The Tenth Circuit Court of Appeals has decided that there is no need to swear in juries in the Tenth Circuit in order to uphold the convictions of criminal defendants. The WSJ Law Blog summarizes:
In August 2010, a federal jury in New Mexico convicted Gilbert Turrietta of assaulting a deputy U.S. marshal. (He bit a deputy U.S. marshal, who was executing a warrant for Mr. Turrietta’s arrest.) The trial lasted seven hours.
After the jury returned the verdict, Mr. Turrietta’s lawyer played his card. The judge had forgotten to swear in the jury, an oversight the lawyer, Charles E. Knoblauch, kept to himself for strategic reasons. Mr. Knoblauch asked the court to set aside the verdict, arguing that the absence of the oath deprived Mr. Turrietta of his Sixth Amendment right to trial by jury.
The Denver-based U.S. Court of Appeals for the 10th Circuit ruled Wednesday that Mr. Turrietta’s conviction stands, sworn jury or no.
To be fair, the reasoning of the Court is more nuanced than simply saying “juries don’t need to be sworn in.” However, that reasoning is in some ways worse than if they’d simply affirmed the conviction without opinion. Note the bolded passage below:
Even assuming the failure to administer the oath was constitutional error, the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice….
If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.
The problem is that this sort of gamesmanship happens all the time in civil practice. Defendants’ attorneys regularly sit on defective pleadings that are close to the Statute of Limitations, only to spring a motion to dismiss once the period for filing a claim has run. Plaintiffs’ attorneys regularly use procedural motions to get around jurisdictional limits that otherwise might force them to try their case on a longer docket, or in front of an unsympathetic court. The only difference here is that Gilbert Turrietta’s lawyer was honest about his reason for not notifying the court of their error.
But this passage from the court is even worse:
Surely there are cases where the benefit of the sworn jury will be heightened by the complexity of the law or the indeterminacy of the evidence. But if ever there were an occasion where our system could countenance conviction by an unsworn jury, where the ‘countervailing factors’ eclipse any potential unfairness flowing from the trial error, this is it.
This is an outrageous thing for a court to say. The court here is literally usurping the province of the jury by passing judgment on the guilt of the defendant. They’ve essentially created a de facto rule by which judges in the Tenth circuit should weigh the evidence produced at trial, and determine whether the defendant was “guilty enough” to render a failure to swear in the jury as reversible error on appeal.
It should be noted that the court’s reasoning is a far cry from the “no reasonable juror” standard that typically dictates motions for post-conviction relief from an adverse jury verdict. The Tenth Circuit isn’t asking whether a reasonable person would have believed the evidence proved the defendant guilty. The court is differentiating the seriousness of a constitutional error based on “how guilty” the defendant was proved at trial. It creates a grey continuum of potential criminal cases in which a reasonable juror could have found the defendant guilty, but “the complexity of the law or the indeterminacy of the evidence” renders a sworn jury a constitutional error only in those cases where the court feels the defendant was proven reealll guilty. And this is to say nothing of the fact that the court has made a nonsensical conflation between procedural and substantive error (i.e. challenging the sufficiency of the evidence vs. the satisfaction of procedural due process).
Perhaps it is true that the Gilbert Turrietta’s rights were not prejudiced by the failure to swear the jury in. But surely there is a more coherent legal basis on which to decide whether prejudice ensued than (a) the time at which a lawyer takes cognizance of a procedural error, or (b) “how guilty” the judge thinks the defendant was proved at trial. This is bad law. Unfortunately, it is all too common in the courtroom these days.
h/t Simple Justice