The Supreme Court takes a civil case on the sanctity of jury deliberations

As I have said before in these pages, I have interviewed each jury after each jury trial I have conducted since I started as a Magistrate Judge way back 1987.  My intent was to learn how I could do a better job, and also to help the jurors decompress. I always end the interview by telling the jurors that they may speak with the lawyers if they wish to provide counsel with a critique of the lawyers’ performance. I caution the jurors not to speak about the substance of the deliberations; that is, what the jurors said or did as they deliberated. I avoid that information as well when I interview the jury.

The Supreme Court has now taken a case from the Eighth Circuit that broadly speaking raises the question of what information lawyers are entitled to know regarding what was said during jury deliberations. The case comes from the Eighth Circuit and was written by Judge Bye and concurred in by Judges Wollman and Colloton.  Anyone who knows about the Eighth Circuit knows that the panel was about as diverse ideologically speaking  as one could draw.

The plaintiff’s lawyers wanted to use a post-verdict affidavit from one juror about the statement of another juror during deliberations. During the deliberations, one juror said that another juror revealed that her daughter has been at fault in a fatal car accident. “She related,” so said the affiant said, “that if her daughter had been sued, it would have ruined her life.” Other jurors echoed her statement, he said.

Judge Bye’s opinion is clear and well written.  Basically, Judge Bye said that Federal Rule of Evidence 606(b) means what is says–you don’t get to use information from jurors to get after the verdict unless the exceptions apply.  None did. That was true even if the statement was intended to prove that the juror was not forthcoming during voir dire. The Supreme Court has taken the case for review. See Adam Liptak, Challenging the Privacy of Statements Made During Jury Deliberations, New York Times (September 15, 2014) (hat tip to How Appealing). The Court apparently took the case because of a split in the Circuits. The Ninth Circuit, and perhaps others, held that statements which tend to show deceit during voir dire are not barred by Rule 606.  On the other hand, the Third Circuit in an opinion written but then Judge Alito and the Tenth Circuit went the way of the Eighth Circuit.

I am betting that the Supreme Court affirms the Eighth Circuit. The fact that Justice Alito sided with the Eighth Circuit’s reasoning when he was a Third Circuit judge provides extra “umph” to those who would interpret Rule 606(b) strictly. What do I think is the correct result?

I think Judge Bye got it right. Moreover, I have a visceral reaction against lawyers using post-verdict statements from jurors. What do you think? In commenting, please also tell me whether you make it a practice to interview jurors after the verdict and tell me whether you learn anything of value?


There is news and then there is The New York Daily News

Through How Appealing at 9:44 a.m. today, I see the New York Daily News is savaging federal Judge Frederick Block in what the paper hypes as an “exclusive.” While handling a civil jury trial, the judge was in the private hallway behind the courtroom and adjacent to chambers, and was talking to Judge Weinstein in the hallway. Judge W asked Judge B how things were going, and Judge B replied something like,”‘I’m OK, I’m doing a little stupid trial’” as someone else walked by the two men. Block realized after the fact that the passerby was one of his jurors.

The judge took the bench and told lawyers that he had committed a “faux pas.” After the juror was interviewed, and it was learned that he or she heard the remark but had not repeated it to the other jurors, the juror was excused and the remaining jurors allowed to deliberate. The case was apparently both little and stupid. About 15 minutes following the commencement of deliberations, the jury returned a verdict for the defendant. Among other claims, the plaintiff had asserted that his former employer had treated him badly because, so says the New York Daily News, “the ‘family meal’ prepared for employees contained sliced ham and pancetta, which he couldn’t eat because he’s Muslim, and the chef refused to accommodate his religious diet.” Oh, the horror!

Handling the physical movement of jurors, particularly given the poor design of many courthouses, is always nightmare for a judge and court staff. The first jury trial I had in Lincoln required a mistrial because a police detective shot his mouth off in front of all my jurors while they were walking in the private hallway to go lunch and the detective, who was a trial witness, was passing by them while talking with an AUSA. Stuff happens in the real world and you would think the New York Daily News could and would recognize a non-story from a real one.*

I don’t know Judge Block, and have no opinion whatever about his abilities as a trial judge.** On the other hand, the New York Daily News ought to learn what is and is not news.


