Trial Judge's Comment Not Sufficiently Prejudicial

December 19, 2012

Charles Irby appeared for jury selection, ready to fight against charges of committing various alleged tax crimes, including four counts of willful failure to file a tax return and one count of attempting to evade paying a tax. United States v. Irby, No. 11-60800, __ F.3d __ (5th Cir., Dec. 18, 2012). All was going according to plan, when the trial judge says the following:

"It's a civic duty, and the older circuit judge I used to practice under many, many years ago used to tell jurors, "You've got two things [sic]: You should vote, you should pay your taxes, and then serve on a jury. Three things that you should do to comply with your citizenship."

Mr. Irby was found guilty, and the court later ordered sentences of 60, 36 and 12 months, all to run consecutive to each other for a grand total of 108 months in prison. Not surprisingly, Mr. Irby complained on appeal that the district judge's pronouncement during jury selection violated Mr. Irby's constitutional "due process" right to a fair trial. As we know, the Supreme Court has repeatedly recognized that our Constitution is there to ensure that all citizens receive a "fair trial in a fair tribunal."

The Fifth Circuit Court of Appeals, however, held that Mr. Irby was not denied his right to a fair trial. The appellate court said that one single statement by the judge in jury selection was insufficient to demonstrate misconduct, where the trial lasted four days and the jury was ultimately instructed about the government's burden of proof and the presumption of innocence.

I admit it: I don't possess the breadth of wisdom of the three learned jurists on the Fifth Circuit panel who made this decision. But looking at this from my perch as a trial lawyer, the effect of the trial judge's robed pronouncement is particularly disturbing. My experience as a trial lawyer (both as a prosecutor and defense attorney) and as a citizen sitting several times as a prospective juror has taught me that common folk chosen from the venire walk into a federal courtroom with wonder and interest, capturing every sight and sound. The judge enters the room with dark robe stretching to the floor, and all are ordered to stand by the bold bark of the watchman. As all sit down in silence, the pomp of the experience begins to settle in, and all listen to the person designated as the seat of wisdom for these proceedings.

Hyperbole? I don't think so . . . at least not in this situation. The central issue for this man at his trial focused on an allegation of failure to file taxes. We, and surely any jurist and prosecutor assigned to work on this case, must presume this citizen was entitled to present his defense that countered the necessity of filing a tax return and provide his answer as to why a tax return had not been filed. Before Mr. Irby was given that chance, however, all prospective jurors heard an opinion on this exact same topic from the one person who they naturally assume is the voice of justice and wisdom above all others in the room. And it was not only the black-robed beacon of wisdom who spoke, but also the "older circuit judge . . . [of] many, many years ago" from whom this jurist was mentored. Together, they conveyed an unmistakable impression of endorsement for the prosecution's theory that no excuse is sufficient for this citizen to forsake such an important responsibility.

Giving the jurist the benefit of doubt, perhaps his words mirrored those he gave to all prospective jurors in all trials in an attempt to convey the importance of the jurors' decisions to heed the call to jury duty. But in this particular case, with these type of criminal charges, it seems to this trial lawyer that the better part of wisdom should have counseled the esteemed jurist to leave out the clause relative to filing taxes. His comment set the stage for the drama that was to unfold. Similar to an opening scene of a movie, or an opening line to a book, the jurist's comment underscored to the prospective jurors that this jurist did not look kindly upon anyone who would scoff at our country's call to citizenship through the payment of taxes.

This trial lawyer also takes issue with the appellate court's conclusion that "one single voir dire statement" was insufficient to carry much weight in the context of a 4-day trial. The power of the jurist's statement in Irby's trial does not rest in the number of syllables that were uttered, but in the picture they painted of the judge's heart and inner thought. In the gospel of Matthew, we are taught "what comes out of the mouth proceeds from the heart." And often, given the setting, the import of words cannot be diminished: "Whatever words we utter should be chosen with care, for people will hear them and be influenced by them for good or ill." Buddha, 563-483 B.C.

I surely do not suggest what occurred here was done with bad intent, or anything close to it. It's the effect of what was said, however, that concerns me. In a case I worked on recently, I asked an appellate court to consider the misleading and devastating effect of a prosecutor's statement in final argument that the key government witness should be given "the benefit of the doubt" despite the inconsistencies within his testimony. I had always thought it was the defendant-citizen who was to be given "the benefit of the doubt." Nevertheless, as in the Irby case, this pronouncement by the credible and esteemed representative of the government was considered to be cured in the context of the court's generalized instructions on burden of proof. I was concerned then, and I am concerned with the Irby decision. But I'm just a defense attorney.