The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
OCTOBER 25, 2007Œ
OPINION PUBLISHED NOVEMBER 1, 2007
BeforeŒŒ
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 06-3517 & 06-3528
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE E. WARNER AND
GEORGE H. RYAN, SR.,
Defendants-Appellants.
Œ
This Order was originally released in typescript on October 25,
2007.
ŒŒ
Hon. Joel M. Flaum and Hon. Ilana Diamond Rovner took no
part in the consideration or decision of this matter.
2 Nos. 06-3517 & 06-3528
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02-CR-506-1, 4—Rebecca R. Pallmeyer, Judge.
____________
ORDER
On August 28, 2007, defendants-appellants filed a
petition for rehearing with suggestion for rehearing
en banc, and on September 11, 2007, plaintiff-appellee
filed an answer to the petition. The panel has voted to
deny the petition for rehearing. A vote on whether to grant
rehearing en banc was requested, and a majority of the
judges in regular active service have voted to deny the
petition. Judges Posner, Kanne, and Williams’s joint
opinion dissenting from the denial of rehearing en banc
is appended.
The petition is therefore DENIED.
POSNER, KANNE, and WILLIAMS, Circuit Judges, dissent-
ing from the denial of rehearing en banc. The panel
opinions are long, but the essential case for rehearing
en banc can be gleaned from the 18 bullet points in the
dissent from the panel majority opinion:
! 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.
Nos. 06-3517 & 06-3528 3
! Although the court’s intent was not to make the
jurors’ names public, that effort was compromised
when the jurors’ 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—contrary to the court’s instruction—brought into
the jury room in an effort to persuade the recalci-
trant juror to change her position.
! A reporter for the Chicago Tribune advised the
district court during jury deliberations that the news-
paper’s research 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. Attorney’s Office to con-
duct 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.
Attorney’s Office.
! During the five-day hiatus in jury deliberations,
the exposé 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.
4 Nos. 06-3517 & 06-3528
! 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 alter-
nate jurors was begun.
! Through the judge’s examination it was deter-
mined that a majority of jurors had provided false
answers under oath and could face criminal prosecu-
tion. 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 repre-
sent 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.
United States v. Warner, No. 06-3517, 2007 WL 2363220,
at *34-35 (Aug. 21, 2007) (Kanne, J., dissenting). “To
Nos. 06-3517 & 06-3528 5
describe the circumstances surrounding the jury man-
agement and jury deliberations summarized above as
‘nothing unusual’ is to simply turn a blind eye to the
realities of what occurred.” Id. at *35.
We agree with the panel majority that the evidence of
the defendants’ guilt was overwhelming. But guilt no
matter how clearly established cannot cancel a criminal
defendant’s right to a trial that meets minimum stan-
dards of procedural justice. “If the police, after arresting
[the defendant] and obtaining an eyewitness identifica-
tion of him plus his confession, had taken him directly to
the penitentiary on the ground that a trial would be a
waste of time for someone so patently guilty, he would be
entitled to release on habeas corpus; he would have been
deprived of his liberty without due process of law.”
Walberg v. Israel, 766 F.2d 1071, 1074 (7th Cir. 1985). Or
“if the parties stipulated to trial by 12 orangutans the
defendant’s conviction would be invalid notwithstanding
his consent, because some minimum of civilized procedure
is required by community feeling regardless of what the
defendant wants or is willing to accept.” United States v.
Josefik, 753 F.2d 585, 588 (7th Cir. 1985); see also United
States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). The
Supreme Court has held that a judge may not grant a
directed verdict in a criminal case no matter how over-
whelming the defendant’s guilt, United States v. Martin
Linen Supply Co., 430 U.S. 564, 572-73 (1977), and that “a
criminal defendant tried by a partial judge is entitled to
have his conviction set aside, no matter how strong the
evidence against him.” Edwards v. Balisok, 520 U.S. 641,
647 (1997). Likewise if the jury is partial, as we noted
just last month in United States v. Vasquez-Ruiz, No. 06-
2180, 2007 WL 2695639 (7th Cir. Sept. 17, 2007), and
perhaps if it is just plain befuddled. Cf. In re Japanese
Electronic Products Antitrust Litigation, 631 F.2d 1069,
1084-86 (3d Cir. 1980).
