An El Paso County judge improperly told a deadlocked jury to continue deliberating without analyzing whether the instruction might coerce them into a verdict, the Court of Appeals ruled on Thursday.

“In sum, when faced with a jury question that indicates the possibility of an impasse, a trial court cannot simply tell the jury to continue deliberating,” wrote Judge Neeti Vasant Pawar for the three-member panel in reversing all of the defendant’s convictions.

Fountain police found Latrice Monique Black asleep in her vehicle outside of a Walmart. Nearby were two small, empty whiskey bottles. The first officer to arrive physically and audibly roused her, and after several minutes awake Black was able to converse with police and paramedics.

While the first responders attended to Black, another officer reviewed the store’s surveillance tapes, which showed Black pulling her car into the parking lot an hour prior and not leaving the vehicle. The officer told his colleagues that they should arrest her for driving under the influence.

Black yelled that she had not driven anywhere and had committed no crime as officers removed her from the car. 

Getting her into the patrol car, one officer struck her leg to prompt her to put it all the way in the vehicle, and Black scratched another officer’s arm with her fingernail leaving a “very faint mark.” El Paso County prosecutors charged her with DUI, resisting arrest and — for the scratch — second degree assault on a peace officer.

After approximately one day’s deliberation, the jury sent a question to the court: “What happens if we can’t come to a unanimous decision on only one charge?”

District Judge David A. Gilbert indicated that he was “not all that clear on this,” and “we don’t know what they mean by the question.” Nonetheless, he did not believe the jury was indicating they were at an impasse and told them: “please continue with your deliberations at this time.”

A half hour later, the jury convicted Black on all counts, but returned a guilty verdict on a lesser offense of third degree assault. For the assault conviction, Black received two years and one day in jail with work release.

The 1896 U.S. Supreme Court case of Allen v. United States established the permissibility of a judge instructing a deadlocked jury to keep deliberating. One version of the Allen instruction asks jurors who are committed to guilt to reassess “if the evidence is really convincing enough,” and likewise requests jurors leaning toward acquittal to “ask yourselves if the doubt you have is a reasonable one.”

Some states, however, do not allow Allen instructions because they are deemed coercive, putting pressure on the jurors in the minority to change their minds. In the appeals court’s opinion, Pawar indicated that the level of coercion is dependent on context, and the Colorado Supreme Court has not issued a blanket rule.

“If it is early in deliberations and the jury is making progress towards a verdict, an instruction to continue deliberating, even an unqualified one, carries little coercive risk,” she wrote. “That same instruction, however, given to a jury that has been deliberating for longer and is making little or no progress towards a verdict, carries significant coercive risk.”

In other words, “the coercive risk attached to any instruction to continue deliberating increases with the intractability and duration of the jury’s impasse,” Pawar summarized.

The court emphasized that trial judges may not give jurors an instruction that would incite them to surrender their “conscientious convictions” for the sake of unanimity. However, the judge in Black’s case did not inquire about the nature of the deadlock, and whether it was hypothetical or truly reflected a lack of progress.

“The best we can do is say that, based on the jury’s question, progress towards a verdict may have been unlikely or impossible (though the latter is less plausible),” Pawar wrote. “If either was true, the court’s unqualified instruction to continue deliberating was coercive.”

While the appellate panel did not determine conclusively that Gilbert’s instruction was coercive, they also could not say it had zero effect on Black’s convictions. Because there was no indication which charge caused the impasse, the panel elected to reverse all of Black’s convictions.

Although Black also argued there was insufficient evidence to prosecute her for the assault charge, the court agreed that she may be retried for that offense because officer testimony and photographs indicated bodily injury.

The case is People v. Black.