Would you want to try a case to a jury before this federal trial judge?

The Washington Post has a detailed but generally flattering article on Senior U.S. District Judge James R. Spencer. The judge is presiding over the corruption trial of former Virginia governor Robert F. McDonnell and his wife, Maureen.

The piece in the post is entitled, McDonnell judge presides with humor and impatience. I urge you to read the article. Afterwards, let me know whether you would want to try a case to jury before Judge Spencer. I am interested in knowing whether trial judges who preside with an edge or a flair in jury cases scare trial lawyers.


Where are they now?

Oprah had (or used to have) a TV program entitled “Where are they now?” The show features celebrities like Tom Green or Nicole Richie who may have seemingly dropped off the face of the earth. The production provides an update on that person. This post is sorta like that, although much, much darker.

In 1984, Jeff Jacobsen and I represented Platte Valley Harvestor in a difficult farm case about alleged damage to dairy cattle. Picture the big blue silos you see on farms. That’s what our client built and installed after buying the parts from the manufacturer. The dairy cattle were feed out of that structure.

Jeff is one of the best and most experienced trial lawyers in Nebraska and perhaps the funniest lawyer I know. He had the insurance defense on the negligence claims. Because there were warranty claims that were not covered by insurance and the claims were large enough to sink the business and then some, I defended our client on those issues.

We had a long and contentious jury trial in Furnace County, Nebraska. I am not proud of the fact that Jeff had to restrain me from punching our opponent in the mouth after trial one day. The essential claim against our client was that the big blue structure our client built for the farmers had poisoned the dairy cattle such that they milk production was dramatically reduced. Throughout the trial the plaintiffs mentioned their “baby Jason.” By the time of trial, the kid was certainly no longer a baby. He was about 13 years old.

The jury came back for the farmers on the negligence claims, but the judge pitched the warranty claims. Jeff appealed and a young and  very bright associate of Jeff’s by the name of Steve Russell wrote the portion of the brief that dealt with the negligence claims and I wrote the portion of the brief dealing with the farmers cross appeal on the warranty issues. The Supreme Court reversed the jury verdict for the plaintiffs, and affirmed the trial judge on the warranty claims.

In short, we won a complete victory. See Agristor Credit Corporation, a foreign corporation, Appellee, v.Fernan Radke and Estella L. Radtke, Third-Party Plaintiffs, Appellants and Cross-Appellees, Platte Valley Harvestore, Inc., a corporation, Third-Party Defendant, Appellee and Cross-Appellant, A.O. Smith Harvestore Products, Inc., a corporation, Third-Party Defendant, Appellee, 356 N.W.2d 856 (1984).

With the foregoing by way of introduction, I now turn to the “where are they now” portion of the post. I suppose I could write about some of the other participants, but I instead concentrate on only two.

Steve Russell: Not long after Steve wrote the great brief, he left Jeff’s firm when he was recruited to be an Assistant United States Attorney in the Lincoln office. For well over 20 years now, Steve has distinguished himself as one of the three or four best federal prosecutors we have in Nebraska. Tall, good-looking, well spoken but in the language of common people, Steve gets tough cases and almost always convinces the jury to convict. Among other things I particularly respect about Steve is that he is eminently fair to defendants and their counsel. Even if he has an advantage he won’t press it if he believes it would be unfair to do so. He believes in cutting square corners. Yet, he is tough as nails.

Baby Jason:  My writing skills, such as they are, cannot adequately do justice to Baby Jason. So, I will simply quote part of the New York Times article about him that describes his activities about six years after our trial. While you should read the entire account, the beginning of the article reads this way:

A 19-year-old man who had moved to Queens from Nebraska two weeks ago was charged yesterday with killing his 6-day-old son, dismembering the body and then feeding it to a German shepherd he was training as a guard dog, the police said.

Detectives said yesterday that the baby’s crying early Friday morning woke the father, Jason Radtke, who took the infant out of a crib and began to walk him. When the baby suddenly wet him, Mr. Radtke became enraged, the police said, and threw the child to the floor, killing him.

Mr. Radtke is believed to have then dismembered the baby’s body with a razor and left the remains ”in a position to be consumed by the German shepherd,” Capt. John Creegan of the New York detectives said.

I wrote this post in ABQ. That’s where “Breaking Bad” was filmed. By the way, I have long ago concluded that “the Moon is [not]  in the seventh house.” Nor do I believe that “Jupiter [has] align[ed] with Mars.” But, that is probably just me.

Oh, and have a nice day


My idea of the proper “emoticon” for this post is shown below:

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.


