A man convicted of murder in Greenville County has been granted a new trial because the South Carolina Court of Appeals found that an instruction given to the jury during his first trial impermissibly coerced it into reaching a verdict.

Billy Taylor was tried for murder, two counts of attempted murder, and a weapons charge in 2016. After deliberating for more than seven hours, the jury informed Greenville County Circuit Court Judge Robin B. Stilwell that it was at an impasse and about how it had voted on each charge.

Stilwell issued an Allen charge, in which a judge orders a jury to reconsider rather than declaring a mistrial, and ordered the jury back for more deliberations. A few hours later the jury returned a guilty verdict on all charges.

On June 12, the Court of Appeals unanimously reversed the conviction, finding that Stilwell’s Allen charge impermissibly coerced the jury into reaching a verdict.

Judge D. Garrison Hill, writing for the court’s panel, noted that Allen charges are sometimes called the “dynamite” charge because of its ability to blast a verdict out of a jury otherwise unable to agree, but said that the sobriquet could just as well describe its “success in blowing up otherwise error-free trials by introducing volatile elements into the fluid and emotionally charged atmosphere prolonged jury deliberations often create. Like dynamite, the charge must be handled with extreme care.”

Hill found that the dynamite in Taylor’s case was handled poorly, for several reasons. Stilwell had told jurors that “it’s important that you come to a decision in this case,” and “you should come to a decision in this matter” rather than properly advising them that they should attempt to come to a decision, but were not obligated to do so.

Stilwell’s charge also impermissibly overemphasized the cost and expense of a retrial, telling jurors that “essentially, we’d be left with having to do it all over again, extending additional resources, time and effort” in the event of a hung jury.

“Telling the jury the case will ‘have’ to be retried is misleading,” Hill wrote. “A hung jury often acts as an alarm bell to all but the unthinking, awakening one side (sometimes both) to weaknesses in their case, which can lead to a plea deal rather than a retrial.”

The fact that Stilwell knew the division within the jury, and that most jurors were in favor of convicting, also weighed in favor of reversal, Hill wrote, since the charge could have been perceived as being aimed at the minority. The fact that the jury reached unanimous verdicts on all five charges very shortly after the instructions also provided evidence of coercion, he said.

Appellate Defender David Alexander represented Taylor, and the South Carolina Attorney General’s Office represented the state. Neither office immediately responded to requests for comment on the ruling. South Carolina 13th Circuit Solicitor Walter Wilkins declined comment since the case is under appeal.

Dayne Phillips a criminal defense attorney in Columbia who was not associated with the case but read the opinion, said that it was a helpful ruling for the criminal defense bar in defending against coercive Allen charges.

“If an Allen charge is used in a trial, we have a good standard that helps us clarify what crosses the line of unduly coercive jury instruction on an Allen charge,” Phillips said. “This opinion reiterates that lawyers need to be diligent in cases and while they’re in trial that when an Allen charge is used, they need to think very closely about the language that is used, whether it follows the proper analysis and whether it crosses that threshold as being coercive.”

David Aylor, a criminal defense attorney in Charleston who also was not associated with this case but read the opinion, said that the opinion reaffirms that Allen charges must instruct both the majority and minority to reconsider their views, not just the jurors in the minority.

“Trial judges are the authority figure in the courtroom. Even a benign remark, such as ‘you should come to a decision,’ could be interpreted by a rational juror that the trial judge believes the result is obvious, or at least capable of unanimous agreement,” Aylor said. “As always, counsel must remain mindful and attentive, at all times, to possible errors or omissions during trial.”

Follow Renee Sexton on Twitter @BobcatRenee

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