Smith v. Lockyer, 9th Circuit, Case #: 07-16876, Opinion dated 9/9/09:
Case Holding: A supplemental instruction to the deadlocked jury, addressing concerns of a hold-out juror (concerns which are known to the judge) is considered a denial of defendant's Sixth Amendment right.
Facts: Smith and co-defendant were charged with burglary, robbery, and forced oral copulation. At trial, the prosecution introduced DNA evidence linking Smith to the oral copulation charge. After deliberating, the jury told the judge two times that it was deadlocked on this charge and the judge gave an “ Allen ” instruction, directing the jury to return to its deliberations. On the fifth day, one of the jurors wrote the judge a specific note in which the juror expressed his concerns with the DNA evidence and explained that in light of his concern, he could not vote for conviction. Over the strenuous objection of the defense, the judge then instructed the jury to consider other specific evidence that it believed supported a guilty verdict and summarized this evidence in a non-neutral manner. The jury returned a guilty verdict approximately an hour later. The federal court ruled that the judge's comments were coercive, to the extent that defendant was denied his Sixth Amendment jury trial right and that the ruling of the state court on this issue violated clearly established federal law.