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Murder conviction reversed for coercive judicial response to deadlocked jury

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One of the most basic tenets of criminal jury trials is that judges may not coerce deadlocked juries to reverse their deadlock. Delonte Fortune’s trial judge disregarded that tenet, and last week the D.C. Court of Appeals granted him a retrial on his second degree murder conviction as a result. Fortune v. U.S. , ___ A.3d ___ (D.C., May 2, 2013).

Mr. Fortune’s jury announced its unyielding fifty-fifty deadlock eight hours into deliberations. In response to the jury’s foregoing announcement, the trial judge:

told the jurors he did not agree with them and that it was his “job to make that kind of decision.” With that, the judge sent the jurors back for further deliberations, telling them not to reveal how they were voting “until after [they had] reached [a] unanimous verdict.” Appellant objected that the judge’s remarks had been unduly coercive. When the jurors resumed deliberations, it took them only 93 minutes to notify the court they had a verdict–one acquitting appellant of first-degree murder but finding him guilty of the lesser-included offense of second-degree  murder.


The D.C. Court of Appeals reversed Mr. Fortune’s conviction due to such a blatantly coercive judicial response to a deadlocked jury coupled with the relatively quick unanimous verdice reached 93 minutes after the judge’s coercive response and the juries’ previous multiple hours of deliberations.

As to the utility of proving coercion of deadlocked jurors by hearing from the jurors after the polled return of a guilty verdict, the Court of Appeals declined to do so, even though two jurors told the trial judge they did feel coerced by his response to the jury’s deadlock note, when he asked the jurors, immediately post-verdict, whether any had felt so coerced. Fortune says that such questions go to proceedings in the jury deliberation room, and thus are not to be considered in analyzing the judge’s response to the deadlocked jury. Interestingly, the trial judge actually granted a mistrial, at first, after two jurors confirmed feeling coerced by the trial judge, but reversed his mistrial order two weeks ago after the prosecution filed a motion to do so.