Lousy reasonable doubt jury charge is no basis for habeas relief

One thing civil court judges always have to tell the jury is that the civil case does not carry a reasonable doubt standard. That standard is for criminal court cases, "and you should put it out of your mind," the judge tells the jury. This case involves the opposite.

The case is Brown v. Greene, decided August 11. At Brown's criminal trial in state court, the judge told the jury that "A jury makes factual findings. 50.1 to 49.9, factual findings can be made although they are not established beyond a reasonable doubt. The elements must be established beyond a reasonable doubt if they're going to be established at all."

Later on during the charge, the court told the jury that "for centuries elections have been closely decided. 50.1 beats 49.9 every time ... And yet, for 230 years now, juries, the same pool of people who can't agree on a candidate, have been unanimously deciding cases." The court went onto explain that juries reach unanimous verdicts through reason and persuasion. Where are the pattern jury instructions when you need them?

Now, jury instructions being jury instructions, the court repeatedly told the jury that the prosecution has to prove its case beyond a reasonable doubt. But what about this 50.1 to 49.9 language? That sounds like a civil jury instruction, where the plaintiff wins by a preponderance of the evidence, where the jury is told that plaintiff wins if his version of events is more likely true than the defendant's version of events. In other words, plaintiff wins if the scales tip slightly in his favor.

The reasonable doubt standard is paramount in criminal law, and the Constitution requires it. Brown's attorney did not object to the 50.1 to 49.9 language. This omission forms the basis for Brown's habeas petition on the ground that his lawyer provided him ineffective assistance of counsel. Brown loses. Over a lengthy dissent by Judge Straub, the Second Circuit (Feinberg and Raggi) cites case law holding the prosecution does not always have to prove certain facts beyond a reasonable doubt, but that this kind of jury charge may be confusing since 50.1 to 49.9 sounds like preponderance language. But cases also hold that jury instructions like this do not deprive the defendant of a fair trial if the instructions as a whole make it clear that the jury has to follow the reasonable doubt standard. Brown's case is even harder to win since this issue comes before the Court of Appeals in the context of a habeas petition, where he cannot win unless the state criminal court unreasonably applied clearly established law.

Brown loses, but the Court of Appeals takes a moment to remind criminal judges to use the pattern jury instructions when applicable, noting that "improvised definitions of the beyond a reasonable doubt standard may be confusing or misleading. We urge trial courts, in the future, to stick to the model jury instructions regarding this issue."