The 10th Circuit’s decision in  United States v. Turrietta announces that another of the formalities upon which the solemnity of a jury trial is based is a meaningless joke.  Remember when swearing in the jury was a critical stage of the proceedings?  Yes, the good old days.

It seems that the district court judge forgot to swear in the jury.  That can happen, despite the fact that the judge has a courtroom deputy whose job it is to make sure all the “i”s are dotted and “t”s are crossed, in case the judge forgets.  But the defense lawyer, Chuck Knoblauch realized it.  And sat mute.

After the jury found the defendant guilty. Knoblauch stood up. From the WSJ Law Blog :

After the jury returned the verdict, Mr. Turrietta’s lawyer played his card. The judge had forgotten to swear in the jury, an oversight the lawyer, Charles E. Knoblauch, kept to himself for strategic reasons. Mr. Knoblauch asked the court to set aside the verdict, arguing that the absence of the oath deprived Mr. Turrietta of his Sixth Amendment right to trial by jury.

Not a chance, the court responded, and the 10th Circuit affirmed.  Knoblauch was forthright on appeal about his strategy, holding the ace in his pocket in case his client needed it later.  The circuit was, well, appreciative of his honesty here.

¹ To his everlasting credit, Knoblauch has admitted his knowledge and strategy.

Aside from this, the court never really warmed to the defense strategy.  Shockingly, courts tend not to like it when the defense plays games, particularly “gotcha” with the judge.

A verdict delivered by an unsworn jury may present an issue of constitutional dimension, as Turrietta contends. But a compelling threshold issue prevents us from resolving that issue. By lying behind the log, Knoblauch failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture.

Preservation, the last refuge of scoundrels, would have been just the smack the court sought to deliver to Knoblauch for his gamesmanship.  But it didn’t stop there.

Even assuming the failure to administer the oath was constitutional error, the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice….

If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.

While it’s hardly surprising that the court reacted poorly to the defense tactic, the court goes on to suggest that the swearing of the jury doesn’t really “imperil the integrity” of the jury verdict.  Seriously?  In a system that relies on such legal fictions as the infallibility of the jury, and that the jury always adheres scrupulously to the legal instructions of the judge, relying on the solemnity of the proceedings and, yes indeed, the oath to which the jurors swear, we now learn that it was all just some archaic goofy show we put on for the sake of judicial theater?

But then Judge Terrence O’Brien does yeoman effort to dig the 10th Circuit out of the hole he’s just dug:

Surely there are cases where the benefit of the sworn jury will be heightened by the complexity of the law or the indeterminacy of the evidence. But if ever there were an occasion where our system could countenance conviction by an unsworn jury, where the ‘countervailing factors’ eclipse any potential unfairness flowing from the trial error, this is it.

So swearing in a jury might matter, but only in cases where the defendant wasn’t so darn obviously guilty that bothering with a trial was a waste of time to begin with?  You know, real cases. Serious cases. Cases where the judges actually think there is some chance the defendant isn’t guilty, guilty, guilty?

It’s completely understandable, from the judges’ perspective, that they’re both annoyed with Knoblauch for screwing with one of their own and making the trial judge look foolish.  It’s understandable that all the platitudes in all the law books in all the land aren’t sufficient to compel the judges to reward the defense for having out-gamed the court and the prosecution.  And it’s understandable that the judges really don’t believe that swearing the jury is anything more than a formality, to be used when it serves to explain why they can’t possibly let an innocent man walk free and undermine the finality of the verdict or question whether the jury decided the case in absolute adherence with the judge’s charge.

What is not understandable, however, is how, in the process of trying to explain the unexplainable, they have managed to reduce the swearing of the jury to a farce, unless of course they consider the trial unworthy of all those constitutional things they’re supposed to include.

In his WSJ Law Blog post, Joe Palazzolo closes with this:

LBers, if you caught the judge’s error, would you play it to your client’s advantage?

The  reaction of LBers (yes, he really calls his readers that) was, shall we say, unsurprising:

Tech Law wrote :

Lawyers are officers of the Court, and our obligation is to defend both the system of justice, as well as our clients. What the lawyer did was wrong.

Anonymous wrote :

Tech Law: Right on.

While it was surely ineffective, given the decision at the circuit, was it wrong?