2nd Circuit Rules Jurors Can Take Indictment Home

06/28/12

On Wednesday, in a case called the first of its kind, the

2nd U.S. Circuit Court of Appeals

acknowledged that human nature and the internet already added a “marginal” risk on jurors taking indictments home, but that by itself was insufficient to overturn a conviction as of a denial of fair trial. The Court of Appeals also held that in the instant case, the trial judge acted within the perimeters of law by allowing

jurors

review the indictment by taking it home to read after deliberations had begun. However the Court of Appeals also observed that “the better practice weighs against the experiment undertaken here.”

However, in the instant case, where the convicted George Esso had appealed the verdict against him, the three-judge appeals court also directed resentencing, observing that there was lack of clarity as to why Esso’s prison-term for bank fraud and conspiracy was longer than that of another more culpable co-defendant.

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The case involved the indictment of Esso and six others over a scheme involving false representations in the mortgage application process that they committed in 2006 and 2007. During the trial, and after an hour of deliberations, Esso’s jury had asked permission of the trial court to “take the indictment home to carefully read.” U.S. District Judge Shira Scheindlin had allowed the jury its request. She instructed the jurors not to show it to anyone and observed that it “saves some time,” while warning them not to “even think of going on the Internet.” Next day, Esso was convicted.

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Judge Geral Lynch, writing for the Court of Appeals held that such conduct did increase the risks of outside influence, however, in the instant case, the “clear and emphatic” instructions of the trial judge and the lack of any evidence to prove such instructions having been ignored, sustained the conviction. The Court of Appeals also observed that trial judges have discretion to manage their courtrooms and have the authority to experiment with

trial procedures

for the common good.

Lynch wrote, “In the age of electronic information, there is already a significant risk that jurors will

conduct research

… just as there has always been a risk that jurors will be tempted to discuss the case, which consumes their daily attention, with family members and friends… The marginal additional risk created by allowing jurors to take home a copy of the indictment seems to us small compared to the risks that already exist due to modern technologies and the persistent features of human nature.”

The case is U.S. v. Esso, 2nd U.S. Circuit Court of Appeals, No. 11-570.