced of the facts If beyond two or defendants are doubt, more reasonable whereas guilty remaining found and the de- opportunity defendant has of the double guilty, findings are fendants are declared not consistent with or an innocence guilty all inability is, defendants considered ? to determine what the truth degree we think some reasonable of en your charge, you last additional couragement to arrive a verdict is not so indicated that each defendant inherently unfair to defendants. separately (as should be voted on [sic]). verdict sheet reads How- Because the defendants rested ever, during impression the trial offering evidence, their case without guilty was if conceived that one was they complain language supple guilty. —all were mental to the effect there that receiving After in- “reason this note to believe that the case permissible again formed the it was can be tried better or more ex- necessary. The marshals have been instructed, instructed, and are now to your during may you time deliberations you your you take hotel whenever are your guilty return into court verdict of ready go. guilty respect or not defend- charged you trial, may retire, Foreman, ant and on as whom You now Mr. unanimously agreed upon have a verdict members of and continue your charged as defendants deliberations in such manner by your good on trial in this indictment. shall be determined your leisurely judgment You be as deliber- conscientious as reasonable men requires; you ations as the occasion and women. you may shall take all the time feel always They been, nority jurors. know either haustively it has than status, fearfully in- nothing unfair perceive We side.” suspect dis- clined, may presumably well were Defendants a comment. such gruntled judge can find them out. competent counsel. represented suggests Nothing in the record impossible pre to measure assumed should long cisely how in time units the defendants retrial of a event required jury may de reasonably change and choose would their tactics require delibera To continued liberate. evidence. offer not seem tion after some 15 hours does points two other defendants’ case to us unreasonable or coercive for a respect Allen complexity error of this and duration. simply formulations documentary different of evidence alone that charge is such a their contention boxes fered to the fills three in this height approximately outlawed coercive and to a stacked dyna- testimony examination circuit. An four and introduc feet. The judge in documentary used the trial mite tion of the evidence con in- days. twice this case shows court such some 12 trial Under sumed ju- emphasizing language these, that no quick acquies cluded circumstances her difficulty ror should conscien- surrender ar ence indication opinions riving think, have, tious convictions because at a verdict duty contrary or for mere other the district Indeed, returning prop- every keep a verdict. to exert reasonable effort erly instruction, the trial balance his the criminal current. dockets judge charged: years aware recent We are increasing there has been criticism f a lesser or even [I] charges. Thaggard type acquittal, you are for number of other 1966); jurors ought seriously ask them- Green v. United again not have selves whether do 1962); Andrews *6 v. a reason to the correctness of doubt States, 127, (5th 129 309 F.2d Cir. judgment is not concurred in which 1962) dissenting); (Wisdom Huffman many jurors, fellow and of States, (5th v. United F.2d 754 Cir. 297 they should not distrust whether 1962) (Brown dissenting). fuels What weight sufficiency of evidence composite the criticism to be a of seems which to the minds of fails convince two ideas: to a cer- several their fellows moral (1) tainty beyond That trial can- since the and a reasonable doubt. verdict, not coerce a Jenkins v. United slightest There was not the intimation States, 445, 1059, 380 85 S.Ct. 13 U.S. impatience minority, any with the nor (1965), may per- L.Ed.2d he not words could be construed further suade induce deliberation expression displea- threat or even an retired; jury once the has suggested sure. is not us to from is That some source there expres- tone of and facial voice hung right jury, derived the to a (aspects appear sion that cannot right liberty. which is a bulwark of record) other than calm and dis- were States, Huffman F. See United passionate. of the divi- That he knew 754, (5th 1962) (Brown 2d Cir. significant may judging sion concurring dissenting); Com motivation, especially where he makes Instructing ment, Deadlocked inquiry, States, Brasfield v. United Juries, Yale L.J. 100 448, 135, U.S. 71 L.Ed. 345 (1926), reject significance, conceptions. not of but we We both think, right respect hung potential impact think, jury, is em larger right of his on mi- instructions braced to a ver- within simply very acquittal premise system ju- diet of when is of our is that empaneled the facts unable ascertain ries are ascertain guilt depend. truth, meaning This “second which