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Saturday, June 20, 2009

Thoughts on Yeager: Role of Appellate Judges, Special Verdicts, and the Meaning of a Hung Jury

Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel rule, which precludes relitigation of issues previously found in the defendant's favor, and the hung jury rule, which permits relitigation of charges as to which a jury does not reach agreement.  Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager's alleged fraud was that he knowingly participated in making false, overly optimistic statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager's view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government's insider trading theory would also collapse.  In the government's view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government's view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury's treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

First, the Court limited its analysis to the purely legal question of whether a logical inconsistency between acquitting on some counts and hanging on others necessarily denies the acquittal of preclusive effect.  The Court thus declined the government's invitation to reexamine the Fifth Circuit's holding on what exactly the jury decided in its acquittal; the Court simply accepted as its starting premise that the jury acquitted Yeager because the government did not prove he knew the statements at issue were false.  "We decline," as the majority opinion put it, "to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to resolution of the narrow legal question we granted certiorari to resolve." 

The majority's cavalier treatment of the factual question provoked a concurrence from Justice Kennedy.  It also brought to my mind some of the discussion at the Criminal Appeals Conference here earlier this week about the disengagement of appellate judges from basic error-correction functions.  Paul Carrington, in particular, criticized the apparent preoccupation of appellate courts with law-making, to the detriment of other endeavors that may seem less exalted to judges, but are still vitally important to litigants.  As I understand it, Carrington was really speaking of the intermediate federal appellate courts, but I wonder if similar arguments might fairly be extended to the Supreme Court.  Althought the Justices do occupy a different position in the federal court system, the lower-court judges may still take their cues from the Justices in deciding how to value different judicial activites. 

Second, the factual issue the Court declined to grapple with would have been easy to decide if the jury had been given a special verdict form and required to state what it found with respect to the different elements of the charged offenses.  I've never understood why special verdict forms are not used more frequently.  Yes, they make the jury's job more complicated.  But, in addition to helping sort out Double Jeopardy issues after the fact, they would also force the jury to pay closer attention to each element, thus reducing the likelihood of logical inconsistencies in the outcome.  When I served on a civil jury a few years ago - yes, a law professor was inexplicably permitted to serve on a jury! - we used a special verdict form that required an express decision on each element.  During the deliberations, it became clear that several jurors were prepared at the outset to render a quick plaintiff's verdict, but working through the elements one at a time caused these jurors to focus on weaknesses in the plaintiff's case they had not appreciated at first.  Without the discipline imposed by a special verdict form, I doubt these jurors would have been brought around to see these problems.

Third, I was struck by Yeager's complete discounting of the significance of hung counts: "Hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. . . . [T]he fact that a jury hangs is evidence of nothing -- other than, of course, that it has failed to decide anything" (14).  As Justice Scalia observes in his dissent, this seems a considerable overstatement.  A hung jury is surely "evidence" of something: it means that at least one juror concluded the government satisfied its burden of proof and that at least one juror concluded the contrary, and it supports an inference that the case is sufficiently close that reasonable minds may differ on whether the defendant ought to be convicted. 

Moreover, Yeager's reasoning on this score may prove too much.  The majority put it this way:

A host of reasons -- sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few -- could work alone or in tandem to cause a jury to hang.  To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.  But that is not reasoned analysis; it is guesswork.

Yet, much the same could be said about acquittals.  We don't really know, for instance, whether Yeager's acquittal was a result of confusion, compromise, exhaustion, or nullification.  Ashe v. Swenson assumes a careful rationality behind jury decisions -- an assumption that is not well supported, as I understand it, by the research on jury decisionmaking. I would think the assumption especially dubious in a complicated financial fraud case like Yeager, in which the trial lasted 13 weeks, and the jury had to wade through no fewer than 165 counts.

The majority was trying to show that acquitting intrinsically carries more meaning than hanging in order to reconcile the collateral estoppel rule with the hung jury rule.  The dissenters downplayed the distinction in order to limit the reach of the collateral estoppel rule; indeed, they made clear they thought Ashe to have been wrongly decided.  But seeing the meaning of an acquittal as no less mysterious than that of a hung jury might instead lead to the opposite conclusion: instead of Ashe, we could toss the hung jury rule overboard, precluding retrial of hung counts across the board.  After all, it is only a matter of convention that we see an acquittal as a loss for the government and the hung jury as something else; in either scenario, the government has failed to carry its burden of convincing twelve jurors (or a somewhat smaller number in a few jurisdictions) of the defendant's guilt beyond a reasonable doubt.  Perhaps the government's failure in both scenarios should carry the same Double Jeopardy consequences.

Posted by Michael O'Hear on June 20, 2009 at 03:22 PM in Criminal Law | Permalink


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I have a related issue that is scheduled for oral argument before the 9th Circuit on August 10th. In Harrison v. Eighth Judicial District Court (Nevada), the issue presented is whether there was a manifest necessity for a mistrial in a capital penalty hearing where the jury stated, through two notes, that it was split 9-3 between life without and life with and the trial court refused to poll the jurors as to whether they had reached a unanimous decision concerning the death penalty. It's my position that the defendant was entitled to a special verdict and/or polling of the jury to see if there was an acquittal of the death penalty. I don't think Yeager answers the question.

Posted by: jonell | Jun 26, 2009 3:30:35 PM

I really like the idea of the special verdict forms for the jury focused on each element of the offense. I'd not heard of that before.

Excellent post!

Posted by: Gritsforbreakfast | Jun 26, 2009 1:28:06 PM

Michael, thanks for these great comments on the case. I read the opinion today also and share exactly the same view regarding the idea that hung juries should be evidence that the gov't has failed to carry its burden, and the gov't should get one full opportunity to convict, and if it hasn't persuaded the initial jury that it jointly selected, then that should be the end of it. The idea that acquittals in fed court require unanimity stands in striking tension with the notion that a jury must find guilt beyond a reasonable doubt.

Posted by: Dan Markel | Jun 21, 2009 9:04:50 PM

And why did Roberts join? Strange that.

Posted by: Joe | Jun 20, 2009 5:56:30 PM

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