Some cases get appealed and when the appellate court renders an opinion, you feel like you’re reading a computer programming textbook. It’s dry, uninteresting, and just new data in an old formula. However, this was not the case when the 11th Circuit Court of Appeals released Brewster v. Florida Attorney General on Tuesday.
You see, Brewster was being prosecuted for some crime … it doesn’t matter what crime for now. The jury was hung, so the Prosecutor moved for an Allen verdict. Brewster’s attorney didn’t resist and Brewster was convicted. The Alabama Supreme Court upheld the conviction, but in historically flowery rhetoric, the 11th Circuit Court of Appeals reversed and held that Brewster attorney had done such a terrible job, that Brewsters conviction should be overturned.
In perhaps the most interesting opening that I’ve ever read, the court starts with the phrase, “In olden days … ”
In olden days a number of methods were used to ensure that juries reached a unanimous verdict. From the fourteenth through the eighteenth centuries, one “method of accelerating unanimity” was to prohibit jurors from eating or drinking until they all agreed on a verdict. 3 William Blackstone, Commentaries *375. And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.
In one seventeenth-century sedition trial (involving William Penn and a co- defendant), the jury deadlocked on the most serious charge. George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge responded by threatening to have a juror named Bushel branded unless the jury agreed that the defendants were guilty as charged. Id. at 899. When no verdict was forthcoming, the judge did not send for a branding iron, but he did have all the jurors “locked in the jury room without meat, drink, fire, and tobacco” until they could agree. Id. (quotation marks omitted). After nicotine withdrawal and the prospect of starvation failed to work, “the judge threatened to cut Bushel’s throat” if there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a deadlocked jury.) When even that threat did not bring forth a unanimous verdict, the judge gave up. Id. Bushel escaped the experience unbranded and with his throat intact, while the jury as a whole escaped with its disagreement intact. But the judge was angry enough at the jurors’ failure to agree that he fined each of them forty marks for their intransigence. Id. Fortunately, when the case made it to the Court of Common Pleas the fines were set aside. Id. at 899–900. History does not record if Bushel or any of the eleven other brave souls ever served on another jury.
Since those days, we have come a long way and now accept that some jury deliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987) (“The jury trial system has not malfunctioned when the jury cannot reach a verdict. One of the safeguards against the conviction of innocent persons built into our criminal justice system is that a jury may not be able to reach a unanimous verdict.”). We no longer try to coerce holdout jurors to reach a verdict that they cannot abide. Or at least most of the time we don’t.
The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with juries of yesteryear.
About the Author, Samuel J. McLure, Esq.
Sam graduated from Huntington College in 2006 with a degree in Business Administration. Before transferring to Huntington College, he attended Bethune-Cookman University as the first minority-white running back in the historically black conference.
He went on to Jones School of Law and graduated with honors, cum laude. During law school, Sam had the distinguished honor of serving with the Faulkner Law Review, clerking with Supreme Court Justice Patricia Smith, clerking with the Attorney General’s Office, and studying International Law with Cornell University in Paris, France.
However, Sam’s most memorable law school achievement was adopting his first child from the Hungarian foster-care system. It was through that process that he and his wife saw the great need to protect children in the foster care system and to encourage adoption.
Sam’s law practice has maintained an orbit around protecting vulnerable and at-risk children. He and his wife have four children and have been actively engaged in the foster care system. Sam is the author of The End of Orphan Care, and book devoted to unpacking the orthodoxy and orthopraxy of orphan care; and has founded or served with ministries and community outreach initiatives such as Kiwanis, Personhood Alabama, Proposal 16, and Sav-a-Life.