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A jury full of questions

Jurors, judge at Probation trial active players in courtroom

BY: Jack Sullivan

At most trials in state and federal courts, the jury is a blank and muted canvass for lawyers to paint their cases on throughout the proceedings, its collective voice heard loud and clear only when the verdict is announced.

Perhaps a raised eyebrow here, a sly smile or chuckle there at questions posed by prosecutors or defense lawyers – mixed in with an occasional stifled yawn during a particularly dry presentation of evidence or testimony – but their silence is most notable from the time they walk in at the start of the day until the session is recessed.

Legal observers for the most part, though, say the jury participation in the federal corruption trial of former state Probation officials, especially the volume of questions, is highly unusual. What’s not a surprise, the say, is the fact that it’s happening under US District Court Judge William Young.

“The approach may be viewed as unconventional and unorthodox, but if anyone can carry it out effectively and positively affect the trial, it is Judge Young,” says Gerry Leone, a partner with the Boston law firm Nixon Peabody and former federal prosecutor and Middlesex District Attorney.

Former Probation commissioner John O’Brien and two of his top deputies, Elizabeth Tavares and William Burke III, are on trial for racketeering, mail fraud, bribery, and conspiracy. The massive and complex indictment and the volume of testimony required to prove the case has stretched the trial out for nearly 10 weeks and promises to try jurors’ memory and grasp of facts over an indictment that has even many seasoned legal observers out of breath.

Since the beginning of the trial on May 8, Young has empowered jurors to ask questions not only of him but of the witnesses as well. And ask they have. Some 278 questions have been put forth by jurors to witnesses, in writing and posed by Young after all the lawyers see the inquiry, though a handful have not been offered because Young has deemed them not appropriate to ask for a variety of reasons, either because they’re not relevant or would violate the rules regarding evidence. Sometimes there may only be a couple questions, other days as many as 12.

The questions can be mundane, such as during the testimony of several state representatives, with a juror asking, “How often is a [House] speaker elected?” Still others can be pivotal such as when Robert Mulligan, the former chief justice of administration and management, was testifying about his review of candidates selected by O’Brien and that he told his staff to alert him to questionable applicants. “What instructions did you give to your staff about red flagging?”

During the testimony, David Fournier, a 40-year friend of then-state representative Robert Rice, said Rice offered him a position in Probation and gave him a number to call at the department to express his interest. Through Young, one juror asked pointedly, “What did you tell Probation about how you learned of the job?” Fournier, who was hired, said he told them, “I heard there were openings.”

While it’s unusual, allowing jurors to ask questions during the course of a trial was upheld by the federal First Circuit Court of Appeals in 1992. Defense lawyers in that case, United States v Sutton, had appealed their client’s conviction because the judge let jurors write out questions that he would then pose to witnesses. The court, while agreeing there were pitfalls in allowing the practice on a widespread basis, nevertheless said the district court judge in the case was within his power to present the questions.

“Allowing jurors to pose questions during a criminal trial is a procedure fraught with perils,” the appeals panel wrote. “In most cases, the game will not be worth the candle. Nevertheless, we are fully committed to the principle that trial judges should be given wide latitude to manage trials. We are, moreover, supportive of reasoned efforts by the trial bench to improve the truth-seeking attributes of the jury system.”

The district court judge in that case? William Young.

“I don’t think I ever tried a case in which jurors were permitted to ask questions,” said Suffolk Law school professor Michael Avery, who teaches constitutional law and evidence and who was a practicing trial lawyer for more than 30 years. “Judges who are innovative, and Judge Young is innovative in some respects, have experimented with various forms of how do you keep their (jurors) attention up. As a professor, if I walk into a class and say ‘don’t bother asking questions,’ that would be a very boring class. But it comes with a price.”

Avery said allowing jurors to inquire about something they are curious about could disrupt the strategy of the lawyers trying the case. He said some attorneys may make a strategic decision to introduce one piece of evidence through testimony but bypass another. That strategy is out the window, however, if a juror wants to know.

“The jury then is kind of getting in the way of lawyers doing their jobs,” Avery said. “There’s a lot of strategy going into trying a case. You have a right to have a lawyer and part of that right is to have a lawyer develop a strategy. It interferes with the lawyer’s strategy.”

