A Boulder County judge potentially coerced jurors into a verdict when she directed them to keep deliberating even though they were at an impasse, Colorado’s second-highest court ruled last month.

When a jury indicates it is deadlocked, judges may advise jurors, in what is known as a “modified-Allen” instruction, to “reexamine your own views” and possibly change their vote. But jurors should not “surrender your honest conviction” simply to reach a verdict or to go along with the others on the jury.

Crucially, however, judges must first determine whether the jury actually appears likely to reach a unanimous decision, so as to ensure the modified-Allen instruction does not push holdout jurors into a “compromise verdict.” A three-judge panel of the Court of Appeals determined then-District Court Judge Judith L. LaBuda neglected to take that step before she told jurors to keep deliberating, and that error required a new trial for defendant Omar Mosaab Abughalib.

“If a jury is truly deadlocked, an edict from the bench to reach agreement has the potential to produce a verdict that is based not solely on the evidence but on the pressure a wavering juror might feel to reach a unanimous verdict,” wrote Judge Timothy J. Schutz in the panel’s April 27 opinion. “That juror – or jurors – could feel marginalized by the court: essentially, a direction to continue deliberating when the jury is deadlocked communicates to a holdout that their sincere conscientious concerns matter less than a unanimous verdict.”

Abughalib stood trial in 2019 on nine counts related to assault and sexual assault. Ultimately, the jury convicted him of five offenses against two women and acquitted him of the rest. Abughalib’s defense was that the encounters were consensual. LaBuda sentenced him to 16 years to life in prison and 20 years to life of sex offender probation.

During the third day of deliberations, after jurors had been discussing the case for 20 hours, they sent a note to LaBuda indicating they reached an impasse. The prosecutor requested that the judge bring the jury out and ask “whether further discussions would be fruitful.” Then LaBuda could give the modified-Allen instruction. The defense agreed.

“The Court intends to bring the jury in and read them the modified-Allen instruction. That’s all I intend to do,” LaBuda replied. A few hours later, the jury rendered its verdict.

On appeal, Abughalib argued LaBuda was required to find out whether progress toward a verdict was possible. If it was not, the defense would have requested a mistrial.

“And regardless,” wrote public defender Elizabeth Griffin, “a mistrial would’ve been required since forcing a hopelessly deadlocked jury to continue deliberating – no matter the instruction – may unconstitutionally coerce a compromise.”

The government disagreed, pointing to the split verdict as a sign the jurors properly weighed the evidence.

The Court of Appeals panel rejected that interpretation of the facts. The purpose of the modified-Allen instruction, Schutz explained, is to balance the need for a unanimous verdict with the “sanctity of the jury’s deliberations.” The instruction is not necessary if a judge determines deliberations are actually headed toward a verdict, nor is it needed if there is a clear deadlock resulting in a mistrial.

Only when a judge believes deliberations might produce a verdict should they deliver the instruction, Schutz noted.

“The existence of a split verdict,” he wrote, “is just as readily interpreted as evidence the jury was hopelessly deadlocked, and one or more jurors ended up compromising their conscientious determination of innocence out of building pressure to compromise that was stoked by the modified-Allen instruction.”

Due to the risk of coercion, the appellate panel ordered a new trial.

The case is People v. Abughalib.