So The Judge’s Wife Is On The Jury…Wait, WHAT?

“Hi hon!”

I haven’t seen this before.

Judge Thomas Ensor of Adams County, Colorado, now retired, sat back and allowed his wife to be empaneled on the jury trying Gary Val Richardson for allegedly firing one or two shots in the direction of police officers during a 2013 standoff.

The judge even thought the situation was funny. He joked during jury selection that lawyers should “be nice to Juror 25. My dinner is on the line.” After the jury was selected and sworn in, Ensor told the lawyers that he had never heard of a sitting judge having a spouse or family member on the jury. “There’s nothing wrong with it,” he said. “I think she’ll be a fine juror. I have not spoken to her about this case.”

One of my rules of thumb for avoiding legal ethics problems in trial is that if you’ve never heard of something being done before, there’s probably a good reason not to be the first to do it.

Richardson was convicted  on two counts of attempted second-degree assault, three counts of attempted third-degree assault, one count of violation of bail bond conditions, and one count of possession of a controlled substance, and was sentenced to 16 years in prison. He appealed on the basis that having the judge’s wife on the jury denied him a fair trial. In its June 1 opinion, the appeals court said that because Richardson’s lawyer didn’t object or move to dismiss her, any challenges on appeal were  waived. The judge also didn’t have a duty to excuse his wife as a juror or recuse himself from the trial, the court said, though he could have. No Colorado statute or rule required him to.

Richardson’s defense lawyer had said, when Ensor referenced his wife’s juror status, “I think we’re both afraid to challenge her.” “That wasn’t a stupid idea,” the judge replied. “Thank you. I appreciate it.”

During  the trial, Judge Ensor repeatedly mentioned his wife. Twice he asked he about dinner plans from the bench. When the defense lawyer apologized to jurors in closing arguments because the trial had taken them away from their family and spouses, the judge quipped, “Not everyone has been taken away!”   His wife then said she that had spent more time with her husband than usual by being part of the trial . Ensor said  to the lawyers, “You forced her to spend more time with me, which is worse.”

Judge Ensor, said the court in rejecting the appeal,  “could have handled this unusual situation in a more restrained manner,” but “his failure to do so did not create reversible error.”

Justice Richard Gabriel argued in his dissent that the situation required a reversal of the conviction:

“The trial judge’s conduct ensured special status for his wife as a juror, likely undermined the independence of the jury, chilled the lawyers’ advocacy, created an obvious appearance of impropriety, and ultimately deprived Richardson of the fair trial that the United States and Colorado constitutions guarantee him.”

I agree with him.

7 thoughts on “So The Judge’s Wife Is On The Jury…Wait, WHAT?

  1. Had neither the judge or his wife said anything to anyone the lawyers could not argue that they were afraid of challenging her nor would other jurors be influenced by her participation but the potential existed for the two to discuss the case at home – not acceptable. Conversely, he ruined any chance of a fair trial by referring to his wife from the bench.

    I am not a lawyer but even someone not as smart as lawyers can see this problem.

  2. I was once removed from jury duty because the prosecutor attended church with my parents, so I’m honestly gobsmacked this was allowed.

    • There was another case in Texas where the wife of one of the lawyers in a civil case was not only a juror, but the foreman! In that case, the lawyer and the wife never informed the judge or the other counsel. AND the lawyer’s opponent never asked her if she knew anyone connected with the case!

  3. This clearly reversible error. Trial lawyers are (have to be?) incredibly deferential to judges. Defense counsel obviously realized it was better not to object than face the judge in the next case he’d have before him. Screw the client. (The appellate judges are covering for the trial judge. Honor among thieves.)

    I’ll give you an example. A litigator grade school buddy of mine and I called our grade school buddy who’s (last I knew) the chief judge in the Federal District our litigator buddy practices in. (I was a transactional lawyer and in a different district three time zones away.) My litigator buddy could have a case in front of our mutual grade school buddy. It was a social call, but, and I am not making this up, the litigator buddy did not call our grade school buddy by his first name. No sir. he addressed our grade school buddy as “Judge.” I was stunned. Later, I had a big laugh.

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