6 Nos. 06-3517 & 06-3528
This case is within the orbit of these principles, as the
panel majority seems to have sensed; for while it pointed
out that a number of objections to the conduct of the
trial had been waived, it went on to discuss those objec-
tions and satisfy itself that they were unfounded or that
any errors identified by them were harmless. But harm-
lessness is not the test of reversible error when a cascade
of errors turns a trial into a travesty.
Against this it will be argued that ours is an adversary
system, that a judge is just an umpire, and that it is not
his or her business what procedures the opposing parties’
lawyers want the trial to be governed by. But these are
at best half-truths. There is an independent judicial
interest in the proper functioning of the adjudicative
process. That interest is at its zenith in a criminal jury
trial.
We are also concerned that the panel majority opinion,
unless set aside, will be read as an endorsement of laissez-
faire appellate review, and that its discussion of the
merits of the issues that it thought were waived or in-
volved only harmless errors will have the force of prece-
dent in future cases. The opinion signals an excessively
tolerant attitude toward the management decisions of
trial judges, as when it says that “the fact that the trial
may not have been picture-perfect is, in itself, nothing
unusual,” 2007 WL 2363220, at *1. That is a misleading
metaphor. A picture-perfect trial, especially a picture-
perfect jury trial, is not only unusual; it is rarer than a
hen’s tooth. To suggest that the trial in this case may
have been, at worst, of merely average imperfection may
be taken by district judges in this circuit to mean that
this court is largely indifferent to how trials are con-
ducted, believing that to be the business of trial judges.
Mainly it is. But a federal trial judge has an independent
duty, enforceable if necessary by the appellate court, to
manage a jury trial with alert concern for the difficulty of
Nos. 06-3517 & 06-3528 7
eliciting reliable determinations from the lay persons
who make up a jury, and with recognition that the diffi-
culty grows rapidly with the length of the case.
Regarding the first point—the difficulty of eliciting
reliable determinations from the lay judges whom we
call jurors—one of the disturbing features of the trial in
this case was the investigation, and potential prosecution,
of jurors who had made misstatements on their juror
questionnaires. Not only did these misstatements cast
doubt on the jurors’ ability to serve, but the court’s
grilling of the jurors on this topic may have prevented
them from performing their duty conscientiously and
undistractedly. They faced potential prosecution by a party
to the case—the federal government. They may have
feared perjury charges, having seen first-hand in the trial
that the government prosecutes people for making false
statements. Had the government fully immunized the
jurors from prosecution, and had the jurors known this,
there is the considerable risk that they would have been
biased in favor of the government. But even if the jurors
did not know that any offer of immunity had been made,
they may have decided to convict the defendants in order
to avoid provoking the government’s ire and inviting a
retaliatory prosecution of them (the jurors). The govern-
ment’s attempt to immunize jurors itself suggests the
proceedings were broken beyond repair.
Regarding the second point—the problems associated
with the length of the trial—federal trial judges (bank-
ruptcy judges and magistrate judges as well as district
judges) recognize and discharge a duty of active trial
management. (So much for the umpireal analogy.) They
do not defer abjectly to the lawyers’ preferences regard-
ing length of trial, number of exhibits, wording of instruc-
tions, and so forth. They often override the strong prefer-
ences of the lawyers on both sides regarding such
matters. They are not umpires when it comes to manage-
8 Nos. 06-3517 & 06-3528
ment of the trial; they are directors of the drama that
we call trial by jury. (Trials are closer to theater than they
are to ball games.) Of course, management decisions are
committed to the trial judge’s discretion. But that dis-
cretion can be abused, as it was in this case, resulting
in a distended trial. The trial should not have taken
anywhere near the six months that it did take. Its exces-
sive length contributed both to the procedural errors
that marred it and to the failure of judicial correction of
those errors.