*Apparently, the paper and the judge have a history. In the instant article, the paper recounts gleefully that it has previously referred to Block as “Judge Blockhead” because he “ridiculed federal prosecutors during a racketeering murder trial for seeking the death penalty against a drug kingpin.”

**For what it is worth, the Almanac of the Federal Judiciary,  a subscription service that costs a lot of money, interviews lawyers throughout the country to get their candid take on each federal judge about whom the lawyers have experience. Anonymity is promised to the lawyers. The several page write-up that follows is then sold to other lawyers so they can get detailed insight into each federal judge before whom they may appear and about whom they are unfamiliar. Overall, here is what the Almanac most recently wrote about the judge: “Lawyers interviewed said Block is experienced and knowledgeable.” I also know that the judge has written a candid book entitled, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.  David Lat and Scott Greenfield give the book (and Judge Block) favorable reviews.

Typhoons and tornadoes

Typhoon Kalmaegi (the Korean word for seagull) shut down Hong Kong, and Lisa and Karel who live right across the bay felt the impact. In fact, they apparently captured a rare event in a photo. From their high-rise apartment, they took the following pic seemingly showing a tornado floating down from the typhoon’s storm clouds.

This photo was taken from Lisa and Karel's 16th floor apartment in Shekou.  It shows a very unusual weather event.  A typhoon and a tornado.  Schools were closed. By the way, if it looks like there are trees on the building in the forefront of the photo that is because there are trees on top of that building.

This photo was taken from Lisa and Karel’s 16th floor apartment in Shekou. By the way, if it looks like there are trees and bushes on the building in the forefront of the photo that is because there is rooftop garden on that building. In the summer, it is pretty.


More on the PACER problem

With thanks to How Appealing, and for those interested in the PACER mess, please read Senate Judiciary Committee chairman urges PACER to restore access to removed case archives from the Washington Post. I hope Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) keeps the heat on.*


*See here for my earlier post on this subject.

The law versus religious belief

One of my wonderfully erudite correspondents passed along: Ian McEwan: the law versus religious belief, The Guardian (September 5, 2014). McEwan is a highly regarded British novelist. His writing is stunning both for the clarity and beauty of it. In this essay, McEwan examines the difference between law and religion, and the similarities between novelists and judges.

In particular, McEwan quotes British Appeals Court Judge Sir Alan Ward in case where the court authorized the killing of one infant in order to save another: “”This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique.” In the context of my earlier post about factual innocence and the death penalty, McEwan’s gentle but penetrating piece struck a chord with me. Give it a read.



Catch and release

There is a lot of talk about reducing federal prison populations. This discussion is almost always connected to the exercise of judicial discretion by federal judges.  For example, see the very thoughtful article entitled A ‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of Discretion written by Professor Mark Osler and my friend Judge Mark Bennett. These discussions are premised on two related ideas: (1) the federal prison population is comprised of many people who don’t need to be there and (2) if federal judges would only exercise their discretion, they would learn that a large number of guilty people who appear before them don’t need to go to prison.

The problem I have with this talk is that (1) most of the guilty people I see ought to be in federal prison and (2) I am no good at distinguishing between those who should go to prison and those who should remain out of prison.  And that realization in turn reminds me of the following cartoon which perfectly captures my views about the rush to reduce federal prison populations through the exercise of federal judicial discretion:

Image credit: (copyright 2011).

Image credit: (copyright 2011) licensed by Jantoo Cartoons.



If I blush, does that make me a Girlie Man?

Doug Berman and Scott Greenfield are two preeminent and prolific law bloggers. By any measure, they are among the top five opinion makers when it comes to law and blogging. Each has reached that pinnacle through an intellectual horsepower that is equivalent to the Chevy 427 engine that I hungered for in my youth and still hunger for now.

