Brian Parker v. Larry Small

BACKGROUND

At the close of Parker’s six weeks trial, the jury was instructed on the law and on its role, and began deliberating. The following rendition of the jury’s deliberation is drawn from the California Court of Appeal’s decision:

On the third day of deliberations, the jury sent a note to the court stating, “We can’t come to a decision.” The court inquired as to whether the jury had agreed to any of the counts, to which the jury responded, “no.” The court returned a note to the jury which read, “Given the complexity and length of this trial- I believe that you should continue your deliberations to see if progress can be made in reaching a deci- sion.” Later that day, the jury sent the court another note, which read, “Regretfully, we all agree that we 21220 PARKER v. SMALL will not be able to come to a unanimous decision.” The court responded, “It does not appear that you have had time to fully and frankly consider the evi- dence with open minds and fully and frankly interact with each other to try and reach verdicts. [¶ ] This is the process in which you are required by law to engage. If there is something further that the court can do to assist you,…

concurring:

Under the circumstances presented by this case, I join my colleagues in affirming the district court’s denial of Parker’s petition for habeas corpus. I write separately only to emphasize that the supplemental jury instruction issued in this case could have an unconstitutionally coercive effect in other contexts, even under the deferential standard of review imposed by AED- *1150 PA. Federal habeas review of the Moore instruction in future cases, as in this one, will rest on evaluation of the instruction “in its context and under all the circumstances.” Lowenfield v. Phelps, 484 U.S. 231, 237 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988) (quoting Jenkins v. United States, 380 U.S. 445, 446 , 85 S.Ct. 1059 , 13 L.Ed.2d 957 (1965) (per curium)) (internal quotation marks omitted).

PER CURIAM Opinion; Concurrence by Judge THOMAS.

OPINION

The right of an accused to have his case heard before a jury of his peers is a hallmark of our criminal justice system. The jury’s verdict is of paramount importance in concluding the accused’s case. Accordingly, the Supreme Court has permitted trial judges to give extra instructions to deadlocked juries in the hope of encouraging, but not coercing, a jury verdict. See Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896); Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988); Early v. Packer, 537 U.S. 3 , 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002) (per curiam). This case reaches us on a Certificate of Appealability granted by the United States District Court for the Northern District of California on the issue of whether the California Court of Appeal acted contrary to clearly established federal law as determined by the Supreme Court of the United States when it held that the supplemental jury charge given at petitioner’s trial was not coercive.

The petitioner, Brian Lee Parker, was convicted in the Superior Court of San Mateo County, California, of murder and other aggravating…