By Sarah Kelly-Kilgore

Ah, November.  I still love the weather, but it’s now time to start shopping for holiday gifts, and I hate wish-lists.  Specifically, I hate being constrained to such wish-lists by the extraordinarily methodical engineers in my family.  I’ve been told this is impractical and highly inefficient, but I also dislike planned rest-stops on vacation, and can’t stand the idea of the Yankees in the playoffs.  Okay, that last one may be an outlier, but what I’m trying to say is that I’m usually one for surprises – even most bad ones – as they produce a feeling of adventure I think the world is otherwise missing.  Regardless, I have to admit I was unpleasantly surprised when the Supreme Court denied cert. in Wong v. Smith last week. (Comment on dissent from denial of cert. petition (Orders, Nov. 1, 2010)

In case you missed it, Wong v. Smith was a case arising out of the Ninth Circuit which raised the issue of whether a state judge’s series of increasingly specific jury instructions coerced jurors into returning a guilty verdict.  The petition for cert. can be found here.  See generally Smith v. Curry, 580 F.3d 1071, 1073 (9th Cir. 2009), petition for cert. filed sub nom. Wong v. Smith, No. 09-1031 (Feb. 12, 2010). 

After his conviction in California state court on home burglary and oral copulation charges, Anthony Smith, Jr. filed a pro se writ of habeas corpus in federal court.  Recognizing the state court’s decision upholding the jury instructions to be an unreasonable application of established law, the district court granted habeas relief and the Ninth Circuit affirmed.  Id.  In its decision, the court of appeals noted specifically that the trial judge had issued instructions to a deadlocked jury in direct response to a note from Juror 10 indicating the juror was skeptical of the DNA evidence and the victim’s identification of her attacker, and could not in good conscience return a guilty verdict.  Id.  The trial judge excerpted certain statements made by Smith and his codefendant, and highlighted consistencies and inconsistencies therein, effectively summarizing the prosecution’s evidence. Id.

In an earlier post, I outlined a number of reasons why the Court should grant cert. despite my opinion that the Ninth Circuit correctly decided the case.  Specifically, I pointed to the sparseness of case law on the issue of “coercive jury instructions,” a split among the circuits as to whether judicial commentary to a deadlocked jury is appropriate, and empirical studies indicating Allen-type instructions are overwhelmingly coercive.  In adissent from the Court’s denial of cert., Justice Alito – joined by Chief Justice Roberts and Justice Scalia – discussed the first of these, before ultimately concluding the Ninth Circuit erred in affirming habeas relief because of the lack of established law on the specific point of judicial coercion in state court jury instructions. See Petition for Writ of Certiorari, Wong v. Smith, No. 09-1031, cert. dismissed (Nov. 1, 2010) (Alito, J., dissenting).

On Monday, when the Court’s orders and the accompanying dissent were issued, SCOTUSblog and the New York Times were quick to highlight the Justice Alito’s assertion that judicial commentary on the evidence “is part of a long common-law tradition and should not be lightly disturbed by federal courts.”  See Adam Liptak, Court to Weigh Legal Aid in Contempt Cases, N.Y. TIMES, Nov. 2, 2010,http://www.nytimes.com/2010/11/02/us/02scotus.html.  This assertion, however, is heavily based on English law and a few early cases, see, e.g.Vicksburg & Meridian R.R. Co. v. Putnam, 118 U.S. 545 (1886), and conveniently overlooks the fact that a number of states actually prohibit judicial commentary altogether, see, e.g., LA. CODE CRIM. PRO. ANN. art. 772 (1998) (Louisiana judges are statutorily prohibited from commenting on the evidence); Wilson v. State, 581 S.W.2d 661, 669 (Tex. Crim. App. 1979) (Dally, J., concurring) (holding Texas judges do not have the power of federal judges to comment on the evidence); State v. Valencia, 575 P.2d 335, 337 (Ariz. Ct. App. Div. 2 1977) (holding Arizona judges cannot comment on the evidence).  Additionally, the case cited by the dissent as allowing judicial commentary in federal trial courts, Quercia v. United States, stated explicitly that a judge “may analyze and dissect the evidence, but he may not either distort it or add to it,” 289 U.S. 466, 470 (1933). 

It appears, then, that Justice Alito’s critique of the Ninth Circuit’s opinion may be flawed.  After all, isn’t excerpting only certain parts of co-defendants’ testimony and instructing the jury to focus on those statements – to the exclusion of DNA testing and witness testimony – already distorting the evidence? It is well settled that “[n]o matter how conclusive the evidence in a criminal prosecution, any instruction that tends to direct verdict for the government amounts to plain error.”  United States v. Musgrave, 444 F.2d 755, 762 (5th Cir. 1971).  At what point do a judge’s instructions distort the evidence?  At what point do they begin to direct a guilty verdict?

Interestingly, the answer often depends on whether the judge’s statements are considered to be commentary on, as opposed to a summary of, the evidence. 

Regardless of what form the judge’s statements take, they must be made fairly and impartially, with “great care” taken not to cause irreparable prejudice to a party’s case.  See Caskey v. Village of Wayland, 375 F.2d 1004, 1008 (2d Cir. 1967).  However, where a judge chooses to summarize the evidence, he must be careful to sum up the evidence on both sides.  See, e.g.United States v. Brandom, 479 F.2d 830 (8th Cir. 1973); State v. Thompson, 839 A.2d 622, 634-35 (Conn. App. Ct. 2004) (“recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case.”).  Although the courts differ on what constitutes error on this point, it is clear that commenting on the evidence enjoys a much more lenient standard, as commentary can simply ignore witnesses and other evidence not deemed credible or significant.  Compare United States v. Tello, 707 F.2d 85, 88 (4th Cir. 1983) (finding no error because when commenting on evidence, judge need not refer to all of it), with United States v. Corbin, 590 F.2d 398, 401 (1st Cir. 1979) (in summarizing, failure of court to comment on evidence favorable to defense was plain error).

Ironically, Justice Alito’s dissent characterized the trial judge’s instructions in Wong v. Smith alternately as both a commentary and a summary in criticizing the Ninth Circuit’s decision.  Stating that “the common-law privilege to comment on the evidence has never required a compendious summary,” Justice Alito found the California appellate court’s decision upholding “a one-sided summary of the evidence” not to be an unreasonable application of clearly established law.  See Petition for Writ of Certiorari, Wong v. Smith, No. 09-1031, cert. dismissed (Nov. 1, 2010) (Alito, J., dissenting).  Although this argument fails to conclusively distinguish the judge’s instructions as either commentary or summary, incredibly, the reasonableness of the lower court’s decision likely turns on that very distinction.

So what is the difference between judicial commentary and summary?  Ultimately, this remains a largely academic debate; while there is no definitive answer, the characterization is usually determined on a case-by-case basis by the appellate courts, which appear to be happy with the current state of law.  The issue does, however – in keeping with the theme of Wong v. Smith – raise larger questions with respect to the lack of guidance available to the lower courts.  Justice Alito’s criticism of the Ninth Circuit’s decision centered on the premise that there is no established law regarding jury instructions in state courts, and thus the California court’s decision could not be an unreasonable application of such law.  But how can these standards be established when the Court refuses to hear a case on the point?  How can state judges possibly navigate successfully between commenting, summarizing, and providing non-coercive instructions when no standards exist to tell them what is and is not appropriate?  Again, I was surprised the Court denied cert. last week…