Impossible Verdict Case Gets Supreme Court Review

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By Nicholas Datlowe

April 26 — What happens when a jury is dismissed and then immediately re-empaneled after returning a legally impossible verdict was the focus of oral arguments before the U.S. Supreme Court April 26.

The justices expressed concern with the inefficiencies that would be created by a bright-line rule requiring a new trial.

They also seemed leery of a rule that would require a hazy inquiry into whether jurors had been prejudiced post-discharge.

“I have problems with both rules,” Justice Sonia Sotomayor said.

Accident, Impossibility

Rocky Dietz sued Hillary Bouldin for injuries suffered in a 2009 car accident. The jury found for Dietz, but awarded $0 damages—less than the $10,000 damages stipulated by the parties.

The judge dismissed the jury before realizing that the verdict was legally impossible. After a brief colloquy to determine whether jurors had been “contaminated” by outside information, the judge re-empaneled the jury, which then awarded Dietz $15,000.

But the Ninth Circuit below—joining the Second, Third and Seventh—said “there is nothing talismanic about the courtroom door,” and denied Dietz's request for a mistrial.

This holding put it at odds with the Eighth Circuit, which adopted the bright-line rule sought by Dietz.

Presence, Control, Parallels

Kannon K. Shanmugam of Williams & Connolly LLP, Washington, argued for a bright-line rule that focused on whether the jury had left the judge's “presence and control.” Shanmugam argued for Dietz.

But “what they're worried about” is that jurors may get “information that's going to be prejudicial to the defendant that they shouldn't have gotten,” Chief Justice John G. Roberts Jr. said. “Why doesn't it make sense” to “bring them back in and ask, just as the judge did here, have you talked to anybody about the case?”

The concern isn't actual prejudice, but the potential for influence, Shanmugam said.

Sotomayor noted that it's not uncommon for emotional families to be waiting outside of courtrooms, or for corrections officers to congratulate jurors on the verdict after discharge. “If we do a prejudice test, how are we going to ensure that that concept of a fair trial is wholesome enough?”

The answer is “very simple,” said Neal K. Katyal of Hogan Lovells US LLP, Washington, arguing for Bouldin.

“Power after discharge is parallel to the power before discharge,” he said. Notwithstanding all those influences, there was no question the judge could have resubmitted the question if he had only recessed, rather than dismissed, the jury.

“You say that whatever a judge can do, he can undo?” Justice Anthony M. Kennedy asked.

“Absolutely,” Katyal replied, but “tempered by the Constitution” and reason.

Efficiency, Prejudice

The justices appeared to be seeking out the most workable rule.

They were clearly concerned with the “big waste of money,” as Roberts called it, that would be required to have a whole new trial when a simple error was caught only after jury discharge.

Shanmugam pointed out that the court had never held that “efficiency alone is a sufficient justification for the exercise of inherent authority” necessary to recall a jury.

“Why not? Why not? Why isn't it?” Justice Stephen G. Breyer asked. “If it saves a lot of money, and that's the only difference, why don't we say the efficiency argument's what counts?”

“There really isn't much reason in terms of fairness not to” engage in a prejudice inquiry, Breyer added.

Katyal also pointed out the tolls that new trials might take on witnesses and victims, recalling the gruesome facts of the first case he argued before the court this term, Kansas v. Carr, 84 U.S.L.W. 4037, 2016 BL 14201 (U.S. Jan. 20, 2016).

On the other hand, the justices didn't seem convinced that Katyal's prejudice-inquiry test was the correct answer, either.

“I'm not sure you're the one that should be complaining about a rule that's not very clear,” Roberts said when Katyal attempted to argue that Shanmugam had, in the briefing, applied several shifting tests to the case.

“It seems to me to make some sense to say it's a bright-line rule. We don't want to waste courts' time, you know, figuring out whether there's adequate prejudice, how far is too far,” Roberts said.

But John F. Bash, arguing for the federal government on behalf of Bouldin, argued that the “prejudice standard comports with how this court always thinks about jury impartiality standards.”

He pointed out that courts engage in prejudice inquiries in “far more extreme circumstances,” including when jurors are bribed, actually exposed to extraneous information or sleep through the trial.

Inherent Powers

Shanmugam argued that, notwithstanding any potential for prejudice, courts simply lack the authority to recall juries.

He argued that the federal rules indicate that the court's authority is constrained after discharge.

Sotomayor challenged that, saying “we've routinely, though history, permitted district courts, when they think they've entered an erroneous order, to just rescind it.”

Shanmugam responded that they were constrained in the kinds of orders they could rescind, and said that it mattered whether there were “specific and conceivably adequate remedies for correcting an invalid or ambiguous verdict,” such as a new trial or a “streamlined” hearing under Federal Rule of Civil Procedure 60(a).

But the court's precedent on this point is “absolutely crystal clear: The existence of an alternative doesn't deprive inherent power,” Katyal responded.

Shanmugam also noted that at common law, courts were unable to recall juries. He cited to a long history of cases dating all the way back to 1608 saying as much.

Justice Samuel A. Alito Jr. pointed out that “all sorts of common law procedures,” even until the 19th century, “have been abandoned in modern practice.”

“In the absence of a long history, you should not be recognizing an inherent authority, at least absent some necessity,” Shanmugam said.

“But it has to be absolutely necessary,” Alito replied. “At one point jurors weren't allowed to eat during deliberation. The first trial judge to who said it might be a good idea to allow them to have lunch—was that absolutely necessary?”

Does Anyone Still Wear a Hat?

Justice Elena Kagan wondered if there weren't one major difference between jurors that have been discharged and those who are still empaneled.

“Once you are discharged, you just take off your juror hat psychologically, mentally, and you start thinking about a case in a different way, and you start even wondering whether, when you had your juror hat on, you were thinking about it in the right way.”

Bash analogized it to the bar exam. “You studied all the stuff, you remember it, but now the commercial paper information is, you know, receding from your brain in a way that it wouldn't before the bar exam.”

The lawyers in the room—including those on the bench—clearly found this analogy funny.

But “it's one thing to say when you get home and you go back to your spouse or your friends and you say, this is what we did, and they say, wow, I can't believe you did that. That's going to cause you to start to reconsider your verdict as a citizen, not with the juror hat on. But here it was a few minutes.”

Sotomayor pressed for a time limit. “Why can't we recall a jury six months later?”

“Once jurors have returned to their daily lives, they've probably spoken to friends and family about the case. They've taken off their jury hats for more than a de minimis period. It's so likely that there's going to be prejudice that we're just not going to allow it anymore,” Bash said.

He also noted that the entry of judgment provides a formal limitation on how long a court can wait to recall a jury.

When Is a Discharge Not a Discharge?

Early in the argument, Roberts complained that in the briefing, Shanmugam appeared to have backed off from a clear bright-line rule.

“I got to page nine of your reply brief, where you say, ‘A jury may remain effectively undischarged despite a judge's pronouncement of discharge,'” Roberts said. “There are cases where you agree that if the judge says you're discharged, they're not really discharged.”

Shanmugam attempted to clarify: “The question that we discuss at page nine of our reply brief is the question of what the definition of a discharge is.”

“Well, that's pretty lawyerly,” Roberts said, earning hearty laughter.

Not to be outdone, Shanmugam replied, “Thank you, Mr. Chief Justice.”

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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