is of “verdict.” distinguished acquittal, chance” occasionally When a defendant bene innocence, is from a determination hung fits, does, is he from a he up proof is bound in our burden of getting not he is entitled to have what prov- similar verdict the Scotch “not something criti less. Beneath the hung ju- true, course, en.” It is inducing cism of instructions verdict liberty up ries have sometimes shored apparent assumption such an again, and it will occur but to doubtless always detrimental to de instruction hang right anyone assert has the statis fendants. unaware We right than the a true rather survey proving disproving tical such verdict is erroneous. know, however, assumption. We do “right” hung infrequently acquit The so-called to a that not verdicts of greater right type is at most no than the tal instructions. So follow know, to an irrational far verdict. See United as we there is reason (4th Moylan, suppose type States v. F.2d 1002 that an Allen instruction 1969); compare likely Cir. United is more induce a verdict of States Davis, (4th 1969). guilty guilty.6 Indeed, not 413 F.2d 148 Cir. than of may respect “right,” inquire With trial not as to how the either States, jury stands, may clear that insist Brasfield defendant advising jurors L.Ed. 345 instruction knowingly irrationally (1926), may may acquit and thus and that hang way deliberately press except one them for a verdict either jury. power the rare instance dis Yet the to do when beyond him, inquiry, question. both close to their divi without E.g., sion. Bowen v. United “right” A ei defendant has no 1946) . hung ther an irrational verdict or a jury. right He has calmly dispassionate A bal jury speak being without coerced. The part on the of a anced effort In this case former Barron Governor (Charge original followed acquitted. charge he Without the Allen closely Allen v. States might well have suffered the ordeal of hour five minutes delibera after one second trial. taken, upheld) ; exception tion with no Huffman v. United 6. An examination of the case law reveals 1962) (Charge given after five uncertainty divergence opin *7 excepted to, hours of deliberation charge ion about the effects of the Allen charging, jury alia, inter if the followed any given that exist fact situation. principles given by the of law the court See, g., States, e. Brasfield v. United they ought and recalled the evidence to be 448, 135, U.S. 71 L.Ed. 345 agree verdict; reversed) ; able to on a held (Giving charge Allen after in Rogers, 433, United States v. 289 F.2d quiry by jury’s court as to extent of di (4th 1961) (Charge omitting Cir. ; coercive) Thaggard vision was v. Unit language juror that no should abandon States, 735, (5th ed 354 F.2d n. 2 convictions, reversed); conscientious And 1965) (Allen charge given Cir. after a one States, erson 262 F.2d day deliberation, but without indica (8th 1959) (Giving charge Cir. Allen deadlock, request tion of or for further inquiring, specific after not about nu instructions, by jury, upheld) ; Green v. division, jury merical but whether States, (5th United 309 F.2d evenly receiving posi “at all divided” and 1962) (Charge stating Cir. it is minori response tive coercive, held not since there ty’s duty arguments to listen to of the ma minority coerce!) ; was no jority Bowen v. with judg distrust of their own ment, majority (8th United judg since will Cir. have better 1946) (Allen charge given ment minority, than the mere after exceeded foreman permissible limits); jury Andrews sent one; note that United divided 1962) F.2d held, error). no doing diet, comments and in so his to us not seem does a verdict to induce convic- toward jury. and not slanted balanced province the the invade tion, perceive harm to are unable to all, the we What, purpose of is the jury? Is the defendant. charge the initial upon the verdict based induce a it not to would confess that we We given it has he the law as evidence charge given type here the Allen like judge in the Why the trial them? exactly the did mirror so better if it given power com- system the federal charge.7 language original Allen of the evidence, place the and to the ment on fairer, balanced, and would better It be jury the advise proof, and burden duty of had made of the if mention accept law the duty to it is that majority and consider to listen help tois them, it unless gives minority viewpoint, it to we concede he for If verdict? being majority a true at does not necessari jury arrive ly right. instruc- States make one United jurors misunderstand seriously Rogers, think, one, tions, no writing Judge Haynsworth, for not subse- Chief suggest If, reversing be repeat a conviction them. the court clarify or quently charge omitting type deliber- urges Allen time, further of an cause he the same duty yield agree juror’s a ver- not to reference to a effort in an ation Project reaching agreement, view to Association Bar American 7. The Jus if can be done without violence Criminal Standards on Minimum giving