A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

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No Harm, No Foul — But How Do You Know If There Was Harm?

Yesterday, the U.S. Supreme Court agreed to hear a case that gives the Court an opportunity to clarify a longstanding ambiguity in harmless error law.  Even if a defendant’s procedural rights have been violated at trial, a conviction will not be reversed on appeal if the error was harmless.  However, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

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Budget Cuts Haven’t Meant Prosecution Cuts Here, Santelle Says

In case any criminals reading this are hoping to avoid prosecution because budget cuts are reducing the reach of federal prosecutors, their hopes are ill-founded – at least for now, according to James Santelle, the U.S. Attorney for the eastern district of Wisconsin.  

But down the road and even now in places other than eastern Wisconsin? Cutbacks in federal spending could and sometimes are translating into decisions not to prosecute cases, Santelle said. 

Speaking Tuesday at an “On the Issues” session at Eckstein Hall, Santelle told Mike Gousha, the Law School’s distinguished fellow in law and public policy, that the staff he oversees in offices in Milwaukee and Green Bay, has been reduced from about 80 several years ago to about 70 now. More cuts may lie ahead, he said.

But so far, the reduction has been accomplished without affecting decisions on who to prosecute, Santelle said. That hasn’t been true in offices of US Attorneys in some places around the country, where decisions on matters such as “smaller” drug cases or white collar financial crimes are being shaped by whether the office has adequate resources. He said a $1 million bank fraud in some instances may be below the threshold a prosecutor has set for bringing a case to court, given practical limits on how much can get done.

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