 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



When a guilty verdict is a good thing for a defense lawyer

While I think jury trials are horribly inefficient in this era of efficiency above all else, I respect the common sense of jurors. In fact, I am in awe of the collective wisdom of jurors. But, sometimes, things go awry.

Recently, a jury returned a verdict of guilty in a manslaughter case where a man was charged with killing his wife. The verdict was guilty, but, for the defense, that was a good thing.  A reporter was there to catch and release this fascinating story for the rest of us:

First they said “guilty.” Then, in a stunning reversal, a state Superior Court jury acquitted Robert Bell of all charges in the December 2012 shooting of his wife.

Just after 12:35 p.m. Tuesday, jury forewoman Jody Bayer announced they had found the 64-year-old defendant guilty of first-degree manslaughter for killing Svetlana Bell at their New Fairfield home. But that verdict then set off a series of twists and turns that had courtroom observers on the edge of their seats, asking each other what was happening.

While jurors were being individually polled, one asked a question about the process of delivering a verdict in a case where the killing itself was never in dispute and the defense was based on a claim of self-defense. It soon became clear that the jurors were uncertain if they had made a mistake.

Judge Robin Pavia sent them back into the jury room, and following an exchange of notes with them and conferences with attorneys, said she was not accepting the guilty finding. She then directed jurors to resume deliberations.

They returned 10 minutes later, about an hour after their guilty finding, and pronounced Bell not guilty.

John Pirro, Jury convicts, then acquits Bell in manslaughter casestamfordadvocate.com (December 3, 2013).

In short, the jury believed that they first had to find the defendant guilty of the killing before they could find him not guilty by reason of self-defense. That is not entirely crazy.

The defense lawyer said it best. “‘To have your heart fall with them announcing a verdict of guilty, and then to realize it was simply they had not fully announced their verdict … It was kind of a death by degrees, and then elation,’ defense attorney John Gulash said afterward.”

There is an important lesson or two to be learned from this case for trial lawyers and trial judges alike. For you experienced practitioners, tell us what those lessons might be.


PS Thanks to Gary Hochman for the tip.

A stunning courtroom

This week and next, I have the privilege of using  the stunning old but restored federal courtroom in Sioux City, Iowa to try a jury case. It is pictured below:

Photo credit: Library of Congress, Prints & Photographs Division, photograph by Carol M. Highsmith [LC-DIG-pplot-13725-01364 (digital file from LC-HS503-489)]

Photo credit: Library of Congress, Prints & Photographs Division, photograph by Carol M. Highsmith [LC-DIG-pplot-13725-01364 (digital file from LC-HS503-489)]

Even during the depression, the People instinctively understood that federal courtrooms should be both practical and beautiful at the same time. This Iowa federal courtroom is an absolute treasure.


How big should a civil jury be?

Today, I pick a civil jury for a trial that will last about six trial days. I spent last evening getting up to snuff on the motions in limine.

We summoned 17 jurors. I will put them all in the box and manipulate the strikes if we have to pitch any of them for cause. Putting them all in the box will increase my jury utilization statistics.

I hope to seat 8 or 9 jurors after the lawyers finish exercising their peremptory challenges. Unlike all of my colleagues in the District of Nebraska, I almost never use a 12-person jury in civil cases.

I wonder what civil trial lawyers think about juries of less than 12. Let me know what you think.


My simple (minded) answer to a simple question

Yesterday, I asked if jurors in criminal or civil cases should be allowed to question witnesses. That post generated a good discussion. I will tell you what I do and why I do it in a moment. I’ll give you some initial observations before I explain my practice.

First, my esteemed colleague from Nebraska, Judge Warren Urbom, widely regarded as one of the best trial judges in the nation, has been a proponent of jury questioning for several decades. Here is what Jan Crawford and her fellow reporters wrote in the Chicago Tribune, in the “On Law” section, on March 29, 1994 regarding Urbom and juror questioning in a high-profile criminal case that Warren was trying in Chicago:

By allowing jurors to question witnesses, visiting U.S. District Judge Warren K. Urbom has set a precedent for federal jurists here.

More importantly, the Lincoln, Neb., senior judge, who is known for his legal acumen and fairness to litigants, said he hopes inquisitive jurors will fill any “holes in the evidence.”

“They have questions, too, and they want the opportunity to ask them,” said Urbom, in town to preside at the bombing conspiracy trial of Herbert “Mickey” Feinberg, an associate of convicted pornographer Reuben Sturman.

The case stems from a 1992 plot gone awry to extort money from several Chicago adult bookstores. Instead, a pipe bomb exploded prematurely, killing one bomber and injuring another.

