Sumnar Brewster v. Gary Hetzel (11th Cir. January 2019)

Sixth Amendment/Ineffective Assistance of Counsel – Counsel’s failure to object or move for a mistrial constituted ineffective assistance of counsel where the court repeatedly coerced a holdout juror to return a verdict. In addition to issuing an Allencharge and three additional instructions to continue deliberating despite knowing that one juror refused to convict, the court removed all reading materials from the jury room after hearing the holdout juror was doing crossword puzzles during deliberations.

Sumnar Brewster was convicted after a jury trial on charges of armed robbery in an Alabama state court. Initially, the jury was split 9 to 3 in favor of conviction. Over two days of deliberations and repeated instructions from the judge to continue deliberating, the split was reduced to 11 to 1.

Throughout the course of the deliberations, the trial court issued an Allencharge and instructed the jury on three subsequent occasions to continue deliberating, even as the jurors continued to insist that they were completely deadlocked, like “really, really deadlocked.” At one point, the jury informed the court that the lone juror opposing conviction refused to continue discussing the case. In response, the court gave the jury a final, lengthy instruction that admonished them to take their oaths “seriously.”

After being told that the holdout juror still refused to continue deliberating and had begun playing crossword puzzles, the court ordered all of the reading materials taken out of the jury room. Eighteen minutes after these materials were removed, the jury returned a unanimous guilty verdict.

Brewster filed a § 2254 petition for habeas corpus in federal court arguing that he received ineffective assistance of counsel when his attorney failed to object or move for a mistrial based on the trial court’s coercive instructions.

The Eleventh Circuit reversed the district court’s denial of Brewster’s petition. The Court found that there was a valid claim that the jury had been improperly coerced into reaching a guilty verdict and that trial counsel was ineffective for failing to object or move for a mistrial.

This was not a case involving a simple Allen charge or supplemental jury instructions, the Court noted, but rather a “macro claim” of juror coercion based on the “totality of the circumstances,” including 1) the length of deliberations, 2) the number of times the jury reported being deadlocked and was instructed to resume deliberations, 3) whether the judge knew of the numerical split when he instructed the jury to continue deliberating, and 4) whether any of the instructions implied that a juror was violating their oath by failing to reach a verdict, and 5) the time between the final supplemental instruction and the verdict.

The Court concluded that the “cumulative effect” of the court’s actions coerced the jury into reaching a verdict. By repeatedly instructing the jury to continue deliberating, with the knowledge that there was only one juror holding out, the court essentially sent a message to the holdout to “stop being so stubborn and fall in line.” In removing the reading materials from the jury room to stop the juror from doing crossword puzzles, the court improperly commented on the juror’s deliberations.

The Court asserted that “an objection or motion for mistrial would not have been futile or lacking in merit” even if this particular trial judge may have been unlikely to grant it. Though the Court didn’t draw a bright line to determine when trial counsel should have objected, the Court noted that he had “plenty of time” over two days of deliberation and that the duty to object or move for a mistrial only became greater in the face of increasing coercion and as the jury moved closer to a guilty verdict.

Under these “extreme” circumstances, the Court held, trial counsel rendered ineffective assistance of counsel by failing to object or move for mistrial, and Brewster was prejudiced by trial counsel’s deficient performance.

Appeal from the Northern District of Alabama

Opinion by E. Carnes, joined by Branch and Fay

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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