In civil cases, it is common for the trial judge, well
before the trial begins, to go over with the lawyers the
list of witnesses that each side intends to call. The judge
quizzes the lawyers carefully, asking with regard to
each name on the list: Why do you want to call this
witness? If you do call him, what (in general terms) will he
be testifying about? What will that testimony add to
your case? How lengthy would his testimony be and
what would he cover that requires that length of time? Do
you really need witness X to discuss topic A when you
already have Y to discuss it? Can the parties agree to a
stipulation in lieu of some of the evidence? Invariably
after such an interrogation, the witness lists are found
to be richly padded and the testimony sought to be
elicited from each witness found to be full of redun-
dancies and irrelevancies. The management-conscious
judge conducts the same inquiry with respect to the
documentary evidence that the lawyers want to present,
which also often exceeds the reasonable limits of jurors’
comprehension.
When as much of the padding of the case (that is, the
case as it had been prepared by the lawyers) as possible
has been removed, the judge asks the lawyers how much
time they anticipate for the trial, and then fixes a limit
on the length of the trial, usually a tighter limit than the
lawyers want. The limit is tentative, however—flexible, not
Nos. 06-3517 & 06-3528 9
rigid. As the trial proceeds, it may become apparent that
more time is needed, and if so the judge will raise the
limit.
Now it is true that the practice in criminal trials is
different, mainly because the scope of pretrial discovery
is so much more limited in criminal cases than in civil
ones. No statute or rule empowers the judge in a federal
criminal case to require witness statements or other
discovery to be provided ahead of time. On the contrary, 18
U.S.C. § 3500(a) provides that “no statement or report
in the possession of the United States which was made by
a Government witness or prospective Government wit-
ness (other than the defendant) shall be the subject of
subpoena, discovery, or inspection until said witness has
testified on direct examination in the trial of the case.”
Similarly, Fed. R. Crim. P. 26.2(a) requires production
upon motion of a statement of a defense witness (other
than the defendant) only after that witness has testified
on direct examination. These rules are motivated in part
by concerns with possible tampering with witnesses.
But although judges cannot force the lawyers to
exchange their witness lists early on, they can persuade
the lawyers to do so, and should unless there are con-
cerns with possible witness tampering. That case to one
side, the Manual for Complex Litigation § 32.24 (Fed.
Judic. Center, 3d ed. 1995) explains that “prosecutors
can generally be persuaded to make early production
since, by giving the defense an opportunity to prepare, it
will avoid interruptions at trial and may lead to a plea.”
The Handbook of Recommended Procedures for the Trial
of Protracted Cases, 25 F.R.D. 351, 399-402 (1960), recom-
mends pretrial conferences in complex criminal cases and
cites one judge as having said that he was able to shorten
a criminal trial from eight months to 59 days by holding
such a conference. Id. at 400. The Handbook recom-
10 Nos. 06-3517 & 06-3528
mends other measures as well that trial judges can use
to reduce the length of federal criminal trials, id. at 402-
03, as does the Manual for Complex Litigation, supra,
§§ 32.11, 32.22, 32.33, which underscores the importance
of the trial judge’s
insisting, within the limits demanded by fairness, that
the case move expeditiously to conclusion; and encour-
aging cooperation among counsel; while recognizing
counsel’s obligation of zealous advocacy, the court can
encourage them to confine themselves to issues
that are reasonably disputable and not to assert
rights that will have no impact on the outcome but
whose exercise can cause delay . . . . Although criminal
trials require greater circumspection in the exercise of
judicial control than civil trials, the judge should not
hesitate to exercise such control as is necessary to
maintain order and momentum. Unless the judge does
so, such a trial may take on a life of its own, jeopardiz-
ing due process rights and imposing unreasonable
costs and burdens . . . . The seriousness of the issues
at stake may lead the attorneys to try the case leav-
ing no stone unturned. This requires the judge to
assert and retain control of the proceedings in order
to move them to an expeditious conclusion. The
trial schedule is an important aspect of that con-
trol . . . . [W]hatever the schedule, interruptions
should be avoided . . . . Unnecessary witnesses and
exhibits should be eliminated as much as possible
during pretrial; some may, however, become unnec-
essary only after developments at trial. The judge
should exclude witnesses or exhibits that are ob-
viously redundant or otherwise unnecessary, and
should curtail redundant and needlessly lengthy
interrogation. [Emphasis added, citations omitted].
