Pulling aside the curtain to reveal how the wizard works

This will begin an intermittent series of posts regarding jury trials.   The posts will hopefully provide some food for thought on what really goes on with regard to jury trials in the federal courts.

Let’s start before the lawyers arrive to select the jury.  In virtually all federal courts, there is some sort of orientation, although how the orientations are conducted varies widely.  Over the last several decades, I have taken a very hands-on approach to jury orientation, and some might think my approach is unusual.   Anyway, here’s how I do it.

Initially, the prospective jurors see personnel from the Clerk’s office and are checked in.  They receive a briefing on practical things–like where to park–and sometimes are shown a video.  Then, they are brought to me.

I conduct my orientations in the courtroom where the trial will be held.   The lawyers are welcome to attend, but not participate.  The session is entirely informal and relaxed, and no recording is made.

I begin the orientation with a short talk.  I try to answer these questions:  What’s the constitutional reason for your being here?  How did you get on the list?  How is the typical jury trial conducted?  I explain voir dire, opening statements, witness examinations, and closing arguments.  I explain the burden of proof, who goes first and last and why that is so.  I tell the jurors not to worry about their safety, and explain that my name, telephone number and address are in the telephone book.  I explain what would happen if we had a security concern.  I explain how long they will serve, and our hours of work during trial.  I then have the jurors get up and walk with me into the middle of the courtroom.

We gather around the lawyers’ tables and peek into the computer hook ups, we examine the video screens, and push the “on” and “off” buttons on the microphones.  The jurors are told about interpreters and shown how the interpreters use the equipment situated next to the defense table.

The jurors will then see where the Marshals will sit if we are trying a criminal case.  We also talk about the roving Court Security Officers who will periodically enter the back of the courtroom and the fact that the CSO’s have earphones.

We show the jurors the camera that the United States Marshals Service uses to monitor the courtroom.  We also explain that since we are a pilot court for video recording, we have the capacity to video record trials.  Since the cameras are apparent, we tell the jurors whether the trial will be recorded or not.  If a video recording of a civil trial was expected, we would go into detail about camera angles, juror privacy and the uploading process.  We would turn on the video equipment and show the prospective jurors what a recording looks like.

Colleen, our courtroom deputy supervisor, sits in the witness box to illustrate to the prospective panel how the equipment works.  The prospective jury panel members gather around her as she illustrates and I yap.

Colleen, our courtroom deputy supervisor, sits in the witness-box to illustrate to the prospective jurors how the equipment works. The prospective jury panel gathers around her as she illustrates.  I yap.

Next, we walk over to and look into the witness-box.  The courtroom deputy (CRD) serves as a model and sits in the witness chair.  She manipulates the flat screen that permits the witness to draw things and display the drawing to the jury, the CRD explains the need for the witness to be close to the microphone, and she illustrates how the video presentation equipment (adjacent to the witness-box) can be used by the witness and a lawyer.

We then walk over to the locked door where the Marshals will bring in prisoners.  The jurors are told about the holding cells that are maintained in the middle of the building.

After that, we walk onto the clerk’s bench.  The CRD then shows the jurors her computer equipment, her timing equipment, her digital audio monitoring equipment and so forth.  Juror are told that we can provide them with battery operated headphones during trial to better hear soft-spoken people.  The head phones are demonstrated.  Digital audio recording rather than a court reporter is explained.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial.  This is pretty much the view that the prospective jurors get when the walk onto the clerk's bench.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial. This is pretty much the view that the prospective jurors get when they walk onto the clerk’s bench.

After that, 14 jurors are asked to sit in the jury-box to “test out the chairs.”   Use of the flat screens in the box as well as a large additional flat screen is explained.  The other prospective panel members gather around the jury-box.

We then walk up the stairs to the judge’s bench.  We can accommodate 17 jurors at a time.  The CRD sits in my seat and shows the jurors the computer equipment, panic alarm button, and toggle switches for the lights.  We talk about bench conferences, the reasons for them, and the “white noise” that will be pumped in when a bench conference occurs.

View from the judge's bench.   The prospective jurors go up on the bench during orientation and see what I see.

View from the judge’s bench.  All the prospective jurors go up on the bench during orientation and see what I see.












After all the jurors have gone up on the bench and looked around, we then go through the recessed door in the wood paneling where I enter and exit the bench.  We go down the steps behind the courtroom and into the jury deliberation room.

In the jury deliberation room, we talk about coffee, the refrigerator and the microwave, where the restrooms are located, the need for jurors to wear their identification badges while in the courthouse, use of the telephone and other practical things.  I explain why I don’t allow jurors to ask questions of witnesses during the trial whether orally or in writing.  We then proceed single file into the courtroom through the “jury’s door” just as they would go if trial were in session.

