Wednesday Writs: Self Defense And The Birth Of The Allen Charge in Allen v United States

Webster County, Nebraska, Court House jury box.
Photo by Ammodramus, CC0, via Wikimedia Commons

WW1: Our setting is Arkansas, in May of 1892. A group of teenage boys who had previously argued met one another near a farm where one of the boys, roughly 14 years old Alexander Allen, worked as a farmhand. Allen and the son of the farm’s owner, James Marks, had encountered 17 year old Phillip Henson and a few of Henson’s friends a few days prior, when Henson’s group allegedly pursued Allen and Marks, throwing sticks at them and declaring their intention to “kill that n*****” (referring to Allen, who was black.) They vowed to return to settle the score on the following Saturday.

On Saturday, Marks and Allen were in Marks’ field when Henson and his crew turned up. Accounts vary as to what happened next; according to one of Henson’s group, they stayed on the other side of the fence, the sticks were for killing frogs at the lake they were heading to, and Allen starting a verbal argument. According to Marks and Allen, Henson’s group came over the fence onto the farm property, again armed with sharp sticks, said they were there to kill Allen, and Henson then physically attacked Allen. After a scuffle, Allen pulled out a pistol, which he used to fatally shoot Henson. He also shot and wounded one of Henson’s friends.

Because the shooting occurred on Cherokee Nation lands, Allen was tried in federal court. At the conclusion of evidence and argument, the judge instructed the jury on 4 main points: murder, manslaughter, self defense, and the age of accountability.

As to murder, the Court instructed that if the prosecution’s witnesses are believed – that Allen crossed the fence and approached the Henson group, aggressively and unprovoked, and attacked them before shooting them – the jury could find him guilty of murder.

If, however, there was an altercation not started by the defendant and he did not act in a “brutal and unnatural and specially wicked way,” the jury could return a verdict of manslaughter.

If the jury found that Allen could reasonably have believed he was in mortal danger and the use of the gun was necessary to protect his own life, and no other recourse existed, the jury could return a verdict of not guilty by reason of self-defense.

Now what is justifiable homicide? When can a man slay another? When can he sit as a judge passing upon the law, and a jury passing on the facts, and then as a jury applying the law to those facts, and finding a verdict, and then acting again as a court and entering up judgment, and then going out as a marshal or sheriff and executing that judgment, all at the same time, determining the law — determining the facts as a judge, jury, and executioner all at the same time? This is a mighty power in the hands of the citizen. It is a mighty power, yet it is to be applied when it belongs to him because it is the law of necessity, and it is given to him because it is the law of necessity; it is given to him because at the time he executes it in a deadly way, his own life is either actually or really in deadly peril from which he cannot escape except by the use of that deadly means or, in your judgment, taking into consideration his condition, there was reasonable ground to believe there was peril.

The Court then instructed the jury on the consideration of accountability based upon Allen’s age. The law at the time held that a child under the age of 11 is presumed not accountable for his actions, though that presumption could be overcome by other evidence. If the defendant was 11 years old or older, the opposite was true: He is presumed accountable, unless the defense could prove otherwise.

The jury found Allen guilty of murder and he was sentenced to death. He appealed the verdict and sentencing, claiming in part that the jury instruction regarding age and accountability was in error. At the Supreme Court, Chief Justice Fuller issued the opinion in our case of the week, Allen v. United States. He began by pointing out that, at common law, a child was presumed incapable of committing a crime between the ages of 7 and 14, unless the prosecution overcame the presumption. The trial court judge’s instruction incorrectly stated the age limit was 11; however, Alexander Allen was over 14 years old, by his own testimony, at the time of the alleged crime. But that did not end the court’s inquiry; because the jury was required to consider the existence of malice “it would seem proper that the attention of the jury should be called to the youthfulness of the offender if the circumstances rendered that fact significant, and since in this case the presumption of the lack of accountability had [not been] obtained until within two months of the homicide, if the defendant’s own statement as to his age is to be accepted, an instruction which treated him as having been under the weight of full accountability three years longer than was the fact may have tended to weaken the effect upon the minds of the jurors which his youth might have otherwise had, and to which the humanity of the law regards him as entitled.” In other words, the Court’s instruction that attributed accountability to a defendant over the age of 11 could have made the jury perceive Allen as more mature and capable of malice than they may have found him, had they known he was only 2 months past the age of accountability.

