Judge tells deadlocked jury in Rasheed Scrugs death penalty phase to try again

In an emotionally agonizing afternoon for the families of victim and murderer, the Philadelphia jury considering the death penalty for admitted police killer Rasheed Scrugs said it was deadlocked Friday, but, after getting terse instructions from the judge, decided to try again Monday.

Common Pleas Court Judge Renee Cardwell Hughes had taken the unusual step of handing each juror a piece of paper on which to write, privately, "what the court could do to facilitate your deliberations."

That stunned not only Scrugs' attorneys, but also defense lawyers experienced in death-penalty cases, who gathered in court as word circulated that the jury was deadlocked.

Scrugs' attorney, David Rudenstein, lodged a continuing objection to Hughes' instructions and the jury's resumed deliberations - indicating a potential ground for appeal. The concern was that Hughes' action could be interpreted by jurors as coercion or a suggestion to return a death sentence. A deadlocked jury usually means an automatic life sentence.

Hughes apparently was persuaded by prosecutors who submitted to her a 22-year-old U.S. Supreme Court decision that affirmed similar instructions from a Louisiana trial judge in a death-penalty case.

"We're all just waiting now to see what happens," Rudenstein said to Scrugs' mother, Annah Abdul-Ghaffar. She had begun weeping when the jury said it was deadlocked, which would have spared her son's life.

On the other side of the courtroom, the family of Police Officer John Pawlowski, 25 - shot to death by Scrugs in a Feb. 13, 2009, confrontation at Broad Street and Olney Avenue - seemed to heave a collective sigh of relief when the jury announced it would continue deliberating.

Earlier, the news of a deadlock shocked and angered the Pawlowski family. Edward Leigh, father of Kimmy Pawlowski, the officer's widow, stared red-faced at Scrugs, muttering under his breath.

Police Commissioner Charles H. Ramsey was next to him, in dress uniform, staring grimly ahead.

Under Pennsylvania's death-penalty law, juries in first-degree murder cases must decide whether to sentence defendants to death by lethal injection or life in prison without chance of parole. If they cannot decide, the judge must impose a life sentence. Usually, judges ask deadlocked capital juries whether the impasse is insurmountable or whether they wish to cede sentencing to the bench.

That's what Hughes did in August, when a jury could not decide on a sentence for two men convicted of first-degree murder in the May 3, 2008, shooting of Philadelphia Police Sgt. Stephen Liczbinski.

But at 3:13 p.m. Friday, with the jury of eight women and four men in the box, the judge went further, asking jurors to explain in private notes what they thought caused the deadlock.

The jurors were sent out and brought back at 3:40, after Hughes and prosecution and defense lawyers had reviewed the 12 notes.

"It's clear to me that some of you lack clarity on the law," Hughes quietly told the jury. "It's important that even if one person has a question, that you present it to me so I can address it."

She added, "It is also clear to me that you need to listen to one another."

The judge again sent the jurors out to decide whether they wanted to continue deliberations. At 4:30, they left the Criminal Justice Center after sending a note saying they believed they "could work together" and wanted to return Monday.

The contents of the jurors' notes were not made public. One source familiar with the proceedings said at least one juror wrote that she thought some other jurors did not understand the law.

Rudenstein and co-counsel Lee Mandell appeared angry at the development, although they, like the prosecutors, are bound by a gag order.

Other defense attorneys said they had never heard of a judge taking such action in a death-penalty case in Pennsylvania or elsewhere.

The 1988 Supreme Court opinion in Lowenfield v. Phelps, submitted by prosecutors Edward McCann and Jacqueline Juliano Coelho, involved a judge who twice polled a jury about whether further deliberations would be helpful.

After the second poll, the judge warned the jurors "to consult and consider each other's views with the objective of reaching a verdict, but not to surrender their own honest beliefs in doing so." The jury returned a death sentence 30 minutes later.

In its 5-4 ruling, the high court wrote that "in context and under all the circumstances, the two jury polls and the supplemental charge did not impermissibly coerce the jury to return a death sentence."