John Galt says: December 2, 2016 at 5:08 pm
http://www.judicial.state.sc.us/opinion ... seNo=25332“failing to instruct the jury to omit from its future communication any reference to the nature of its division”
Inquiry into the jury’s numerical division.
Petitioner’s jury informed the trial judge of their numerical split, as well as their alignment, on the first evening. Not only did the judge fail to inform the attorneys of the note’s contents, he failed to instruct the jurors not to disclose their division in the future. Cf. State v. Middleton, 218 S.C. 452, 63 S.E.2d 163 (1951) (improper for judge to require the jury to publicly reveal the nature or extent of their division).
While the trial judge did not engage in polling the jury as to its division, a practice condemned in Lowenfield, supra and in Brasfield v. United States, 272 U.S. 448 (1926), he did not act to prevent the jury’s self-reporting. In Brasfield, the Court held that “the inquiry into the jury’s numerical division necessitated reversal because it was generally coercive and always brought to bear ‘in some degree, serious although not measurable, an improper influence on the jury.'” Lowenfield, supra (internal citation omitted). The Lowenfield Court noted Brasfield was not a constitutional decision but rather a “supervisory powers”case. None-the-less, knowledge of the jury’s numerical division combined with knowledge of its decisional disagreement, followed by an Allen charge directed, at least in part, to minority jurors, is impermissibly coercive. Lowenfield, supra.
Petitioner and his attorneys were denied a meaningful opportunity to protect petitioner’s rights. The judge did not disclose the contents of the jury’s first note, which revealed a 10-2 deadlock in favor of the death penalty, but rather told the attorneys only that the jury wished to rehear some testimony. When the jury sent a note the next day, the judge did inform the attorneys that the jury was divided 11-1, but again did not reveal that the jury was in favor of death, nor that the foreman had used the term “hopelessly deadlocked,” nor that he had written “I do not feel we will ever get an unanimous verdict.”
We find the combination of withholding pertinent information from the parties, thereby depriving them of the facts necessary to make informed decisions; failing to instruct the jury to omit from its future communication any reference to the nature of its division; and giving an unconstitutionally coercive Allen charge, with its emphasis on a collective result, shocking to the universal sense of justice. We emphasize that it is the combination of factors, in the setting, which compel us to grant petitioner a writ of habeas corpus and to order a new sentencing proceeding.