Much of the media, including numerous authors here on Daily Kos, have been publishing stories speculating about what Fulton County D.A. Fani Willis is going to do. How many defendants will be indicted? Who will they be? What will be the crimes charged?
Some of the stories have been negative: if D.A. Willis charges a dozen or more defendants, as has been suggested, the trial will be logistically unworkable. Proponents of that point of view point to Jack Smith’s January 6-related indictment of Trump only, with the presence in the indictment of 6 unindicted co-conspirators. That was done, according to these pundits, to ensure that the trial was as streamlined as possible, without the confusion of multiple defendants represented by multiple – possibly overlapping – lawyers.
As I was discussing this aspect of the Trump indictments recently, I recalled an experience I had almost 30 years ago as a juror in a multiple-party trial. I thought that it might be amusing to recall it for you as we all wait for Fani Willis to reveal her plan.
I can’t recall the subject matter precisely, but it involved charges and countercharges of frivolous litigation stemming from a dispute over the estate of a painter who once lived locally but who was a resident of a far distant state at the time of his death. I was summoned to jury duty in October, 1995. No problem, I thought; I’m a lawyer, I’ll never get picked. Wrong.
I was selected, along with three or four other lawyers and a number of people with pretty high-powered jobs. It was probably the most-educated jury that had been seated in that courthouse for years. What we didn’t know at the time – because the Judge and the parties’ lawyers carefully didn’t tell us – was that there had been at least one, and possibly two, earlier mistrials and the Judge was determined to get this matter tried and out of his court.
The trial commenced on October 31, an inauspicious date if there ever was one. There were three separate sets of lawyers. Each lawyer apparently felt that in order to justify his fees, he had to argue over every exhibit and cross-examine every witness, notwithstanding that the same ground had been plowed earlier by one or another of the other lawyers. The trial was tedious in the extreme, and seemed to consist mainly about arguments over the record of an earlier trial.
Plaintiff’s counsel was an elderly man confined to a wheelchair, and in mid-November he fell ill and had to be hospitalized. The Judge called the jury into the courtroom and spoke to us: because of counsel’s illness, the trial could not continue. The Judge said that he had two options: he could declare a mistrial and start over from the beginning with a new jury at some date in the future or – if the jury would unanimously agree – he would postpone the trial through the Thanksgiving and Christmas holidays and resume sometime in late January.
The Judge really did not want to declare a mistrial because, as he now told us for the first time, there had already been one mistrial in this matter. The parties, he assured us, had at most only one or two more trial days to go and that would be the end of it. Please, would we agree to come back after the holidays.
The jury agreed to the Judge’s request, and the trial was postponed from November 14 until January 30. We all went home and, as Arlo Guthrie would say, had a Thanksgiving dinner that couldn’t be beat. We came back after Christmas and New Years expecting a quick wrap up of the trial.
You can probably guess what happened. Jarndyce and Jarndyce resumed. After another week of the same pointless argumentation, the jury had enough. After discussing the matter among ourselves, we composed the following letter which we handed to the bailiff for delivery to the Judge.
February 7, 1996
Dear Judge ___:
The jury would like to express to the Court its collective apprehension that the parties appear to be unable to conclude this litigation in a reasonable amount of time. The jury has been sitting on this case since last October – over three months ago. Your Honor may recall that in December, the Court asked the jury if it could possibly return for a short additional amount of time in January or February. At that time, the jury understood from the Court that it could have declined that invitation. It did not do so.
Now, however, the trial has continued in this year for a week and a half, with no end in sight. Although the jury recently told the Clerk that it was willing to start each day earlier than 10 a.m. and continue past 5 p.m., the Clerk indicated that that was not possible. To the contrary, the Court day has been considerably shortened, starting late, often ending early, and interrupted by repeated sidebar arguments.
At this point, the jury is seriously concerned that the protracted length of this trial is having an adverse impact on the jurors’ relationships with their employers. For this reason, the jury collectively requests that it be excused at the end of the day Friday, February 9, 1996, unless the case has concluded prior to that time.
Respectfully submitted,
The next thing we heard – through the closed jury room door – was the Judge loudly berating the lawyers – all of them. The door opened and the bailiff entered. “Please come into the courtroom. Closing arguments will start now.”
After closing arguments, the jury did not have to deliberate for very long. We found against everyone – no party received anything that it had sought. “A pox on all of your houses.”
And we were out of there with the Judge’s thanks and a promise to extend our exemptions from future jury duty from the usual two years to five years.