Boston College Law Professor Mary-Rose Papandrea, an expert in constitutional law and civil procedure, said the practice of jurors asking questions goes back to the early 18th century in English common law, when members of the community who had familiarity with the issues would sit in judgment more as a tribunal than as a jury.

“In a way it’s a return to this old historical vision of what constitutes a jury,” said Papandrea, a former litigation attorney who also clerked in the federal district, Appeals, and Supreme Court. Papandrea, though, agreed that the practice remains “unusual” and not often applied in criminal cases.

While Papandrea sees the benefits of an involved jury, she says letting jurors ask questions also introduces a different dynamic for both prosecutors and defense attorneys, one that can change the shape of testimony and evidence over the course of a trial.

“If the jury becomes too predisposed with outcome, they may take a side early on,” she said. “Usually, the jury’s a black box, you don’t know what they’re thinking. Now, the lawyers are getting a good feel for what’s working, what’s not working, what they’re buying.”

Papandrea also said it could be “unnerving” for lawyers on both sides to object to jurors’ questions for fear of alienating some on the panel. Indeed, the 1992 First Circuit decision revealed that was the case when Young asked a defense attorney at sidebar why he didn’t object if he had a problem with a question.

“I'm kind of frightened to object to a question asked by a juror lest they misconstrue and ascribe an improper motive to it,” the lawyer said, according to a transcript, “and I would only ask if the court would consider conferring with counsel before putting questions.”

Young does do that, having his clerk pass the questions around to attorneys on both sides before posing it to a witness. But he sometimes does not stop there. Probably more than most other judges, Young will himself take over questioning of a witness if a lawyer is struggling to pose a question in proper form because of objections. He’ll also ask questions to follow up on something that he feels the jury needs more information about.

Francis Larkin, dean emeritus of the University of Massachusetts School of Law in Dartmouth and a state judge for more than 20 years, said Young began asking questions when he sat on the state bench before moving to federal court. Larkin said Young was the trial judge in the infamous “Big Dan” case in New Bedford, where four men were convicted of raping a 21-year-old woman on a pool table while patrons watched and cheered. The trial, the first to be nationally televised from gavel-to-gavel, showed Young injecting questions to clarify testimony and asking follow-up questions to witnesses.

“He was in the middle of that maelstrom,” said Larkin, who called Young “the most distinguished trial judge presently sitting in Massachusetts, and maybe in the country.” Larkin added: “When there was an impasse or the jury seemed confused, he posed questions which aim to clarify and expose issues.”

Young, a graduate of Harvard University as well as Harvard Law School, does not consider himself a passive participant, most observers say. A former chief counsel to then-governor Francis Sargent, Young notably took on the case of defending the Boston Globe when it was charged by the federal government for running the Pentagon Papers. He served in the state’s Superior Court from 1978 to 1985, before President Ronald Reagan tapped him for a newly created seat on the US District Court in Massachusetts. In addition to the “Big Dan’s” case, Young also presided over the case of shoebomber Richard Reid as well as a suit involving the relatives of the last victim of the Boston Strangler.

But experts said while it is the judge’s prerogative to ask questions, he or she has to be judicious about when and how often to interject. Because of the bond jurors develop with judges, they may see something in a judge’s question that isn’t there.

“Sometimes it can be very helpful to have the judge ask questions in that it can clear up some confusion for jurors,” said Avery. “But a lot of judges don’t like to ask a lot of questions because the jury will think, if the judge is asking about this, this might be super-important and give it undue weight. They do look at the trial judge as a father-figure.”

Like the lawyers he sometimes has to reel in, Young is also prone to violating rules of evidence. During the testimony of former Probation official Francis Wall, Young took over the questioning from Assistant Attorney Fred Wyshak who was continually being interrupted by defense objections, which Young sustained. At one point, Burke attorney John Amabile objected to the form of some of Young’s questions.

“Your honor is leading the witness," Amabile said.

"I am,” Young replied, before adding, “and the objection is sustained."

An earlier version of this story contained the wrong surname for retired judge Francis Larkin. It has been corrected.
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