Image credit: Chevrolet

Image credit: Chevrolet

For good or ill, Doug, one of the few true federal sentencing experts, is probably responsible for my decision to try blogging. He was the first blogger to clearly demonstrate the power of the medium to influence real life decisions of judges. Scott is responsible for teaching me about legal realism when viewed from the criminal defense trenches and doing so with stunning, and sometimes brutal, brilliance. This weekend both Doug and Scott had something to say about what I wrote last week. See here for Doug and here and here for Scott. While these fellows frequently disagree with me, the fact that they acknowledge my musings makes me feel that what I write might be worthwhile.

I’m blushing. I hope that doesn’t make me a Girlie Man.

Image credit: bookofjoe

Image credit: bookofjoe



Children and chickens

As you know, my daughter Lisa, and her husband Karel, have just had their third child, Zora. Petra, their oldest child (5), has some understanding that Zora came from her mother’s tummy. Milan (3) is pretty clueless.

A few weeks before Lisa was scheduled to give birth, Karel returned to his teaching duties. Among other things, he teaches biology. He decided that it would be a good learning experience for his students to incubate live chicken eggs, and watch the tiny little beings emerge from their individual eggs. Petra and Milan frequently went with Karel to school during the weekends to make sure the chicks were maturing properly in the eggs. They adjusted the incubator temperature and that sort of thing.

During this time, Zora came into the world and she is now home. Petra and Milan love to hold her. Coincidentally, the chicks hatched this week. Below, see the photo of Milan and Petra reacting to the brood of chicks that have made their startling appearance in Karel’s lab. Notice Milan’s facial expression.

photo (1)

Now, go back in time with me to 1980. My first wife, Verdella, is not feeling well and she has gained a little weight. Because she is tall, a bit of extra weight is not apparent on her long frame. Verdella goes to see the local doctor. He makes a referral to an OB/GYN in Lincoln because “your uterus just doesn’t feel right.”

Verdella decides to take Marne (about 8) and Lisa (about 5) with her to see the OB/GYN in Lincoln. After the visit, the three of them will do something fun in the big city. When they arrive at the doctor’s office, the children, who are all dressed up, sit quietly in the waiting room paging through books for children as Verdella sees the doctor. An ultrasound quickly shows why Verdella is not feeling well and has gained a little weight. She is pregnant with our son Keller.

Verdella is stunned and surprised. We had no plans to have a third child. Collecting herself, she walks into the waiting room and sits down with the children. The shock shows on her face. Marne asks her mom what is wrong. Verdella says she is “pregnant.” Marne asks Verdella to tell her what “pregnant” means. Verdella patiently explains and includes a passing reference to the “egg.” Lisa is silent. Both children seem perfectly satisfied with Verdella’s explanation and off everyone goes to the car.

As they are walking to the car, little Lisa asks Marne: “Is Mom going to have a chicken?” Marne looks down, and sternly informs Lisa, “If Mom has a chicken, we’ll love it anyway.” At that point, Verdella burst out laughing and crying at the same time.

Some things are more important than others.


Why I don’t favor the impeachment of Judge Fuller

In my post yesterday, I suggested a mechanism short of impeachment to get rid of Judge Fuller. Impeachment was not one of them. In this post I explain the fundamental reason why I don’t favor impeachment and why I am frightened by the thought.

Fuller’s despicable conduct was nevertheless private, and it was unconnected to the performance of his judicial duties. If you examine the prior impeachment cases tried in the Senate from the list and summary prepared by the Federal Judicial Center and presented in my (updated) post of yesterday, you won’t see anything comparable. Now, let me be clear, I don’t mean to excuse Fuller’s behavior or suggest that domestic violence should be tolerated in any way. I mean “comparable” in the way lawyers and judges parse precedents. And, what sticks out to me is the private nature of the abhorrent conduct.

It is perfectly fair for you to ask: So what? Here’s my answer: “I don’t trust the House of Representatives to exercise restraint once articles of impeachment are presented against a federal judge for conduct that is private in nature.” I fear political witch hunts against judges who have offended the party controlling the House.

