The Allen charge not only invades the province of a thoughtful jury; it is an archaic reminder of the oppressiveness of the British judicial system that the American colonists fought to escape. William Penn, the Quaker leader who went on to found Pennsylvania, was subjected to a progenitor version of the charge when the court admonished a deadlocked jury, trying him for convening an unlawful worship service in England, to return “a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco . . . . We will have a verdict by the help of God or you shall starve.” “The Trial of William Penn,” 6 Howell’s State Trials 951, 963 (1670). Penn rightfully retorted: “My jury, who are my judges, ought not to be thus menaced; their verdict should be free and not compelled; the bench ought to wait upon them, but not forestall them.” Id. Indeed, the coercion continued after Penn’s acquittal, when the foreman of his jury, Edward Bushell, was tried for refusing to return a verdict that the court would accept. See Bushell’s Case (1670), 124 Eng. Rep. 1006.
The Tenth Circuit’s modified Allen instruction directs that trial judges include the “substance of [the charge] in the court’s original set of jury instructions.” Hence, when our jury reported it was deadlocked, jurors already had been subjected to a degree of coercion. The original jury instructions contained the proclamation that “this is an important case.” It then continued dissembling by informing the jury that another trial would cause “another large investment of time and effort.” I, of course, objected to the instruction on several grounds (while musing that the trial judge was dishonoring the jury’s conclusion that they were deadlocked by disbelieving them). After announcing its deadlock, the jury was subjected to the Allen instruction, which misinformed them that “if you should fail to agree upon a verdict, the case is left open and must be tried again.”
I predicted to my young associate that if they remained at impasse, the judge would simply give the instruction again. She did that the next day. Not surprisingly, the jury returned a guilty verdict, notwithstanding that it was apparent from their jury notes to the judge that certain members of the jury wanted to acquit the defendant. The Allen instruction, I concluded, depleted their resolve and cast them as delinquents. It unfairly scolds the jurors into believing that remaining deadlocked constitutes a failure on their part. Inferentially, it strongly encourages them to conclude that the only way they can succeed is to reach a verdict.
This is not quite the same thing as literally starving jurors into submission. But somewhere from the grave, William Penn must be decrying this judicial tyranny.