The Court did not dispose of the case on the issue of age, finding the jury instructions regarding self-defense more problematic. In particular, the Court was troubled by the passage quoted above. Justice Fuller reasoned that comparing the split-second decision to use deadly force with the careful considerations of a judge or jury could distort the jury’s deliberation of the defendant’s decision making process. Thoughtful deliberation is not the standard to be applied in considering the choice to use self-defense.

The case was remanded, and Allen tried again, and convicted again. He appealed this verdict, too. This time, the error was that the Court instructed the jury that no self-defense argument was applicable because being attacked with sticks does not equate to mortal danger. The only options were murder, manslaughter, or not guilty.

Writing for the Supreme Court was Justice Shiras. The Court held that the question of whether being attacked with sticks could reasonably put someone in fear for their life was in the province of the jury, and the judge’s instruction inappropriately usurped their duty. Further, the trial judge had told the jury that the fact that the defendant had armed himself in anticipation of a potential attack would negate a self-defense argument. Said the Court, this instruction was “erroneous because it involved the assumption that the act of the defendant in arming himself showed a purpose to kill, formed before the actual affray.” Allen was, again, awarded a new trial.

His third trial likewise resulted in a conviction and subsequent appeal. Allen raised several errors, many of them again related to the judge’s charge to the jury. The opinion was written by Justice Brown. This time, the Court found, the judge got it right when instructing the jury about what might constitute murder, versus manslaughter, versus self-defense.

However, this third SCOTUS opinion in the Allen case is notable for another reason. At some time after beginning deliberations, the jury returned to the courtroom, deadlocked, and received guidance from the judge. The judge spoke at length to the jurors, imploring them to hear out their peers and reconsider their opinions. If one juror found himself at odds with the majority of the others, he should consider carefully whether they might be right; could his doubt be reasonable, if no one else sees it? Maybe, but the juror should entertain the thought that he might be the one in the wrong.

While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself.

I have not been able to determine whether the teen was executed following this final appeal. This set of instructions, known as the Allen charge, are still used today in some jurisdictions when a jury reports that they are at an impasse.

WW2: Now that the Rittenhouse trial is over, the next battle looms: who is entitled to the $2,000,000 in bail money that will now be refunded? Lin Wood, of Trump election fraud lawsuit infamy, says it belongs to his “Fightback Foundation,” who helped to raise some of the money for Rittenhouse. The teen’s lawyers say it was raised for Kyle and therefore belongs to Kyle. According to the defense team nearly half a million of the funds were raised by Kyle’s mother, Wendy Rittenhouse.

WW3: While focus has been on Rittenhouse, there are several other high-profile trials underway: the trial of alleged Theranos fraudster Elizabeth Holmes is still going on, three weeks after it began.

WW4: Ghislaine Maxwell is facing a jury this week in New York for her role in the alleged sexual trafficking of young girls by Jeffrey Epstein.

WW 5: And in Georgia, closing arguments finished up this week in the trial of the men who chased down and killed Ahmaud Arbury in Georgia last year. The defense team in this trial, in my humble opinion, is abominable. Don’t believe me? Just watch this.

"… what brought Ahmaud Aubrey to Satilla Shores, in khaki shorts, with no socks, to cover his long, dirty toenails." https://t.co/ZCDwCwKsql pic.twitter.com/V9FfvUHsVT

— This Meeskite Guy (@AGuyOnTehNets) November 22, 2021

WW 6: President Biden this week signed into law a bill authored by West Virginia’s senators to increase and improve the use of security cameras in VA hospitals. The bill was inspired by the “angel of death” serial killing nurse who murdered at least 7 in a Clarksburg, West Virginia VA hospital a few years ago.

WW 7: SCOTUS watchers thought they might get an answer from the Court on the Texas abortion law case; imagine their disappointment when all they got was a water rights case between Mississippi and Tennessee.