All the legal authority a trial judge needs for stream-
lining a criminal trial is the judiciary’s inherent authority
Nos. 06-3517 & 06-3528 11
to manage trials with due regard for eliciting intelligent
consideration of the issues by the jurors, plus Rule 403
of the Federal Rules of Evidence, which allows the judge
to exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” As the Manual for
Complex Litigation points out, Rule 403 is enforced most
effectively when it is applied before the trial begins, so as
to avoid lengthy sidebars. Motions in limine are of course
common, and frequently granted, in criminal as in civil
trials.
We have authorized the trial judges in criminal trials
to place time limits on testimony. United States v. Vest,
116 F.3d 1179, 1186-87 (7th Cir. 1997), while pointing
out that they “are best used as guideposts rather than
deadlines in criminal trials, and . . . are no substitute for
involved trial judges who must always shepherd trials
along, curtailing repetitive, irrelevant and immaterial
questioning.”
None of these powers to prevent unduly protracted trials
has to lie dormant until awakened by a motion. The
importance of the trial judge’s vigorous exercise of his or
her powers lies in the fact that a trial of the length of the
trial in this case places excessive strain on the jury
system. It is, to begin with, difficult to assemble a compe-
tent jury if you warn the prospective jurors that the trial
may go on for six months. In fact the judge in this case
warned that it would last “only” four months. We do not
know how the jurors felt when they discovered that their
tour of duty had been extended without forewarning or
their consent.
Moreover, the longer the trial, the less likely the jury
is to be able to render an intelligent verdict. Jurors be-
12 Nos. 06-3517 & 06-3528
come overwhelmed by the volume of evidence and
numbed by its repetitiousness. Their attention flags;
their minds wander; the witnesses—there were more
than a hundred in the trial of the two defendants—get
mixed up in the jurors’ minds, or forgotten; the profusion
of exhibits—there were more than a thousand—makes
the documentary record unintelligible. The impressions
created by the closing arguments are likely to wipe out
everything that went before. Jury comprehension has been
found to diminish after a mere 20 days of trial. Richard
Lempert, “Civil Juries and Complex Cases: Taking Stock
After Twelve Years” 20 (Center for Research on Social
Organization Working Paper Series #488, Nov. 1992),
http://deepblue.lib.umich.edu/dspace/bitstream/
2027.42/51254/1/488.pdf, visited Sept. 21, 2007; A Hand-
book of Jury Research § 3.02(c), p. 3-6 (Walter F. Abbott &
John Batt eds. 1999).
Twenty days and up happens also to be the top category
of federal trials by length, and fortunately few federal
criminal trials last that long. Annual Report of the Director
of the Administrative Office of the United States, 2006,
tab.T-2, http://www.uscourts.gov/judbus2006/contents.html
(visited Sept. 21, 2007). Why did this one? What was
special about it? The prominence of defendant Ryan? That
is not a proper reason in a legal system that aspires to
equal justice for all.
A study in which jurors in long (more than 20 days) and
short (1 to 6 days) federal trials (albeit civil rather
than criminal) were interviewed found a number of
disquieting differences. Jurors in the long trials were
substantially more likely to be retired or unemployed
and substantially less likely to have a college education.
