It's Broke, But Don't Fix It: The Ryan Appeal

When do jury deliberations become so horribly flawed that a guilty verdict cannot stand?  If you're in the Seventh Circuit and the trial was long and important, the answer may be never.   

The Seventh Circuit today rejected the appeal of former Illinois governor George Ryan and his aide Lawrence Warner, who were convicted of improperly steering state contracts for their own benefit.  The first sentence really says it all:  "This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months." 

"Totally astounding"

In lines that have been repeatedly quoted already today, the majority said the trial "may not have been picture-perfect" and the dissenting judge, Judge Michael Kanne, called that "a whopping understatement by any measure."  Judge Kanne spent three pages setting out in bullet points what went wrong in this trial.  "Some of the factors would be unremarkable in a routine criminal case," he said, "and other factors are totally astounding in any case."  I've italicized some of the more astounding items:

• "In a case that was tried over a six month period, the jurors entered and exited the courthouse every day past scores of television and still cameras and reporters.
• "The jurors used public elevators and brushed elbows with anyone who happened to be in them.
• "Although the court’s intent was not to make the jurors’ names public, that effort was compromised when the jurors’ names were used in the in-court voir dire.
• "When jury deliberations were ready to commence in the most high profile case in Chicago in recent memory, there was no thought of sequestering the jury.
• "During the initial eight days of deliberations an apparent holdout juror was purportedly threatened by other jurors with a charge of bribery.
• "Legal research gained by a juror from the internet was – contrary to the court’s instruction – brought into the jury room in an effort to persuade the recalcitrant juror to change her position.
• "A reporter for the Chicago Tribune advised the district court during jury deliberations that the newspaper’s   search had disclosed major inconsistencies between answers in a jury questionnaire and public records. Based on the information provided by the Chicago Tribune, the district judge, in concurrence with all parties, requested the U.S. Attorney’s Office to conduct a background check on all jurors.
• "Jury deliberations were halted following the Chicago Tribune disclosure and the hiatus continued during the investigation of the jurors by the U.S. Attorney’s Office.
• "During the five-day hiatus in jury deliberations, the exposé by the Chicago Tribune was published revealing that, indeed, false answers had been given on a jury questionnaire and that the sitting jurors were now under investigation.
• "Amidst questions raised by the district judge concerning the necessity of advising the jurors of their constitutional rights and their right to counsel, the individual examination of six sitting and three alternate jurors was begun.
• "Through the judge’s examination it was determined that a majority of jurors had provided false answers under oath and could face criminal prosecution. Many jurors who were interrogated told the district judge that they were scared, intimidated or sorry for what had occurred.
• "During the course of the interrogations, the jurors were granted immunity from prosecution by the U.S. Attorney.  Some jurors later hired lawyers in order to represent their own independent interests arising from their participation in the trial.
• "Two jurors who provided untruthful answers were excused from further service while others so situated were retained.
• "Before the hiatus in deliberation, jurors informed the court that they were having a conflict and yet after the interrogations the judge dismissed one of the jurors in the conflict without determining whether she was a holdout juror.
• "Alternate jurors were seated, but not in the order required by Rule 24.
• "After eight days of deliberation by the original jury, and five days in hiatus, a reconstituted jury deliberated for ten days and returned the verdicts in this case."

Amazing as that litany is, it doesn't fully capture the yelling and, apparently, pushing and shoving that went on in these deliberations.  The majority explained that the apparent holdout juror, whose name was Ezell, sent out one note saying "that other jurors were calling her derogatory names and shouting profanities."  Then the others sent a note asking that Ezell be removed "because she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner."

It's about time

Between the two opinions, there are 74 pages to read here, with each side discussing dozens of flaws in the management of the jury, whether they were harmless error, and whether they had been adequately raised on appeal.  The majority might have saved both sides some paper if it had pared its opinion to something like "We're not retrying a case that riveted the entire state of Illinois for six months no matter what anybody says."  Then Judge Kanne -- who, as a Volokh Conspiracy commenter pointed out, is a Reagan appointee not known in these parts as a friend of criminal defendants -- might have been able to limit his opinion to its candid conclusion:

In the final analysis, this case was inexorably driven to a defective conclusion by the natural human desire to bring an end to the massive expenditure of time and resources occasioned by this trial – to the detriment of the defendants. Given the breadth and depth of both structural and nonstructural errors, I have no doubt that if this case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly declared. It should have been here.

A consensus builder

Whether you like the result or not, it's worth jotting down the cite for this case, which is actually captioned U.S. v. Warner.  For one thing, the sheer number and variety of the jury glitches make it a one-opinion encyclopedia of case law on this subject.  I'll save the opinion for another reason too.  Someday I'll want to quote Judge Kanne's thoughtful words on an issue appellate courts seldom mention:  the mess that results when judges refuse to judge.

At oral argument before this court, Prosecutor Collins stated that “Judge Pallmeyer is a consensus builder.” . . .  This insightful comment is the key to understanding the non-structural juror errors. Consensus building can help in finding common ground in disputes. It can also help to expose decision makers to alternative points of view. But consensus building can have negative consequences as this case demonstrates.

Consensus building by the district judge allowed a continual round robin of discussions between the attorneys and the court especially during the critical period of March 27th and 28th when the parties and the court were addressing the juror related issues. Transcripts from this period reveal a very conscientious but irresolute judge who is willing to contribute her views and concerns to the conversation involving contested issues, but is reluctant to provide firm rulings that end the court’s consideration of those issues. The record from this period is full of conversations but lacks definitive rulings.  Consensus building does not always lead to the resolution of difficult issues.

_________________

Note on other sources:  this case was all over the Web today.  There is particularly thoughtful discussion at White Collar Crime Prof Blog (two posts, here and here); Robert Loblaw's Decision of the Day (again); and Volokh Conspiracy. 

(Photo by ecparker at http://www.flickr.com/photos/ecparker/458330140/; license details there.)