Trial length is issue in high-profile appeal

Lawyers for convicted former Illinois Governor George Ryan, who was charged with illegally steering contracts to supporters, plan to ask the U.S. Supreme Court if his six-month trial was too long. Their case is bolstered by three judges who last month dissented from the 7th Circuit's affirmation of Ryan's conviction noting that long trials have fundamental flaws, including a smaller pool of possible jurors, increased distractions for jurors, and juror memory loss amid a deluge of evidence.

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CHICAGO � Lawyers for convicted former Illinois Governor George Ryan, who was charged with illegally steering contracts to supporters, plan to ask the U.S. Supreme Court if his six-month trial was too long. The 7th U.S. Circuit Court of Appeals last month affirmed the conviction, but a group of three dissenting judges raised a far broader question about the length of jury trials. They noted that long trials have fundamental flaws, including a smaller pool of possible jurors, increased distractions for jurors, and juror memory loss amid a deluge of evidence. Ryan’s attorneys, including Winston & Strawn’s Dan Webb and former Illinois Governor Jim Thompson, will appeal to the top court in a case that they also allege was fraught with juror misconduct. U.S. v. Ryan, No. 02-506 (N.D. Ill.). The trial ended in April 2006. Potential confusion While litigators agree that trials that last for months tend to raise problems, especially in criminal cases, they say there is little remedy. “There is great potential for confusion in long cases,” said Theodore V. Wells Jr., co-chairman of the litigation department at New York’s Paul, Weiss, Rifkind, Wharton & Garrison and who recently represented the vice presidential aide I. Lewis “Scooter” Libby Jr. in a seven-week perjury trial. “They create the need for the lawyers and the judges to be more vigilant about the factual presentation and sensitive to the potential for confusion.” Lawyers for Ryan, a Republican who was governor from 1999 to 2003, didn’t cite the trial’s length in their appeal to the 7th Circuit, but they will do so in their petition to the Supreme Court. “The longer the trial goes, the more difficult it is for the jurors to focus and understand the evidence,” Webb said. While the Supreme Court hears few cases, this one could draw interest, given Judge Richard Posner’s presence among the dissenting 7th Circuit judges. Posner, a former chief judge of the 7th Circuit, was the highest-ranking federal judge in a study published in Southern California Law Review in 2004 that sought to quantify the quality of federal judges’ work by counting citations to their work and measuring the speed with which they produced opinions, among other things. About half of the 15-page dissent, which cites mainly pre-1992 academic studies, is devoted to the problems associated with lengthy trials. “Imagine jurors’ mental state after six months, bearing in mind that memory loss and the psychological or cognitive problems of jurors in a super-long trial compound the first problem, the difficulty of recruiting competent jurors for protracted trials: a less intelligible trial is heard by a less capable jury,” wrote Posner, along with 7th Circuit judges Michael Kanne and Ann Claire Williams. Trials that last for months draw from a limited pool of jurors who are not necessarily representative of a defendant’s peer group, the dissenters and litigators said. Low-income individuals as well as business owners are among those unlikely to serve, they say. “I have some concern that good people may not be willing to serve on juries and, in particular, people of more modest means,” said Steven Zager, an attorney in the Houston office of Akin Gump Strauss Hauer & Feld. Keeping jurors focused on evidence over months is difficult, the litigators said. When Dan Gerber, a litigator at Rumberger, Kirk & Caldwell in Orlando, Fla., had a six-month-long products liability trial, he said he discovered afterward that jurors talked among themselves about all sorts of things unrelated to the trial, such as whether lawyers were playing video games at their tables. There’s also the risk of memory loss by the time the jury starts deliberating, said Ron Safer, a criminal defense attorney at Chicago’s Schiff Hardin. “The jury has to sort through a mountain of evidence without the benefit of a recent road map,” he said. Finally, once a long trial is completed, a judge may have a vested interest in not allowing a retrial because of the excessive time and resources of the first trial, the dissenters and some lawyers said. “After months of trial, there’s tremendous pressure on judges not to declare mistrials that would require the trial to begin anew,” said Wells of Paul Weiss. Generally, attorneys say there’s little that could be changed in the system to avoid the pitfalls of long trials other than judges exercising their existing authority to set time limits and insist on brevity. In one Texas state court case, Zager said he “kicked and screamed” about a judge limiting his trial time to 30 hours, but ultimately the lawyers involved were capable of paring their cases down to the allotted time. Judges in Texas tend to make good use of their authority to limit trials, he said.

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