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The Erosion of the Right to a Public Jury Trial and a Defendant’s Right to Presence

The Erosion of the Right to a Public Jury Trial and a Defendant’s Right to Presence Meeks is of particular import to me as it was issued just after the Eighth Circuit issued United States v. Picardi, a case that I was personally involved in as appellate counsel. Picardi is also a case where the defendant’s right to be personally present during important phases of his criminal jury trial was limited. Meeks is a federal drug conspiracy case involving two brothers. Both were accused of distributing large amounts of crack cocaine. During their trial, the jury sent out two notes to the judge. One of the questions posed by the jurors involved a significant legal issue. Frequently during trials the jurors have questions during their deliberations. When this happens, the judge is supposed to notify the attorneys and the defendants. Before answering the question, the judge is expected to ask the parties what answer they want him or her to give, and there is a record made as to the discussion that pertains to the jury’s note. In the end, the judge gets to decide how to answer the question, but the parties are supposed to have a chance to comment, and the public usually gets an opportunity to observe the process. This transparency protects the integrity of the process. In the Meeks case, the judge did not follow that process. Instead, the judge gave a detailed response without even telling the defendants or their attorneys that this was going on. The error seems obvious and is one that should have provided the Meeks brothers with some grounds for a new trial. However, the problem for the defendants was that their attorneys did not raise the matter during the appeal process. Instead, the Meeks brothers raised it for the first time during the habeas corpus proceeding. The Eighth Circuit refused to the consider the matter because, the Court held, the issue was “procedurally defaulted.” The court held that because it was not addressed on appeal, it would not help the defendants out during the habeas process. For me, the important part of the Meeks decision is not that the Eighth Circuit refused to hear the claim. That was almost a certain outcome. Procedural default is a persistent issue in habeas corpus actions. What strikes me as significant about the case is that the issue ever arose in the first place. As a trial attorney, I’m stunned at the notion that a judge would answer a jury’s questions without notifying the parties or eliciting input from them. It is not only fundamentally unfair, it reflects a misguided belief that the court is so knowledgeable that the input of the defendant, his attorneys, or the government’s attorneys, is simply unnecessary. Meeks also marks a troubling disregard for Federal Rule of Criminal Procedure 43. That rule mandates that a defendant be present during all important phases of his trial. Certainly, answering a jury’s questions is an important part of the trial. I read Meeks shortly after the Court issued its decision in Picardi. I represented Picardi on appeal. At trial, his judge met with two jurors, discussed matters with them, and dismissed them from service, all without every notifying the defense attorneys, the defendant, or the prosecution. In one instance, Picardi did not even know one juror had been removed until the next day. Most troubling was the fact that one of the dismissed jurors was a minority, so her removal changed the ethnic composition of the jury. Picardi raised the issue on direct appeal. However, the Court said that because Picardi did not object to the removal of the jurors at trial, it would only consider the error if it met the plain error standard of review. For those of you non-lawyers reading this, the “plain error” standard of review is almost impossible to meet. The irony is that Picardi had no meaningful opportunity to object to the court’s removal of the jurors at trial. The judge dismissed the jurors after privately meeting with them. Neither Picardi nor his attorneys were told about the matter until after the fact. And, because no court reporter was in the room when the judge spoke with the jurors, no record exists as to what transpired. An objection could not have done anything because, once the jurors were allowed to leave the building, they could not be re-called to service. All citizens should be concerned about the integrity and impartiality of the jury system when judges interact privately with jurors as they did in Meeks and Picardi. Our right to a public trial is based on the idea that public scrutiny of the process will ensure fairness. Yet, as we have seen in these decisions, not only is the public being kept out of the loop when it comes to important aspects of the trial process, even the defendants and their attorneys are being excluded. Worst of all, both Picardi and the Meeks brothers continue to sit in prison without having the opportunity to get a new trial.