The opinion
In the
United States Court of Appeals
For the Seventh Circuit
OCTOBER 25, 2007*
Before * *
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.
*
This Order is being released in typescript. A printed
version will follow.
**
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 , KAN NE, and WILLIAMS, Circuit Judges,
dissenting 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 recalcitrant juror to change her
position.
• A reporter for the Chicago Tribune advised
the district court during jury deliberations that
the newspaper’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 conduct a background check
on all jurors.
• Jury deliberations were halted following the
Chicago Tribune disclosure and the hiatus
continued during th e 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, in deed, false
4 Nos. 06-3517 & 06-3528
answers had been given on a jury questionnaire
and that the sitting jurors were now under
investigation.
• 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 alternate jurors was begun.
• Through the judge’s examination it was
determined that a majority of jurors had
provided false answers under oath and could
face criminal prosecution. 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
represent 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 havin g 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
Nos. 06-3517 & 06-3528 5
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 describe
the circumstances surrounding the jury management 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 standards
of procedural justice. “If the police, after arresting [the
defendant] and obtaining an eyewitness iden tification 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 overwhelming 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
6 Nos. 06-3517 & 06-3528
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).
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 objections and
satisfy itself that they were unfounded or that any errors
identified by them were harmless. But harmlessness 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 involved only
harmless errors will have the force of precedent 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
Nos. 06-3517 & 06-3528 7
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 conducted, 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 eliciting reliable determinations from the lay
persons who make up a jury, and with recognition that the
difficulty 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 government’s attempt
to immunize jurors itself suggests the proceedings were
broken beyond repair.
Regarding the second point—the problems associated
8 Nos. 06-3517 & 06-3528
with the length of the trial—federal trial judges
(bankruptcy 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
regarding length of trial, number of exhibits, wording of
instructions, and so forth. They often override the strong
preferences of the lawyers on both sides regarding such
matters. They are not umpires when it comes to
management 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
discretion 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
excessive 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 redundancies and irrelevancies.
The management-conscious judge conducts the same
Nos. 06-3517 & 06-3528 9
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
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 witness
(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 th e lawyers to
exch ange their witness lists early on, they can persuade
the lawyers to do so, and should unless there are concerns
with possible witness tampering. That case to one side, the
Manual for Complex Litigation § 32.24 (Fed. Judic. Center,
10 Nos. 06-3517 & 06-3528
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),
recommends 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
recommends 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 encouraging 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, jeopardizing
due process rights and imposing unreasonable
costs and burdens. … The seriousness of the
issues at stake may lead the attorneys to try the
case leaving 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
Nos. 06-3517 & 06-3528 11
important aspect of that control …. [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
unnecessary only after developments at trial.
The judge should exclude witnesses or exhibits
that are obviously 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
streamlining a criminal trial is the judiciary’s inherent
authority 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
v alue 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.”
12 Nos. 06-3517 & 06-3528
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 competent 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 become
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/2027.42/5
1254/1/488.pdf, visited Sept. 21, 2007; A Handbook 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,
Nos. 06-3517 & 06-3528 13
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 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 (amounting 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
14 Nos. 06-3517 & 06-3528
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 granting 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 hope for a fair
shake? The district judge seems to have been influenced in
denying a mistrial by concern—u nrelated 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 wondering 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
Nos. 06-3517 & 06-3528 15
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
undermine procedural justice, merits plenary
consideration by this court.