judgment; disapproved expressly individual has tice (III) juror but decide each a deadlocked Allen himself, given after an be the case for impartial be recommended has deliberate, to be consideration of evidence retires to fore jurors; necessary with his fellow repeated a deadlock. if (IV) in the delibera- MINIMU course of ON PROJECT A.B.A. tions, juror should not hesitate to M JUS CRIMINAL FOR STANDARDS (Ap change reexamine his own views and his TICE, 5.4 § JURY BY TRIAL opinion erroneous; Furthermore, 1968). Draft, convinced it proved Jury Operation juror (V) of the that each who Committee finds himself System of the Conference in the shall reconsider his of the Judicial light opinions recommended has States Courts views longer majority, juror Allen and each who him- finds judicial policy. equal give The Ju a matter of shall con- self minority. recommended sideration to the views dicial Conference charge approved Project (VI) the A.B.A. that no should surrender addition, given, weight of the one instead honest conviction as to the charge. solely RE TO SUPPLEMENT effect evidence because jurors, THE THE ON PORT OF COMMITTEE of his fellow SYSTEM, returning THE OF JURY the mere OPERATION a ver- THE OF dict. JUDICIAL CONFERENCE (b) is in appears STATES UNITED If it to the court that teresting to note that Committee did agree, has been unable to the court may require on constitu not base its recommendation to continue their de- problems charge, may give tional with the Allen repeat liberations and an in- provided but considered use of the mat (a). struction as in subsection “judicial policy.” require ter of Id. at 3. The court shall not or threaten approved require The version the Judicial *8 to deliberate for an length Conference reads: unreasonable of time or for unrea- Length deliberations; 5.4 of (Emphasized para- deadlocked sonable intervals. jury. graph is the one recommended for inser- (a) by Conference.) Before the retires delibera- tion the Judicial tion, may give the court an instruction SUPPLEMENT TO REPORT OF THE jury: which informs the COMMITTEE ON THE OPERATION (I) verdict, that in order return a OF THE JURY SYSTEM THE OF JU- juror agree thereto; each DICIAL CONFERENCE OF THE (II) duty that (1969). have a to con- UNITED 2 STATES sult with one another and to deliberate conviction, said that district conscientious Here the thought pretrial approved publicity “the in Allen that did [had] open venue, given here, change there would not warrant a been of and aft- propriety.” clippings question er of Whether an examination in the its opened bit, agreement. question has a ad- record we find not the we ourself in ap- this here the rule in circuit that record; clippings There are 176 pure propriate use of the Allen these, reported proceedings various so, per se Even we reversible error. trial, including that occurred in the strongly modified recommend use of a appointment Judge Martin from part version Allen that includes that case, Carolina South to hear of the of the Judicial recommendation granting continuance, excerpts of a italicized footnote Conference rest, from the indictment. Of the Despite clippings criti all the adverse dealt with events the local type charges, politics Virginia. it political think cism of Allen we of West single significant a of the that not one scene in that state had been thrown into charges upheaval by in an circuits has outlawed leveled against juries Many structions for the the defendants. of the inducing agree clippings directly further deliberation did not concentrate however, appellants, ment United v. but on verdict.8 States West Virginia gubernatorial Fioravanti, (3rd race, F.2d which had typical. appears by What affected the indictments. Four excerpts of the of the withdrawn from the discretion dealt with matters other against judges body district in the main of that than the case the defendants and required familiarity foot is all restored in final would have intimate resulting change only case and note 32. The real defendants any bearing judges direction to the district all. Another four dealt exculpatory by Third not with shall statements .Circuit give instructions, press. main the defendants themselves to the either significant, think, body only It is or in the form of 8 of clippings supplement, juror to dis the other direct a mentioned judgment trust his defendants to the exclusion of former if he finds own large governor taking great of the Barron. The bulk of the agree publicity hit view Barron far harder different from his own. than the We original others,9 yet improves Allen Barron defend- charge. acquitted. ant Sheppard-type publicity. This was not II. PRETRIAL PUBLICITY There were no editorials slanted arti- complain The defendants also demanding Indeed, cles conviction. our for a denial of their motion publicity careful examination all re- change venue, alleging intensive any prospec- veals little more than what pretrial impossible publicity made tive when learn the indict- proc them to