This post from last year addressed the jury misconduct issues that former Governor George Ryan and his aide, Lawrence Warner, raised in the trial court after they had been convicted criminal charges that they had improperly steered state contracts for their own benefit. That post-trial motion was denied, so Ryan and Warner made the jury misconduct during the trial and deliberations a central issue in their appeal to the Seventh Circuit Court of Appeals.
Well, as you probably have heard by now, a divided Seventh Circuit panel rejected Ryan and Warner’s appeal earlier this week (the decision is here), concluding that while the trial “may not have been picture perfect,” it was fair enough to uphold the convictions. That comment did not sit well with dissenting Judge Michael Kanne, who called the majority’s “not pretty perfect” comment “a whopping understatement by any measure.” Judge Kanne proceeded to lay out over three pages what went wrong in the trial:
“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 courtís intent was not to make the jurorsí names public, that effort was compromised when the jurorsí 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 ñ contrary to the courtís instruction ñ 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 newspaperís 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. Attorneyís 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. Attorneyís Office.”
“During the five-day hiatus in jury deliberations, the exposÈ 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 judgeís 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.”
Incredibly, even the foregoing does not fully describe just how dysfunctional this jury had become. Shouting and apparently pushing and shoving went on during jury deliberations. The majority opinion explains that the apparent holdout juror sent out a note to the trial judge saying “that other jurors were calling her derogatory names and shouting profanities.” That was followed by a note from other jurors asking the trial judge to remove the holdout juror because “she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner.”
But things get even worse. Not only was the jury out of control, the trial judge was ineffectual in bringing order to the proceedings. Judge Kanne observes as follows:
At oral argument before this court, Prosecutor Collins stated that ìJudge Pallmeyer is a consensus builder.î . . . 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 courtís 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.
Judge Kanne succiently sums up the proceedings in the following manner:
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 ñ 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.
What possible public or judicial policy is furthered by allowing such juror misconduct to undermine a trial that could send two men to prison for most of the rest of their lives? As usual, Ellen Podgor has insight comments on the decision here and here, and the Volokh Conspiracy is also all over the decision.
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The criminal trial of former Texas Southern University President Priscilla Slade on charges of misappropirating TSU property begins today at the county criminal courthouse in downtown Houston (previous posts here). Harris County prosecutors and Mike DeGeurin, Ms. Slade’s defense counsel, spent the last several days picking the jury.
