Following a two-day trial, a District of Columbia Superior Court jury began deliberating Feb. 25, 2009 on whether Delonte Fortune was guilty in the August 2005 fatal shooting of Lamont Watkins. Over the next few days, they sent three notes to Judge Michael Rankin, all explaining that they could not reach a unanimous verdict.
Rankin's reply to their third note is at the heart of Fortune's appeal of his murder conviction. Although the jury eventually found Fortune guilty of second-degree murder, Fortune's attorneys have argued that Rankin's third note was coercive - two jurors told the judge they felt coerced into reaching a unanimous verdict, according to briefs - and warrants a new trial.
A three-judge appellate panel heard oral arguments in the case yesterday.
In response to the jury’s third note indicating they were evenly split, Rankin, according to the briefs, replied: “I hate to make myself the odd person out, but I don’t agree with the jury, and it’s my job to make that kind of decision.” He then thanked the jury for their time and efforts and instructed them to return the following day.
After the jury came back with the guilty verdict, Rankin then asked each juror whether they had felt coerced by his note. Two jurors replied in the affirmative. Rankin initially declared a mistrial, but later granted the government’s motion for reconsideration and entered the verdict on the record.
Fortune’s attorney, Christine Monta of the D.C. Public Defender Service, told the court that Rankin “never communicated once that while a verdict is desirable, it should not come at the expense of their conscience.”
Monta said the court couldn’t ignore that two jurors told Rankin they felt coerced by his reply into reaching a unanimous verdict, although it wasn’t made clear how it influenced their respective positions on the case. This was clear proof that Fortune’s constitutional rights had been violated, she said.
Assistant U.S. Attorney Leslie Ann Gerardo said Rankin didn’t abuse his discretion in issuing his reply. The risk of coercion is highest when there’s a minority dissent among a jury, not when the jury is evenly split, she argued, and Rankin was only trying to get the jury to continue deliberating.
Judge Kathryn Oberly asked whether Rankin had told the jury that they should be careful to preserve their own personal conscience. Gerardo said the judge didn’t in his third note, but that the court should focus on the statements Rankin did make, not those he didn’t. The proper inference of his note, she said, was that he wanted the jury to “go back and keep working.”
Judge Stephen Glickman said that while it was acceptable for a judge to ask a jury to continue deliberating, he thought that the “curtness” of Rankin’s responses made this case unusual. The case also led to a broader discussion between the judges and counsel about what judges can and can’t say to a jury when they’ve returned a verdict.
Glickman asked Monta whether she thought a judge asking about coercion was an intrusion into the jury’s deliberative process. Monta said she agreed with Glickman that this line of questioning could be “dicey,” because a judge asking about coercion could itself be coercive, leading the jurors to think the court had concerns. However, she urged the court to base its decision based on what Rankin did and the effect it had, not on whether it was acceptable for Rankin to have asked the jurors about coercion.
Senior Judge William Pryor also heard the case.