receive a fair trial. Due read, opening ment or the state- requires receive ess accused published ments made. information impartial out free from publi- more here amounted to little than Maxwell, Sheppard charges side influences. contained in the cation L.Ed.2d indictments and denials defend- recently following: “BARRON, has reaffirm- 8. The Fifth Circuit lines is the proper charge. ed a Sanders WILL SEPARATE OTHERS SEEK Daily Mail, March TRIALS.” Charleston 1969). example, most 1968. Like the emphasized name, headlines Barron’s many Bar- 9. Even the concentrated on headlines used his name the exclusion of Exemplifying ron. most of the head- the others. *9 know, specific headlines, guilt. reports, no far we news or of their So as ants by brought suggested, either editorials to the it has never been attention of judge possible Court, preju- trial Supreme the Reardon Com- sources of mittee, Opera- been, would, dice. Had the Committee on there it of course, Jury System duty inquire of the Judicial have tion been his impact upon veniremen, that about Conference the United kept specific Sheppard-type se- are to be absent accusations of crime items necessarily prejudicial Publicity per publicity, not se is cret. there was duty. prejudicial. nor in such To in the briefs have asked entire Neither panel any de- argument for the were counsel whether of them oral had heard any anything and, point prejudicial us item out to able to defendants fendants so, containing might publicity information to state nature it well mistrial, conjecture every shown at have not be caused a trial that could reasonably lawyer general might questioning af- that aware that the trial and juror. startling impartial of veniremen fect can elicit some an otherwise replies. conjecture Absent a basis for complain, The defendants also specific prejudicial items however, by conducted voir dire venire, agree reached the we with the inadequate. judge The was district district it wiser was court, among questions, other asked phrase questioning gen- the voir dire you prospective jurors: formed “Have eral terms.10 guilt any opinion expressed Affirmed. If the defendant?” or innocence of “no,” question was: answer was the next you you SOBELOFF, Judge (dissent- reason “Do know Circuit give government ing) could not both the : impartial a fair defendants principal question The raised on this trial, just render and a true and verdict appeal propriety concerns the of the Al according evidence to the law and [sic] len-type given by judge to the first If the answer to the case?” jury. turn The decision does “yes,” question question the next was solely upon a of Allen consideration closely, would be: “Now listen charges general. If that were the your require from to remove evidence difficulty present it would issue you you say opinion that mind the growing dis enough, as evidence juror expressed?” No have formed or re enchantment of some our most ex formed or that he had who indicated case, spected judges its use. Our pressed opinion was seated. however, unique feature is marked object to dire the voir defendants instruction which made the question the court refused because particularly unsuitable. prospective jurors had about what approximately fifteen hours After they had and what read of the case trial sent the deliberation the think television. We heard on radio or a note read: which judge’s to conduct trial refusal ‘the stated: general have a inquisition “We correct. What get those that vote pre- over will all the nature have said about guilty.’ governs publicity There were here. here, action district with the MINIMUM 10. See A.B.A. PROJECT ON only applicable are standards JUS- since the FOR CRIMINAL STANDARDS exposure prej- possibility TICE, when some CRIMINAL FOR STANDARDS present. such Here no material FREE udicial JUSTICE, TRIAL AND FAIR present, possibility defend- because Draft, (Approved PRESS any prejudicial pointed ma- never ants for se- certain standards sets out terial. lecting juries where cases criminal questions prejudice in the instant raised. text of the 1. For the note case see not conflict recommended do standards

1345 cursed, has This made slan- that once the has retired to con- along ju- derous remarks with another sider of its verdict it should not be throwing chewings gum. subjected ror These appear- to so much jurors want any two are sister-in-law and any ance of from influence source go home. producing a ver- dict. The should be left guilty 2 The guilty. 10 and vote is unhampered expression of their own consciences, independently arrived at.2 It is a solid-vote and no one will give.” zealously guarded ju- The courts have response judge de- note the function, rors in their decisional so that supplemental charge. ap- livered his Its may truth be their in- determined propriateness judged must be in relation dependent view of evidence under note, to the advised as to the instructions law. judge numerically, how stood who Of all come in contact conveyed to him a en- also brief but jury, the trial commands the lightening picture of conditions greatest respect, uniquely and he is in a question presented for room. position jurors. to influence the As review is whether charge, put not much advert it in which did so Fuller Starr v. Chief Justice proper response under note, 614, States, 626, 153 14 S. United U.S. these circumstances. 