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Appeals court orders new trial for defendant in reservation assault case

WASHINGTON – A federal court Tuesday ordered a new trial for a Parker, Ariz., man accused of assaulting and seriously injuring his girlfriend at their home on the Colorado River Indian Tribes reservation in 2008.

The 9th U.S. Circuit Court of Appeals said attorneys in Calvin Evanston’s case should not have been allowed make additional arguments to a deadlocked jury that had twice been admonished by the judge to reach a verdict.

A three-judge panel of the court called that a “particularly egregious” abuse of the trial judge’s discretion to manage deliberations.

“If the jury hangs, it hangs,” said Natman Schaye, an attorney with the Arizona Capital Representation Project. “Coercing people into reaching agreement is not going to get you fair results.”

The case began Aug. 11, 2008, when Evanston’s live-in girlfriend was found severely injured.

Evanston initially told investigators that he came home to find her lying on the bed and covered in blood. He later said he came home and found a man leaving the house and his girlfriend partially undressed. Thinking she was cheating on him, he said he slapped her, causing her to fall and hit her face on a nightstand.

But the girlfriend testified at trial that no other man had been in the house before or during the assault. She said Evanston choked her and hit her, and that she didn’t remember anything between the time he first hit her and when she woke up in the hospital.

She was flown from La Paz County Hospital to Banner Good Samaritan Hospital in Phoenix where she was treated for several facial fractures that required plates and screws to repair. Her injuries impaired her balance, and she still suffers from nerve damage, according to court documents.

After a two-and-a-half-day trial in January 2010, the jury deliberated for five hours over two days before declaring a deadlock. U.S. District Judge G. Murray Snow gave the jury what is known as an Allen charge, instructing them to continue deliberating.

When jurors were still deadlocked after three more hours, Snow asked them what points were causing the impasse and — over the defense’s objections — gave both sides time to make additional arguments about witness credibility and how the victim’s injuries were caused.

The jury deliberated for two more hours before convicting Evanston of aggravated assault.

Evanston appealed, arguing that Snow’s use of the Allen charge encroached upon the jury’s role as the sole fact-finder in the trial.

The appeals court agreed, saying Snow’s actions violated the jury’s “deliberative secrecy,” and that pressing on after a second deadlock raised “the specter of jury coercion.”

Allowing supplemental arguments after evidence is closed and the prosecution rests its case “effectively allows the government a second bite at the guilty verdict apple,” Circuit Judge Michael Hawkins wrote in the appellate opinion.

Because the assault occurred on an Indian reservation, Evanston was tried in federal court; had he been tried in state court, the supplemental arguments might not have been an issue.

Arizona is one of three states that allow supplemental arguments to clear up questions jurors have before they begin deliberations in state-court cases. The rules were adopted after the state supreme court banned Allen charges.

What is an Allen charge?

Also called a “dynamite charge” because they can “blast” a verdict out of deadlocked juries, an Allen charge is the instruction judges give before asking juries to continue deliberations. The 9th Circuit recommends the following script:

“Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

“As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

“All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

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