Nearly three-fourths of the jurors in the lengthy trials
said the evidence was “difficult” or “very difficult” to
understand, compared to 30 percent who reported the
same in short trials. Of course the length of the trial might
Nos. 06-3517 & 06-3528 13
be correlated with the complexity of the evidence, and
the latter might be the befuddling force. But this would
not adequately explain why twice as many jurors in long
than in short trials reported their attention wandering
during the presentation of evidence either “occasionally” or
“quite a lot,” and why more than twice as many (amount-
ing to almost half of all the jurors who were interviewed)
found it difficult or very difficult to understand how they
were supposed to reach a verdict. Joe S. Cecil et al., Jury
Service in Lengthy Civil Trials 1, 9, 11-13, 28 (tab. 7), 33
(tab. 8) (Fed. Judic. Center 1987).
So now imagine jurors’ mental state after six months,
bearing in mind that memory loss and the psychological
or cognitive problems of jurors in a super-long trial
compound the first problem, the difficulty of recruiting
competent jurors for protracted trials: a less intelligible
trial is heard by a less capable jury. The longer the trial,
moreover, the likelier jury misconduct becomes. The
jurors become bored, impatient, irritated; the judge’s
instruction against discussing the case before the jury
retires to deliberate becomes increasingly irksome and
likely to be disobeyed.
And the parties (more often the defendant than the
prosecutor, since a conviction is a more likely outcome
of a federal criminal trial than an acquittal) lose, as a
practical matter, much of the protection that the judge
is supposed to provide against jury misconduct. Imagine
how a district judge who has spent six months presiding
at a trial, doubtless bored to tears much of the time by
its meandering pace, feels about the prospect of grant-
ing a mistrial and thus condemning herself (unless the
parties settle) to the agony of trying the same case over
again. And if the first trial wasn’t boring, the second has
got to be excruciatingly so since the judge is hearing all
the evidence for the second time. So can a defendant
who moves for a mistrial at the end of a six-month trial
14 Nos. 06-3517 & 06-3528
hope for a fair shake? The district judge seems to have
been influenced in denying a mistrial by concern—unre-
lated to the merits of declaring a mistrial—with the
difficulty of impaneling an impartial jury for a second trial
when the first trial had received so much publicity, in no
small part because of its length and its management
problems. She said: “I have before me—nobody has
called it this, but this is a motion for a mistrial at this
point. If I grant this motion, these defendants are going
to be tried again. I don’t—I am just—I am really wonder-
ing whether if I grant the motion for a mistrial, I am
effectively saying it isn’t possible to pick a jury for this
case.”
We are not alone in our concerns about protracted trials.
“Exceedingly lengthy trials lead to reduced concentration
and recollection of events on the part of all participants,
particularly witnesses and jurors. In very long cases,
exhaustion may diminish everyone’s performance. The
quality and representative nature of the jury may be
reduced by the fact that many citizens—often the most
competent—are unable or unwilling to take the time to
sit for cases lasting weeks or months.” Gordon Van Kessel,
“Adversary Excesses in the American Criminal Trial,” 67
Notre Dame L. Rev. 403, 478-79 (1992); see also “Principle
12: Courts Should Limit the Length of Jury Trials
Insofar as Justice Allows, and Jurors Should Be Fully
Informed of the Trial Schedule Established,” in American
Bar Association, Principles of Juries and Jury Trials
(Aug. 2005); Patrick E. Longan, “The Shot Clock Comes to
Trial: Time Limits for Federal Civil Trials,” 35 Ariz. L.
Rev. 603, 703-07 (1993). Arizona offers extra compensation
to jurors who serve for more than 5 (!) days. Ariz. Rev.
Stat. § 21-222(C).
The role of the courts of appeals in protecting jurors
and litigants from excessively protracted criminal trials
that strain the capacities of jurors, and by doing so
Nos. 06-3517 & 06-3528 15
undermine procedural justice, merits plenary consider-
ation by this court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-07