923, (1893), 919, 38 “[i]t 841 Ct. L.Ed. system jury is that under obvious I trial on the influence of the trials matter, preliminary be As a properly necessarily and respec- generally helpful to consider lightest great weight, word and that his the ef- tive roles of deference, is received intimation the Allen fect of the use controlling.” may prove each. jurispru- accepted It is in our modern exceptions3 the Allen notable With to de- dence must be allowed vogue, generally in still influence. liberate from outside free it has been Yet least modified form. in years, increasingly recent in meaning criticized of Constitu- [T]he essential 4 judges commentators.5 by jury both tionally guaranteed entirely. v. State Thaggard Judge concurring ned the Coleman, 2. 161, Thomas, P.2d 197 (5th 86 Ariz. 342 735, States, v. United 354 F.2d 741 543, ; Randall, (1959) 958, v. 137 Mont. State denied, Cir. cert. 383 U.S. (1960). 1054 (1966). 353 P.2d 1222, 86 S.Ct. 16 L.Ed.2d 301 supra, 3; Wynn, note States v. 4. United recently 3. The Third Circuit has outlaw Fioravanti, supra, note States v. United charge. ed future use of the Allen Unit Knaack, supra, 3; note v. States United Fioravanti, ed States v. 412 407 F.2d States, Thaggard 3; 354 F.2d v. United ad Seventh Circuit has concurring), 1965) (Coleman, J., (5th Cir. 735 judges “spar vised that district 958, denied, U.S. 86 t. 383 cer ing Allen-type using cautious” (1966); 1222, Jen 16 L.Ed.2d 301 S.Ct. charges, Knaack, United States 409 v. U.S.App.D.C. States, 117 v. United kins (7th Cir.), denied, F.2d 418 cert. (Wright, J., (1964) 346, F.2d 220 831, 83, 87, U.S. L.Ed.2d dissenting), rev., 445, 85 S.Ct. 380 U.S. and has recommended use of the A.B.A. (1965); 1059, Walker 13 L.Ed.2d 957 approved charge, infra, note where (5th Cir.) United necessary. one United States dissenting part), J., (Brown, de cert. Brown, (7th 1969). 411 F.2d 930 Cir. 15 L. nied, The Tenth suggested Circuit has ; Andrews Ed.2d an Allen given, is to be it must 1962) F.2d charge. the main denied, dissenting), J., (Wisdom, cert. Wynn, States v. 1969). Arizona and page Montana have ban- 1346. See note own circuit as have both recommended that the Allen has been described our *11 charge longer given “approaching] to which the no the limits deadlocked juries, go suggesting and court in have recommended alterna should 6 supplemental desirability agreement tive instructions. Better of avoid- the and still, necessity reports preference express a retrial before both ance of the of Rogers, jury.” including subject for another v. matter in the United States charge (4th 1961). original 433, over-emphasis. 435 Cir. avoid faithfully reports majority opinion nearly three-quarters span Over the recommendations, de these but century Supreme aof since Court the by flected them. specific upheld supplemental the States, in v. United 164 U.S. Likewise, re- Third in the Circuit the 154, (1896), 492, L.Ed. 528 41 Fioravanti, v. cent of United case States many jurists investigated pro able (3rd for- has Cir. juries. deal with deadlocked cedures to use of the Allen bidden future majority opin fact, noted in supplementary and, form of where some Proj Association ion, Bar American appropriate, rec- has instruction seems Criminal Standards Minimum ect on charge formulated use of the ommended Opera on Committee and Justice Jury Devitt, Prac- Federal & in Mathes Judicial System of Jury tion of Instructions, 79.01.7 § tice and Courts States the United Conference duty con- (II) have a 939, 970 L.Ed.2d 946, 9 S.Ct. 83 U.S. to deliberate and one another with F. sult 309 ; (1963) v. United Green agreement, reaching an a view to 1962) ; with States (5th 2d 852 1962) ; without violence can done if it Smith, 341 F.2d 303 v. judgment; individual F.2d 754 297 Huffman juror (III) decide the must each 955, denied, Cir.), cert. himself, im- an ; case (1962) State L.Ed.2d evidence partial 3; consideration supra, Ran Thomas, State note jurors; his fellow supra, dall, note 3. (IV) of delibera- course Project g., Minimum See, juror on tions, e. A.B.A. hesitate to 5. should not Justice, change Trial for Criminal his own views Standards reexamine 1968); Supp Draft, erroneous; Jury (Approved opinion it is 5.4 if convinced § his Report juror (V) Committee finds him- who that each lement the System, Jury Operation Judi reconsider in the shall self light opinions States of the United cial Conference the juror views Project Progress (1969) ; Clark, Ef majority, who each finds Report equal give of the Joint Justice —A fective shall himself in the J.Am.Jud.Soc’y Committee, the minor- consideration the views of Instructing