Two men convicted of armed robbery in 2019 in D.C. are getting a new trial because a judge failed to consider a juror may have felt coerced to reach a verdict due to an impending, long-planned backpacking trip.
The District of Columbia Court of Appeals has thrown out the convictions of Calvin Abney and Shawne Proctor, saying Superior Court Judge Marisa Demeo’s handling of concerns expressed by a juror about upcoming travel plans may have contributed to the guilty verdicts.
Abney and Proctor were on trial for armed robbery and other counts for attempting to steal money from drug dealers.
The trial took longer than expected. On Dec. 29, 2018, the day after prosecutors rested their case, Juror 7 sent a note to the judge, saying he had long-standing plans to be in California from Jan. 7 through Jan. 16.
“The defense moved to replace Juror 7 with an alternate, because Juror 7 might get anxious if deliberations ran long,” according to the three-judge appeals panel’s ruling, issued on Thursday.
“The trial judge informed Juror 7 that the note had been received and that Juror 7 would continue to serve as a juror,” according to the ruling. “The trial court denied the motion, predicting that the jury would have enough time to deliberate before Juror 7 had to leave for his trip.”
However, the trial continued at a slower pace than anticipated, and the jury began deliberating Jan. 2, 2019. With jurors out of the room, on Jan. 3, the defense expressed concern about Juror 7’s travel plans, given that the next day was the last day of deliberations before Juror 7 was planning to depart.
“The next morning, Juror 7, who was the foreperson, sent the trial court a note asking whether the jury had to be unanimous on all counts before returning a verdict,” according to the panel. “The defense again argued that Juror 7 should be replaced with an alternate because of the pressure Juror 7 might be feeling to render a speedy verdict to avoid missing his trip.”
Again the judge declined, stating she could only excuse a juror after deliberations had begun only when extraordinary circumstances and just cause were present — the judge concluded Juror 7’s travel plans didn’t meet that standard.
Later that afternoon, Juror 7 sent two other notes to the judge. The first stated:
Your Honor, As mentioned in a juror’s note last week I cannot be in
court on Monday. I have a 2 p.m. flight to California and am scheduled
to be out of town until January 17. My presence is especially required
as I am meeting my brother to do a backpacking trip in the desert and I
have supplies that he needs and is relying on. Additionally, I do not
feel that, insofar as I have the power to decide, that I can let him enter
the desert for 6 days on his own. He is my brother. I am very sorry for
this inconvenience but the trip has been planned for [approximately] 6
The second note, which was sent 13 minutes later, stated the jury had reached a unanimous verdict on five counts. The defense requested Juror 7 be replaced, or at least questioned about whether the impending trip was affecting the juror’s ability to decide fairly — again, the judge declined.
On the morning of Monday, Jan. 7, the jury found Abney and Proctor not guilty on two of the remaining four counts.
“The trial court then gave the jury an anti-deadlock instruction and sent the jury back for further deliberations on the two remaining counts,” wrote the panel. “Around 1 p.m., about an hour before
Juror 7 had been scheduled to leave on his trip, the jury found Mr. Abney and Mr. Proctor both guilty on the last two counts.”
Abney and Proctor argued the judge’s failure to address Juror 7’s concerns about the upcoming trip put undue pressure on the jury to convict their clients. The appeals court agreed.
The appeals panel said when a defendant exercises the right to a jury trial, “the jury’s verdict will have legitimacy only if it is the product of unanimous decision making, devoid of coercion.” And, while providing some deference to the trial judge’s on-the-spot perception, the panel determined there was “substantial risk of juror coercion in this case.”
“The trial court’s response to Juror 7’s first note was simply to indicate that the note had been received and, without explanation, to require Juror 7 to continue to sit,” wrote the panel. They added the lack of guidance from the judge exacerbated the risk of coercion, by seeming to leave the juror with no alternative.
The panel disagreed with prosecutors’ argument that the juror’s polite responses to the judge’s order to continue deliberating was an indication that Juror 7 wasn’t feeling unduly pressured.
“We place little weight on that circumstance, however, given that jurors may well feel reluctant to express disagreement in response to a judge’s ruling,” according to the ruling.
The panel concluded since a substantial risk of juror coercion wasn’t effectively address, it’s likely Juror 7 felt pressured.to reach a decision: “We therefore vacate all of the convictions and remand the case to the Superior Court.”
A spokesman for the U.S. Attorney’s Office for D.C. said the office is still reviewing the decision and has yet to make a decision about retrying the case.