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August 22, 2019 Top Story

Judge's Ex Parte Meeting with Jurors Sparks Retrial

Trial court neglected best practices in addressing jury’s security concerns

By Jonathan R. Engel

A trial judge’s meeting with jurors without counsel present to discuss certain jurors’ concerns about the defendants’ courtroom behavior warranted a new trial. The court of appeals held that the ex parte meeting and the trial judge’s inflammatory comments impacted the jury’s ability to make a fair decision. ABA Section of Litigation leaders note the troubling appearance of impropriety that can arise when a judge fails to follow best practices in communicating with jurors.

A court held that a trial judge who speaks to jurors without counsel present lacked the ability to make a fair decision

A court held that a trial judge who speaks to jurors without counsel present lacked the ability to make a fair decision

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Ex Parte Meeting Results in Convictions Being Vacated

During a criminal trial for nonviolent offenses, some of the jurors expressed concerns about the courtroom behavior of two of the defendants. A group of jurors asked to speak with the trial judge about their security concerns. The judge did not require the jurors to write down their inquiry or discuss the issue with counsel beforehand. Instead, he went into the jury room and discussed the jurors’ concerns with them directly.

One of the jurors told the judge about the defendants “lollygagging” and staring at the jurors at the end of the day when they were walking to their cars. The juror said she felt uncomfortable because of the defendants’ behavior. The judge stated that this was “disturbing,” “inappropriate,” and suggested assigning security for the jury’s safety. The judge further commented that the defendants’ behavior was unusual in his long experience as a judge.

After the meeting with the jurors, the judge told counsel about the substance of the meeting and told the defendants’ attorneys to instruct their clients “to stay the hell away from the [jury].” According to the court of appeals, the judge’s summary to counsel was incomplete because it downplayed the judge’s concern expressed to the jury about the defendants’ behavior and did not include some of the charged language used by the judge. Although a record of the meeting between the judge and the jurors was made, a transcript was not provided to the defendants’ counsel at that time.

Counsel for the defendants moved for a mistrial based on concerns that the jury’s ability to make a fair decision was impacted by the ex parte meeting. The trial judge denied the motion, and the defendants were found guilty. The U.S. Court of Appeals for the Second Circuit found in United States v. Mehta that the defendants’ counsel should have been present at the meeting and should have been heard on how to respond to the jurors’ concerns beforehand.

Best Practices for Answering Jury Questions

The best practice for answering any jury inquiry is to require the jury to put it in writing. Counsel then should have an opportunity to be heard by the trial judge on how to respond to that inquiry. “When the judge went into the jury room to hear the concern of the jurors, that is when the court compromised its ability to maintain an impartial jury,” says Michael T. Dawkins, Jackson, MS, chair of the Ethics Subcommittee of the Section of Litigation’s Criminal Litigation Committee. “Best practice is to require the juror to put the inquiry into writing and for the court to present that to counsel. That gives counsel the opportunity to make a record of how the judge should address the concern of the jury,” recommends Dawkins.

Failure to follow best practices in dealing with jury inquiries can give the impression of improper conduct. “The ex parte meeting gave the appearance of impropriety, which is hard to overcome,” stresses Andrew P. Atkins, Raleigh, NC, cochair of the Section’s Young Advocates Committee.

When a meeting with the judge is required, jurors should be interviewed individually with open ended questions to balance the safety and impartiality of the jury. “Typically, it would be better to talk to the jurors one at a time to evaluate the safety issues, instead of one juror speaking for all of the jurors,” says Dawkins. “Each juror should be asked open-ended questions to truly get the perception of each juror as to whether there was a safety concern. This would help maintain an impartial jury because one juror is having less of an opportunity to prejudice the rest of the jurors,” continues Dawkins.

Advising Clients on Appropriate Courtroom Behavior

Clients can help to avoid improper interactions with judges and jurors with appropriate planning and coaching by their counsel. Clients risk a poor outcome in their case if their demeanor or actions are taken the wrong way. “Defendants are being watched all the time and courtroom behavior can have an impact on the jury consciously or subconsciously,” says Atkins. “It is important for attorneys to stay with their clients at all times, if that is possible, and coach them on what is and is not appropriate,” urges Atkins.

Counsel should also be mindful of their clients’ body language and what message it projects to the jury. “Even a client’s nonverbal communications with the jurors should be a consideration. That was probably a big part of what was happening here,” offers Dawkins.


Jonathan R. Engel is a contributing editor for Litigation News.

Hashtags: #expartecommunication, #jurytrial, #criminalpractice, #clientcoaching

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