Comment, ; (1963) ity. Dead On Juries, juror (VI) Yale L.J. locked surrender Comment, weight (1968) ; Deadlocked Juries his honest conviction as to the Dynamite: solely A Look Critical effect of evidence or because Charge," jurors, “Allen U.Chi.L.Rev. of his fellow Process, (1964) ; Note, returning Judicial Due for the mere a ver- Jury: Hung Economy A Re and the dict. Charge, (b) appears of the Allen 53 Va. examination If it court that agree, L.Rev. 123 has been unable the court may require continue organizations 6. The have recommended two may give repeat deliberations and an virtually The ver- identical instructions. provided (a). instruction as in subsection approved by sion the Judicial Conference require The court shall threaten reads: require to deliberate for Length deliberations; 5.4 deadlocked length of unreasonable time or for unrea- jury. sonable intervals. Subparagraph (V) (a) was not included Before the retires for delib- eration, give Bar American Association recommend- the court an instruc- charge. jury: ed tion which informs the (I) verdict, your duty, jurors, order to return It consult agree thereto; another, each one and to deliberate essentially coercive nature of the II stress In this case we are not called importance achieving a verdict propriety Allen-type determine the of an manifested characteriza various and all given by circumstances. tions it has been its advocates traditionally Accepting arguendo general proposi- detractors alike. “dynamite charge,” known tion, as the majority opinion, as stated in the variously has to as “nitro referred appropriate in an a “calm- situation *12 States, glycerin,” Huffman v. United 5 ly dispassionate balanced on effort the Cir., 754, (Brown, 759 part judge of a trial induce verdict” dissenting); J., degree “third in the province jury, does not invade the People, struction,” Leech 112 Colo. v. general proposition this cannot decide (1944) ; 120, 346, 146 P.2d and the 347 present the case. instruction,” Nelson, “shotgun State v. 202, (1958). 428, 204 63 321 P.2d N.M. jurisdictions allow Those ef presumed its eloquently attests This charges assumption type do so for 8 not be must “Dynamite,” it fect. language nor used that neither han dangerous should be gotten, they are under which circumstances 9 care. dled with The Allen makes coercive. them reaching agreement an a view with denied, 926, 1965), (7th U.S. 383 Cir. cert. you violence without do so can if (1966) ; 930, L.Ed.2d 846 86 S.Ct. 15 you judgment. Each individual States, F.2d 852 309 v. United Green yourself, do case for decide the Rog 1962) ; (5th v. United States Cir. impartial consideration an so (4th 1961) ; ers, Cir. 289 F.2d 433 your ease with in the of the evidence agree, charged jury had to Jen your jurors. course of In the fellow States, 445, 85 v. United 380 kins U.S. deliberations, hesitate to re- not do (1965); 1059, Unit L.Ed.2d 957 13 S.Ct. change views, your own examine (6th Harris, 391 348 States v. F.2d ed your opinion, is erro- if convinced 1968) ; or said that he would Cir. your do hon- neous. But not surrender jury brought if in a convic lenient weight to the or effect est conviction as tion, States, Demetree v. F. United 207 solely of evidence because (5th 1953) ; 892 Cir. 2d threatened your jurors, fellow or for the mere keep spec deliberating returning a verdict. agreement ified or time indefinite unless prevailing opinion argument In the reached, City was Mead of Richland by allowing delivery advanced Center, 537, Wisc. 419 237 297 N.W. of this instruction Fioravanti substantial- ly judges to the returns district dis- 9. Other circumstances which courts have cretion deliver which it had deciding considered whether Allen- just purportedly I do so outlawed. type charge length was coercive are the appropriate read that case. In circum- time deliberated after delivery stances the of the recommended given, Am.Jur., 53 Trial § 952 well-balanced instruction would not have therein; and cases cited whether or not consequences implicit the harsh in an objected charge, counsel to the Sanders Allen-type charge. This recommended States, (5th v. United 1969) ; 415 F.2d 621 Cir. charge clearly apprises panel the entire States, Huffman v. United 297 position it should reevaluate its (5th Cir.), denied, F.2d 754 cert. 370 reaching a view to a decision. is in 955, 1605, U.S. 82 S.Ct. 8 L.Ed.2d 820 way minority no aimed at the and defuses (1962) ; Christy States, dynamite supplemental Allen-type 357, (9th F.2d 17 Alaska 107 Cir. charges. denied, 919, 1438, cert. 360 U.S. 79 S.Ct. Allen-type charges Courts have held that 1535, denied, 3 L.Ed.2d reh. 361 U.S. judge coercive: the trial failed to 857, 47, (1959) ; L.Ed.2d 96 majority’s duty state that it was also the judge inquiry and whether the made as minority, to listen to the United States division Brasfield v. Pope, ; 1969) States, 448, United 272 U.S. 47 S.Ct. Smith, United States v. 135, F.2d 166 (1926) ; L.Ed. 345 Burton v. 1965) ; Mangan v. Broderick United 