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. Continue reading

Justice vs. Process: The Case Of The Final, Mandatory, Unjust Sentence

African American in Prison

A full panel of the U.S. Court of Appeals for the 4th Circuit, fifteen judges in all, heard arguments this week  regarding whether they have the power to do anything about Raymond Surratt Jr.’s mandatory life sentence, which just about everybody—-the sentencing judge, Surratt’s defense lawyers and government prosecutors—agrees is unjust.

Until the Surratt case, no federal appellate court has faced the question of  whether a court it has a route to correcting a mistake of its own making when the error is as severe as a mandatory life sentence. The North Carolina father of two is incarcerated at a federal facility in Virginia for a 2005 cocaine conviction. If Surratt were sentenced today, he would face a mandatory minimum penalty of only ten years in prison. If he had been sentenced under current laws in 2005 rather than the laws then in effect, he would be out of jail by now.

Surratt pleaded guilty in 2005 to conspiring to distribute at least 50 grams of cocaine in western North Carolina. The judge said he had no choice under sentencing guidelines other than  to give him a mandatory life sentence because of Surratt’s earlier drug convictions. The judge called the penalty “undeserved and unjust.”

The conviction and sentence were upheld after Surratt’s  appeals. Now he has no appeals left. But in 2011, the 4th Circuit, which includes North Carolina, overruled past practice, meaning that it held that prior convictions as in Surratt’s case should not trigger a mandatory life term.

Now, I know that non-lawyers react to this by thinking, “So what’s the problem? Let him out!” That’s in line with the reaction they have when they hear about a defense lawyer who knows his mad-dog killer defendant is guilty of a heinous, bloody crime (“So tell the judge!”). However, the law can’t be changed on the fly, and the fact that a result may be obviously wrong doesn’t change the importance of addressing it within existing procedures, rules and laws. In this case, no more appeals means no more appeals.

The Surratt case involves the important judicial principle of finality. Prof. Steven H. Goldblatt, who runs Georgetown Law Center’s  appellate litigation clinic, told the court that finality is of vital importance to the legal system. Agreeing, a majority of the Fourth Circuit panel said last year that… Continue reading