A man convicted of second-degree murder in a 2005 shooting will get a new trial after the District of Columbia Court of Appeals ruled today that the trial judge gave an "impermissibly coercive" instruction to the jury.
After a jury told District of Columbia Superior Court Judge Michael Rankin they couldn't reach a decision, the judge gave an instruction that crossed the line from communicating his desire for a verdict to making it seem as though the jury had to reach a verdict, the appeals court said.
Because coercion was "probable," Judge Stephen Glickman wrote for the panel, "we are unable to 'say with assurance that the jury arrived at its verdict freely and fairly.'"
Christine Monta of the Public Defender Service of the District of Columbia argued for Fortune; a representative couldn’t be reached for comment. A spokesman for the U.S. attorney's office, William Miller, declined to comment. Assistant U.S. Attorney Leslie Ann Gerardo argued the case.
The defendant, Delonte Fortune, was charged in the fatal shooting of Lamont Watkins in August 2005. According to today's opinion, there was no physical evidence at trial linking Fortune to the shooting. Instead, the government relied on witnesses, including one man who said he saw the shooting. Fortune's lawyer argued the witness didn't see the shooting and had pointed the finger at Fortune based on neighborhood rumors.
Several hours after beginning deliberation, the jury started sending notes saying they couldn't reach a decision. After the third note, the judge denied a request by Fortune' s lawyer to declare a mistrial, instead telling the jury, according to today's opinion: "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 a decision." He told the jury to keep deliberating.
The jury found Fortune not guilty of first-degree murder and guilty of second-degree murder. After the verdict, Rankin decided to ask jurors if they felt his instruction coerced them into reaching a verdict, and two responded that they did. He declared a mistrial, but reversed his decision after the government asked him to reconsider. Rankin found he didn't have authority to poll the jury after the fact.
On appeal, Fortune's lawyer argued the appeals court could take the jurors' response into consideration because Rankin's decision to poll them didn't "intrude into the jury's deliberative process." The appellate judges disagreed.
A judge's discretion to take a poll of jurors "is not limitless," Glickman wrote. He noted that "the policy reasons forbidding the court from delving into the jurors' minds to explore the validity of their verdict" apply at all stages of a trial, including post-verdict.
"[W]hen a judge has determined from the surrounding circumstances that there is a substantial risk of a coerced verdict, inquiry into the jurors' thought processes is unnecessary," he wrote. "The verdict cannot stand, and the judge must declare a mistrial without further ado."
Even ignoring the jurors' answers, however, the appeals court found Rankin's instruction veered too far from the "neutral" instruction typically given to jurors who say they're deadlocked to continue deliberating. "[W]e think the judge pointedly (if unintentionally) conveyed the message that he personally wanted and expected a verdict and that the jurors would have to continue deliberating indefinitely until they had one," Glickman wrote.
Fortune will get a new trial on the second-degree murder charge. He won't stand trial for first-degree murder because the jury acquitted him of that charge.
Judge Kathryn Oberly and Senior Judge William Pryor also heard the case.