283, Rope Company, and Bascom F.2d (1905) ; 49 L.Ed. 482 Cook v. Unit- regarded particularly aimed never be them. The im- pression judge, re- expedient. routine A before the minds was, effect, critically judge sorting it, appraise the that the to must considered urging particular set- stance obstructive and its use hazards yield. ting. them to fraught especially In the instant case did One situation inquire danger in how after a has been vote stood. exists Through judge, split. Much that fault of the the fore formed how may judges juries man’s this in fall short out unsolicited note revealed tell but, pres right subtle formation as I shall endeavor still exert threat and recognition show, significant of this variation is not sure them. determining applicability Court, Brasfield v. Bras Supreme fact the S. U.S. field. 135, 136, (1926), held L.Ed. 345 Ct. Only rarely courts considered inquiry not make delivering propriety of an Allen *13 jury. Mr. Justice to the division balloting jury’s status the after the Justice) (later noted that Chief Stone divulged voluntarily to the had been rarely resorted inquiry “can such an . judge. States, F. 153 Bowen v. United bringing to de in some bear to without denied, (8th 1946), 328 2d 747 cert. Cir. measurable, although gree, serious, 835, 980, cit 66 90 L.Ed. 1611 U.S. improper the an influence majority, ed the did hold that where every consider deliberations from whose judge jury’s apprised of bal the is the the evidence that of than ation other having inquiry, loting without made his expounded proper a in and the law as giving impropriety the there is no 10 charge, excluded.” should be exception charge.12 This form an would “improper influence” The Brasfield However, im the rule. the Brasfield alluded was Stone which Justice ap plications would seem Brasfield gave judge heightened an the trial when ply equally information was whether the making inquiry charge after promoted by judge’s inquiry was the judge’s jury’s The the division.11 pressure on the thrust him. spot- knowledge jury’s division jurors in minority the same in both is jurors. They minority were lighted the stances. judge knew that the made aware Burger, speaking Despite as a dissenting the Chief position. Justice their judge’s judge neutrality Appeals the for the superficial Court of charge Circuit, words, tendency was had occa District Columbia minority States, Mullin 123 U. feel sion in United v. make (1966), 29, S.App.D.C. were exhortations F.2d 356 368 observations (5th 1958); subject States, charge Cir. 11. ed The Allen was Co., specific Brasfield; & Dunkel v. Samuel discussion thus United States remand, appeal 506, significance presence 184 after F.2d of its in that 173 1949), denied, (2nd cert. F.2d 894 Cir. measure. There case difficult 491, 930, 95 L.Ed. 340 U.S. 71 S.Ct. difference of in- over whether (1951). quiry Brasfield, alone in 671 without charge, would re- have led to the same States, F.2d In Rhodes v. United 282 generally, Comment, sult. See In- On (4th denied, 912, Cir.), cert. 59 structing Juries, Deadlocked L.J. 78 Yale (1960), 81 S.Ct. 5 L.Ed.2d 226 100, 105, 25, 131, (1968). n. 132 Eutsler, Orthopedic Equipment v. Co. 276 upheld Accord, F.2d Cir. Sanders v. United charges, special Allen-type ; 1969) there were F.2d Cir. United States present Meyers, (2nd 1969) ; circumstances such as those F.2d 693 Rao, (2nd this case. States F.2d 1968). see, 10. Also Burton v. United U.S. 49 L.Ed. 482 vote had tion. This in which the is so even if a trial the instruction review includes, judge case, without instant been disclosed said, language boiler-plate bland He about solicitation. considering majority also wiews precarious un- have minority. generally The formula give sup- dertaking Judge used as “balancer” is insufficient here oth- plemental each to consider dissenting ju- because it does not relieve already ad- he er’s views when feeling judge rors of the only voted 4 of vised that goading agree upon them to a verdict. reasonably acquittal. as- He could gave such if he sume Ill knowing only had change votes, de- Aside from the persuaded undesirable effects flowing vigorously precise protest from disclosure fense counsel would division in the room appeal correct solu- there was in case, addition, aggra- seriously mistrial declare tion * * vating message circumstance. at 370.13 *. F.2d “get [ting] about over all those then, “pre- it, it a that makes What guilty” imperatively that vote not called undertaking” give judge to for a carious minority. for a clear. reassurance Allen-type has been he signaled The statement It is vote made aware how the stands? gives that without an instruction true that whenever a explicitly counteracting it, he is aware *14 judge’s jury a ver- consider the unable to reach silence the has been charge given. a tacit confirmation why the is the threat. It dict. That is judge judge was incumbent the the to restore It also true that is whenever panel’s charge jury neutrality the confidence in his the