Image credit:

Image credit:

I have thought a lot about impeachment. I even have experience advising a legislative body whether to impeach, and when the body elected to disregard my advice to condemn but not impeach, trying the impeachment case I advised against. I know what can happen when a legislative body gets wound up. Such bodies almost never exercise restraint. They don’t think about the consequences, and if they don’t like the political stripes of the person in the cross-hairs there is an almost irresistible urge to get partisan.

Let me give you an example of case that fully illustrates my fear. While I will not name the judge, the case I next describe is a real one.

Judge A killed a man. The judge was driving his car and crossed into an adjacent lane. The older man in that next lane was on a little motorcycle. The judge’s car hit the motorcycle, and knocked the operator to the concrete. He died at the scene or shortly thereafter. Judge A should never have been driving. He was blind in one eye and when his hearing aids failed to work properly (as they often did) he was deaf. Judge A was also an icon. He was revered by judges and lawyers across the nation. He was the very essence of a model judge, and various national organizations had recognized him as such. But a man was dead, and the judge’s poor judgment (“reckless driving”) compelled the local prosecutor to charge the judge. Judge A admitted his error, and was placed in a diversion program which required community service. The judge completed the community service hours as required. Judge A had decided lots of high-profile cases. The outcome of many of those cases was distinctly “liberal” when viewed from the fractured lens of the true believers on the right.

Now, if Fuller’s private conduct justifies impeachment, tell me why Judge A’s private conduct resulting in death does not also justify impeachment? More particularly, if Judge A really pissed off the House and that body had been fuming about his liberal decisions, do you really think Judge A would be treated fairly by the House? I don’t.

Get rid of Fuller, but don’t impeach him for his private conduct. The good men and women who serve the federal judiciary will rue the day if you do.


If Judge Fuller won’t resign, the Chief Judge of the Circuit and the Circuit Judicial Council should stop him from handling cases for as long as the law allows

Judge Fuller got a sweet deal when prosecutors allowed him to enter some type of diversion program that will allow him to erase his criminal conviction for beating the crap out of his wife in a fancy hotel room while reeking with booze. See here and here for recent coverage (with a hat tip to How Appealing).

Now that we know the resolution of the criminal process, we can focus on the fact that Mark Fuller is an active United States District Judge. As such he holds immense power, and he exercises that power alone. What should happen if Fuller won’t resign? And from all accounts, he has no intention of voluntarily quitting.

I would not waste the effort trying to impeach him. I know something about impeachment having actually tried such a case before the Nebraska Supreme Court where I sought to oust Nebraska’s Attorney General. I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did. By the time it got to trial in the Senate, under his plea deal, the conviction would no longer exist. It will have been erased.

Instead, the Chief Judge of the Circuit and the Circuit Judicial Council should strip him of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii). Pay him forever as an inducement to resign–the statute gives them that leverage. I don’t care. That’s chump change. Just neuter him for as long as possible. Approach this process practically and quickly. But be tough.

I don’t care about punishing Judge Fuller. I don’t want to hurt his family. I just want him off the bench for as long as possible. Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.*

UPDATE: For those who suggest impeachment is the proper route, I urge careful consideration of the prior impeachment cases.  Here is the list and a short summary of those cases prepared by the Federal Judicial Center, the research arm of the federal judiciary:

Impeachments of Federal Judges

John Pickering, U.S. District Court for the District of New Hampshire.
Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

Samuel Chase, Associate Justice, Supreme Court of the United States.
Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

James H. Peck, U.S. District Court for the District of Missouri.
Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

Mark W. Delahay, U.S. District Court for the District of Kansas.
Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

Charles Swayne, U.S. District Court for the Northern District of Florida.
Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

Robert W. Archbald, U.S. Commerce Court.
Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

George W. English, U.S. District Court for the Eastern District of Illinois.
Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

Harold Louderback, U.S. District Court for the Northern District of California.
Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

Harry E. Claiborne, U.S. District Court for the District of Nevada.
Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

Samuel B. Kent, U.S. District Court for the Southern District of Texas.
Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

Federal Judicial Center, History of the Federal Judiciary, impeachments of Federal Judges, (Last accessed September 11, 2014 at 3:10 PM).


*By the way, this has nothing to do with the Ray Rice case.

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