Most of the jurors’ questions in the continuing trial-funneled through Judge Urbom, who poses them to those on the stand-have been reserved for Martin Gavin, a member of the police bomb squad. He told of very gently recovering a live pipe bomb from the grisly scene at Dearborn and Division Streets.

“It fell out of a rolled-up pair of pants (taken by firefighters from a bombed-mangled car) and right onto my foot,” Gavin deadpanned.

 A 24-year veteran of the bench, Urbom said he decided to allow jurors to ask questions in both civil and criminal cases-the latter with the approval of counsel-as a logical extension of the jury’s fact-finding mission.

So the experiment began, and the 8th Circuit Court of Appeals has allowed Urbom to let jurors speak up. But that court, Urbom conceded, “is not enamored with the idea.”

Second, there is little doubt that allowing jurors to ask witnesses questions (orally or in writing) would increase juror satisfaction. That said, I have not seen any convincing empirical evidence that jurors who are able to ask questions render better verdicts than jurors who are not able to ask questions.

Third, I am not convinced that because federal trial judges can ask questions that means jurors should be able to do so too. After all, federal trial judges are legally trained, jurors are not. Anyway, most federal trial judges that I know ask very few questions of witnesses during jury trials. In short, it is a false analogy to compare judges to jurors.

Fourth, and most importantly, Judge Urbom is quoted in the Crawford article as saying that he hoped inquisitive jurors would fill any “holes in the evidence” through the device of jury questioning.  That is precisely what I don’t want to happen.

As Jeff Gamso, a very experienced criminal defense lawyer, stated in his comment (October 30, 2013 at 10:13 am) we have an adversarial, rather than an inquisitorial, process. Jury questioning can (and does) change the nature of the process. For example, consider this comment from a former juror to my post on this subject:

I recently served on a criminal jury in Nevada. Jurors are permitted to write questions, submit them to the court, and the attorneys and judge go in the back room and I assume argue over which are to be answered because the judge decides which ones get answered and the others are just tossed. The question are indeed identified to the judge and counsel by juror name and number.

I found the process to be important because a number of very good legal questions went unasked by the prosecution, I assume due to lack of experience. Questions to expert witnesses such as “Are you an expert in forensic psychiatry (expert was testifying on the subject) and is there a certification given in that discipline? ” Pretty basic stuff you’d expect one side to use to impugn the other, but was not asked by counsel. Some of the questions made the witnesses squirm because they were so on point.

trader says: October 30, 2013 at 3:52 pm

Put bluntly, “filing in holes” in the evidence is not the proper function of jurors, so say I.

There you have it. I don’t allow jurors to ask questions orally or in writing. That’s true even if the lawyers like it!

But, here is a secret. When I was a young judge, I was just too damned afraid of the loss of control to allow jury questioning. I had no highfalutin reasons for my decision. Now, I am too old to change. Frankly, if this post has any real significance, it is in that truth (Kopf was too scared to allow the practice when he was a young judge and he is too old now to change) that you will find it. That’s “legal realism” at its purest, my friends.


A simple question

Image credit: Sketchdog per Creative Commons license.

Image credit: Sketchdog per Creative Commons license.

In a couple of hours, the lawyers will make their closing arguments in my criminal case. After that, the jury will deliberate and we’ll wait for the verdict. That has prompted me to think about trying cases to juries and a simple question. Should jurors in criminal or civil cases be allowed to ask questions of witnesses during trial?


Weather, juries and Xanax in the high plains

On May 14, 2013, Lincoln, Nebraska set a record high of 100 F. breaking the old record of 96 F. set in 1915.  This was the earliest in the season that Lincoln has seen 100 F. or higher based upon an analysis of 127 years of data (1887-2013).  Two days earlier, Lincoln set a record low of 31 F.  On May 1 and 2, 2013, Lincoln received 2.7 inches of snow with lightning and thunder.  High winds created blizzard conditions on I-80, the major east-west highway.  Two days before that temperatures were in the mid 80s.

Imagine you are a judge and want to select a jury for one of your  criminal cases. Realize, please, that many of the jurors in the “Lincoln jury wheel” will have to commute up to 170 miles from very remote places in central Nebraska to attend jury selection and trial in Lincoln.

Now visualize the judge’s conversation with the jury coordinator. He tells her to get enough jurors for a criminal trial to start on May 1, 2013.  The Speedy Trial clock is about to run.  The judge starts the conversation with the jury coordinator by suggesting that she might first want to look into a script for XANAX®.  That, dear reader, is the real world of federal jury trials in the high plains (even when there are no furloughs).


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