realizes resorts to the questioned jury which had For been the their deadlock. that he knows of that, suggested prompt room with sufficient force to its these reasons it has been mention in judge the note. told or not the has been whether room, supple- lineup in the the the gave judge the When the additional the have same mental instruction would charge “to a verdict” induce with no at- ju- minds of the effect on the tempt jurors’ minds, to the the disabuse disagree. respectfully When the rors. I may effect well have been The decisive. jurors judge the does not know how tailoring compounding error was in not voted, properly Al- and a balanced have existing charge the the to circumstances. charge delivered, jurors may len the Judges charges who find Allen otherwise readily accept en- to the it addressed might appropriate up- well hesitate panel. hold it here. tire language However, jurors the the absence of to offset when know jury room, precisely the how the in the it is rea- has been advised utterance 2— to infer that at least some of the are divided —in this case sonable perceived the situation as fol- the effect of an Allen is unavoid- ably (1) judge’s the add the influence to lows: the has been told the precise majority, the and he knows about side the and this is so re- division gardless for statement made room that a the initiative whether guilty verdict dis- from the or the would incur his disclosure came nothing yet jury. predicament minority ju- pleasure; (2) he has said In this neutrality; likely develop reply rors are to assure us of his but a sense of iso- (3) impor- impression they are he has stressed the lation and the instead reaching verdict; therefore, judge’s special object a atten- tance of of the Accord, U.S.App.D.C. Williams v. United logic this disfavor, The I ful to the defense. judge’s will to avoid compelling, reasoning it only jurors inclined than less guilty.14 Not vote jury’s affected, likely deadlock was is as likely but acquit to be were respect never in perhaps were Governor convict those inclined so, appellants. supplemental If their resolve. stiffened may impelled them well have court of this Like the other members possi- ais reasonable convict. If there ability regard highest for the I have the guilt bility that who doubted those pre- judge who and the fairness pushed defendant were reject trial, notion sided at the joining supplemental into sought any way coerce the that he majority, was of the trial the fairness However, plain one or jury. impaired. a doubt more of the entertained judge’s incriminating This should attitude. about evidence When gone supple- cogent judges, unnoticed not have is a to the there seems charge.15 answer temptation mental In a to condone trial errors. lecture jury’s however, jury trial, communication are the agree- attaining importance no constraint convinced and to be ones only one judgment This independent verdict. can ment and spo- question coin. Not word side as harmless. “[T]he condoned spelt guilt the attitude attributed out ken disavow is not whether guilt does record, has been him. The but whether significant as- grips according proce come to found case, colors the use appropriate pect of the dure and standards charge. courts.” the Allen in the federal criminal trials States, 326 U.S. Bollenbach support opinion finds prevailing 402, 406, 90 L.Ed. 350 shortly very in the fact (Frankfurter, J.). jury returned acquittal as to Governor its verdict I would reverse For these reasons charge may implies that appellants’ Barron. and award them convictions helpful harm- rather than well new trial. *15 Udall, dissenting experienced in his Justice An Voeckell, wrangle long 69 Ariz. State realized such (1949), a simi- established P.2d this case as occurred in room syllogism: frayed lar leave a state of wouid majority guilty; fatigued attention, think he is nerves and ought agree go escape overnight I the Court thinks home desire detention, particularly plain so the think Court of a in view guilty. he ought While the did tell Court from the verdict hint my forthcoming. me not to surrender conscientious convictions, me to he told doubt serious- In the instant case the knew that ly my judgment. correctness own jurors expressed go two a desire to home talking directly me, The Court was but nevertheless instructed the keeping every- I am since the one who is they “may leisurely [their] de- going just one from home. So I will requires; liberations the occasion change my have to vote. you you shall take all the time which feel Justice Udall’s dissent was later vindi- necessary.” sequest- had been cated when Arizona the Allen outlawed days nights. began ered for 18 and 17 charge. Thomas, supra, See State Friday its deliberations before Labor note 2. Day supplemental charge weekend and the situation, 15. In a somewhat different Mr. fifteen hours later. This could Justice Frankfurter stated in Bollenbach pressure have added to the on the 607, 612, two voters. 402, 405, (1946), 90 L.Ed. 350