Juror trauma

Much of this blog is a never-ending whine about what a tough job federal judges and federal trial lawyers perform. More particularly, we frequently discuss the death of jury trials in the federal courts and lament that “our way of life” is going the way of the mediator or the plea bargain. Cue the choir!

If we are honest, we must admit that we spend almost no time thinking about who makes the jury trial system work–jurors. They get hailed into court on pain of a jail sentence if they refuse. Indeed, I have held very public hearings threatening recalcitrant jurors who failed to show up with both a fine and a jail sentence until they publicly apologized for telling us to pound sand. In federal court, they can be required to travel hundreds of miles and sometimes through dangerously inclement weather. Sometimes, we also treat them like cattle and shuffle them around just like you would expect from some terrible airline that just cancelled a flight. We pay them (in the federal system) $40 a day plus minimal subsistence.  Their employers can’t fire them for jury service, but there is no federal law requiring employers to make up the pay difference. And all that is just the beginning.

I want you to imagine sitting through a trial as a juror. Derived from one of my cases, the basic facts are these:

A white street punk, with a pretty face, who was followed around by two young teenage boys (about 13), made a deal for $500 dollars worth of grass. A black guy and a native guy, who were both savvy cons, agreed to sell the dope to the punk with the pretty face but they wanted their money first. Money paid, but no dope forthcoming. Punk, with sweet face, returns to the apartment, and executes the black guy and the native guy with a rifle and with the clean-up assistance of the two young teenagers. Blood all over. Bullets in the belly and head as the victims each tried to crawl away. To make a point, the white street punk, with the pretty face, blows off the balls of one of his victims. That perfectly punctuates the encounter.

It is summer. The bodies are left to swelter in the small apartment for two weeks. When it is finally entered, the stench is overpowering and there are literally hundreds of thousands of flies that grew from the maggots that begin to invade the bodies shortly after death. The autopsy photos look like something a deranged person would print from a mythical snuff video. All of the foregoing is shown in vivid color on big photos blown up and placed on poster board so no juror will miss any detail. The only saving grace is that the feds took the death penalty off the table at the last moment.

Deb Gilg, a really good gal and our United States Attorney, has written a wonderful piece about the impact of trials on jurors. It is attached here: juror.stress.gilg. I urge you to read it, and if you truly care about the vaunted jury trial right, think about how all of us could help jurors live through the ordeal of a jury trial whether it be civil or criminal.

By the way, here are two things I do now to try to lessen jury trauma in both civil and criminal cases:

  • I spend an hour with the prospective panel before jury selection. I have described my orientation in a previous detailed post, but it essentially turns upon a physical orientation to the courtroom and a relaxed and informal give and take with the jurors about what and when they will see particular things during the trial and why they are seeing such things. Jurors have repeatedly told me that this orientation relaxed them and made them “feel safe.”
  • Following every jury trial for the last 25 years, and after I have officially excused the jurors, I return, with my courtroom deputy, to the jury room.  By this time, the courtroom deputy has become very close with the jurors and they see her as a extraordinarily helpful and non-threatening ally. I knock and walk in, and then I physically shake hands with each and every juror and I thank them for their service. I tell them that they can ask me any question they want, and that I will give them straight and honest answers if can. And, that is exactly what I do. If they ask me whether they did the right thing, most of the time, I say “yes” because most of the time I agree with them. I will also stress that I would not have given them the case unless their verdict (whatever it was) could fairly be viewed as both proper and correct. If they ask about sentencing in a criminal case, I will honestly describe the process and estimate the probable sentence. If they have concerns for their safety, I will deal in very practical terms with their concerns and I have sometimes brought in the room US Marshals to help me explain specific procedures and tactics. In short, I will spend as much time (sometimes well over an hour) answering questions and reassuring the jurors that they have nothing to worry about, that they have done a service of incalculable value, and that they should be very proud of themselves.  And, I end by telling them not to have second thoughts.

Deb Gilg has done a real service reminding us of the emotional needs of jurors. Federal trial judges should take her reminder to heart.

RGK

 Subsequent clarification:

I always excuse the jurors before I talk to them. They are free to talk to me or not. I am also circumspect in how exactly I answer the “did we do the right thing” question. To be perfectly clear, I never prejudge post verdict motions and never commit myself on such matters when I debrief the jury. Moreover, I never inquire into, and do not discuss, their internal deliberations.

May 8, 2014 at 3:19 PM

RGK

 

The US Attorney for the District of Nebraska responds regarding § 851 enhancements

Recall my earlier post laboriously titled Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?  In that post I highlighted Judge Bennett’s remarkable opinion that found that a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska.  Among other things, I also sought an explanation from Deb Gilg, our very able United States Attorney,

Mrs. Gilg came to my office last week to give me her response. Without intending to quote her, she essentially had two things to say that she hoped I would consider. First, Judge Bennett’s statistics showed that the District of Nebraska was using the § 851 enhancement like a scalpel rather than a butcher knife. In other words, if I had a legitimate concern, it ought to be directed not at the USA for Nebraska but elsewhere. Second, the US Attorney for the District of Nebraska has written procedures that govern when the government will seek such an enhancement. She asserted that those procedures were rationally related to such things as the nature of the offense and the personal characteristics of the offender including especially criminal history and the age and nature of the prior convictions. She assured me that the enhancement would never be employed to coerce a guilty plea.

I appreciate Mrs. Gilg taking the time to respond to my concerns. As a side note, I particularly enjoy her candor and sense of humor.

RGK

Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?

Judge-BennettAlthough we often disagree, Mark Bennett is a dear, dear friend. More relevant to this post, he is one of the nicest, most intellectually honest, smartest and prolific of all federal trial judges. He has written an opinion regarding disparity in drug sentencing regarding section 851 enhancements for prior drug sentences. Mark’s opinion is featured in Professor Berman’s preeminent sentencing blog here. From London, I can see that the opinion has already generated 22 comments on SL&P. With all this in mind, here is my take:

This opinion is one of the most important federal sentencing decisions to be issued by any court at any time. It highlights dramatically and exactly what happens when we ignore unwarranted sentencing disparity whether that disparity is generated by judges doing their own things or by prosecutors using the Guidelines and statutory minimums as bargaining tools to extort guilty pleas from defendants who dare to say, “prove it.” Again, this is a big, big deal.

Pursuant to the penalty provisions set forth in 21 U.S.C. § 841(b)(1), enhanced penalties, including
increased mandatory minimum and maximum terms of imprisonment, apply if the
defendant has a prior conviction for a “felony drug offense.” “Felony drug offense” is
defined as “an offense that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44). These enhancements are usually referred to as
“§ 851 enhancements” because 21 U.S.C. § 851 establishes and prescribes certain
notice and other procedural requirements that trigger them.

Among other things, Mark found that a few miles (as between Sioux City, Iowa and Sioux City, Nebraska) can make a damning difference.  He writes:

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

Id. at slip op. p. 3 (emphasis added).

I have a lot of reactions to Mark’s opinion. But, here are my two strongest ones, framed in the form of questions.

  1. What the hell is going at the United States Attorney’s office in Omaha (and elsewhere) that allows disparities like this to exit–if a section 851 enhancement applies, why is the government not pressing it on a principled and consistent basis whether or not the defendant elects to go to trial?
  2. What, if anything, should the judges in Nebraska (and elsewhere) do to see to it that such disparities are reduced?

I trust that Deb Gilg, our very able United States Attorney, will have an answer to my first question. Once I have that, I will press hard  for an answer to the second one.

RGK

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