What Effect Does the Judge Knowing the Jury Alignment Have on the Allen Charge in the Michael Slager Trial?

I’ve gotten a lot of questions about whether Michael Slager might have grounds for appeal if he is convicted of murdering Walter Scott, given that the judge gave an Allen charge while knowing that the jury was 11-1 in favor of conviction. The answer is “maybe.”

The Court of Appeals of South Carolina noted in State v. Williams, 543 S.E.2d 260, 265-66 (S.C.App. 2001), that

it is not necessarily coercive to give an Allen charge even though the jury reports it is deadlocked eleven to one. See State v. Jones, 320 S.C. 555, 558-59, 466 S.E.2d 733, 734-35 (Ct.App.1996) (concluding the trial court gave a proper Allen charge even though the jury sent a note stating it was “hung 11 to 1” because the charge, taken as a whole, was not coercive).

In Jones, Michael Jones was charged with first degree burglary, kidnapping, and armed robbery. At trial,

Jones presented an alibi defense. All of the alibi witnesses testified Jones spent the evening with them at his ex-girlfriend’s home, eating spaghetti and making a rap demo tape. Jones alleged he then went to bed for the night, and did not leave until the following morning.

After the jury began deliberating, they sent the judge a note stating:

We are hung 11 to 1 and starving. May we go to lunch and think things through. We also need to calm down so may we walk to Main? Thanks.

After the jury returned from lunch, the judge gave an Allen charge. Here’s the court’s discussion of the charge:

The objectionable portions of the charge urged dissenting jurors to consider whether their positions were reasonable in light of the judgment of the majority. Jones argues the charge was unduly coercive because the trial judge knew the numerical alignment of the jury. However, nothing in the record indicates the judge knew how the jury was aligned concerning guilt or innocence. Furthermore, the judge also told the jury, as part of the Allen charge, that “the verdict to which a juror agrees must, of course, be his or her own verdict, the result of his or her own convictions, and not a mere acquiescence in the conclusion of his or her fellow jurors.” We have carefully reviewed the entire charge and, taken as a whole, do not find it coercive (emphasis added).

Obviously, the difference in the Michael Slager trial is that the judge knows how the jury is aligned concerning guilt or innocence, with 11 in favor of a guilty verdict and 1 juror indicating that he can’t in good conscience find Slager guilty. But is this a material difference that would allow for appeal? We’ll have to see.

-CM