Colleen, our courtroom deputy supervisor, sits in judge's chair on the bench.  She shows the"panic alarm" and other "secrets" to prospective jurors while I provide the narrative.

Colleen, our courtroom deputy supervisor, sits in the judge’s chair on the bench. She shows the”panic alarm” and other “secrets” to prospective jurors while I provide the narrative.  Every prospective panel member goes onto the judge’s bench.

During all this time, I provide a running narrative of what the jurors are seeing and why they are seeing it.  I try to keep the talk light, and humorous but informative.  My mission is to make sure that when jury selection and the trial begin that the jurors are concentrating on important stuff rather than their physical surroundings.

In short, that’s how I do a jury orientation.  Is it worth the time and effort?   I know this, after I discharge jurors following the trial, I meet with them privately.  I have conducted these interviews for every jury trial I have ever conducted over the last 26 years or so.  I always ask how I could do a better job.   Almost without exception, jurors tell me that the “walk about” was the highlight and I should never drop it.  They say it reassured them, helped them understand and visualize the process and made them feel comfortable.


Kopf’s big blunder(s)


Photo Credit:  De Maus Collection, Alexander Turnbull Library, National Library of New Zealand.

Earlier, I said that I would blog about some of my screw-ups.  I start that process with this post about a huge mistake that I made some three years after I became a federal trial judge.

This big blunder revolved about an impassioned opinion explaining that a departure was warranted in a drug case because the defendant was a combat veteran whose drug dealing was caused by the horrible things he had witnessed.  See United States v. Perry, No. 4:94CR3035, 1995 WL 137294 (D. Neb. 1995) (the Sentencing Guidelines are sufficiently flexible to take into account the indisputable impact of the cruelty of war on a very young man who suffered through horrific events as a crew chief-emergency medical technician on an Army air ambulance in the Persian Gulf War).

There was only one problem.  The defendant had appropriated the experience of another soldier, hoodwinking me and several others.  When fellow vets who knew the true story heard about my touchy-feely decision, they contacted the press to straighten things out.  Headlines, a blistering editorial, a scalding editorial cartoon (see below) and universal condemnation ensued.   Sadly,  all the criticism was justified.photo

While I later corrected the error by sentencing the defendant to the prison term called for under the Guidelines, the damage had already been done.  I had given aid and comfort to the nuts who attribute to federal judges every sin under the sun.  More importantly, for the majority of citizens who are well-motivated, I provided a solid reason to doubt my judgment, and, by extension, the judgment of my colleagues.  The saying “lower than a snake’s belly in a wagon rut” perfectly captures how I felt.

“OK,” you say.  “So what?”  Aside from the considerable enjoyment that comes from another public flogging, what value does this post have to the study of the role of federal trial judges?  “Quite a lot,” is my response.   What follows are several lessons learned the hard way that inform my views about the proper role of a federal trial judge.

First, the axiom that we learn by doing is especially (and painfully) true for federal trial judges.   I came to the position with experience as a law clerk to a federal appellate judge, thirteen years of practice (including service as a special counsel appointed to prosecute the impeachment of Nebraska’s Attorney General), and then five years as a United States Magistrate Judge.  Unanimously, the ABA committee that evaluates federal judicial nominees thought me “well-qualified.”   Lesson One:  There is no amount of experience that trains one for the job of a federal trial judge–absolutely nothing.  The judge must learn his or her role by doing.   Finding the proper role is very much a result of the slow process of accretion.

Secondly, there is a lot of blather about doing “justice.”   That is frequently code for giving someone a break not clearly called for by precedent or rule.  Lesson Two:  The more the federal trial judge strays from applying “law” to do “justice” the more likely it is that something unexpected will pop up thereby creating a good reason to question the legitimacy of a life-tenured and unelected judiciary.

Finally, I have reread what I wrote in the Perry case.  My analysis of the law, while approaching the outer limits, was correct.  My grievous error was credulity–believing what the defendant said.   Lesson Three:  Skepticism is an integral component of the role of the federal trial judge.  Empathy, while necessary, is overrated.

George Bernard Shaw is reputed to have said something like the following: “A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing.”  I certainly hope that is true for the blunder described above is merely the tip of my iceberg.


(The cartoon is reprinted pursuant to a “one-time use permission” granted by the Omaha World-Herald.  Thanks to the OWH and Michelle Gullett, intellectual property manager for the paper.)

First Principles: The trial courtroom is not an abstraction

As I think about trying to discover the proper judicial role for the federal trial judge, it is helpful to remind myself that the courtroom is not an abstraction. It is a real place inhabited by flesh, blood and bones–including, all too frequently,  abject sorrow, seething anger, palpable hatred and unimaginable depravity.  Too often, when viewed from the appellate bench–and most particularly the Supreme Court–the trial courtroom is imagined in much the same way as Monet imagined his gauzy garden.

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