Speed it up!
DAILY CONTROVERSY | Influential justice, in a dissent on George Ryan case, says jurors get overwhelmed by info in long trials This judge has three words for the trial lawyers . . .
Is a six-month trial inherently unfair?
Federal appeals court Judge Richard A. Posner thinks so.
(Rich Hein/Sun-Times)
He spent a little more than half of his 14-page dissent in the George Ryan case making that argument -- even though Ryan's own lawyers never made it.
Posner dissented last month from the 7th U.S. Circuit Court of Appeals' refusal to reconsider a ruling upholding former governor Ryan's conviction on corruption charges.
Asked what he thought about the judge finding a problem with the trial he never noticed in his year of looking for problems to challenge, former governor and Ryan lawyer Jim Thompson smiled and said, "It's interesting, isn't it?"
Posner's fellow appellate justice Diane Wood called Posner on it in her order Wednesday denying Ryan's request to stay out of prison while he asks the U.S. Supreme Court to hear his appeal.
"None of the arguments in the dissent ... has ever been advanced by the appellants," Wood wrote.
With a reputation as the most widely quoted appellate judge in America, Posner enjoys a stature that allows him, more than most federal judges, to interject his own opinions into his rulings and dissents. Experts disagree on how healthy that is for the legal system.
"Posner just took an opportunity to make a speech that he had wanted to make for a long time," said DePaul law Professor Leonard Cavise. "But nobody had made the argument, and, in fact, I don't think [Ryan's lawyers] thought the case took too long."
But Posner is right about long trials being unfair to defendants, Cavise and other experts said.
"I don't think many judges would disagree with him," Cavise said. "Any trial that goes on six months with thousands of documents and witnesses ... human beings are unable to process all of that information with an open mind. I think what he did was, he saw a problem in the case that the parties didn't see or just didn't choose to argue."
Northwestern University law Professor Steven Lubet agreed: "It's vintage Posner -- Posner is a penetrating intellect, and of course he sees issues other people don't, and he's not afraid to address them."
But Wood wrote that, because Ryan's lawyers never raised the issue, the Supreme Court justices won't recognize it.
"Just like Posner, the Supreme Court [justices] can do whatever they want," Cavise said.
Laurie Levenson, a former federal prosecutor now a professor at Loyola University School of Law in Los Angeles, successfully prosecuted an 11-month money-laundering trial and watched the 9-month O.J. Simpson trial. She argues length does not punish defendants.
"Six months? That's not even in the ballpark of exceptionally long trials," she said. "If that's going to be the standard, it's going to impair prosecutors' discretion about what kind of cases to bring. Judge Posner is a very smart man, [but] long trials usually work to the advantage of defendants, because jurors think if you can't try your case faster, there must be something wrong with it."
Among Posner's arguments why long trials are unfair:
"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 longer the trial, the less likely "competent," college-educated jurors will be able to serve, meaning "a less intelligible trial is heard by a less capable jury," Posner wrote.
Posner echoes the point made by Judge Michael Kanne, who dissented in the first appellate review of the case: Judges in a long trial become vested in their work and reluctant to discard a verdict and condemn themselves to repeating a lengthy trial.
Levenson takes issue with Posner's argument that a judge must go over the list of witnesses and exhibits with the lawyers and coax them into paring down the list to omit any potential duplication of testimony.
"That might be how he would try a case, but there are many judges who do not want to micro-manage a case," she said.
Posner's citations to other courts expressing concerns about trial length are sparse and mostly date from the O.J. Simpson era.
"There are a lot of assertions about the jurors losing interest, losing their ability to concentrate, but these are assertions about how juries behave," said Susan Bandes, a visiting professor at the University of Chicago. Such issues would have to be briefed and argued before the lower courts before they ever made their way up to the Supreme Court, she said.
Still, some experts say Posner knows better than Ryan's lawyers what issues might pique the interest of Supreme Court justices, and that perhaps he is assisting them by supplementing their arguments with one he thinks the high court might bite on.
