If you think that trial experience doesn't matter for a Supreme Court justice, I urge you to read Justice Sonya Sotomayor's dissent in Skilling v. United States. Having actually tried cases, albeit as a prosecutor, Sotomayor is not uncritically seduced by the embrace of a cold trial record. She knows better. Not many judges, or, for that matter, justices, do.
The Skilling decision has been the subject of a lot of commentary, but almost all of it is focused on the court's limitation of white collar prosecutions for theft of honest services. Prior to Skilling, almost any act of dishonesty or deceit by an employee, whether in government service or private employment, was enough to land you on the wrong side of federal cross hairs. After Skilling, at least on the surface, only conduct related to bribery or extortion will support such a prosecution: the Court held that to do otherwise would yield a statute so vague as to leave us all guessing as to what and was not a crime; it would also empower prosecutors to pick and choose defendants almost at will, for reasons that often smell of politics. (I say only on the surface because a group of senior lawyers in the Justice Department have formed a work group deciding how best to live in creative harmony with this rule. Expect more creative prosecutions.)
But the honest services claim was only one part of Skilling. The former Enron executive also claimed that he had been deprived a fair trial by the trial court's decision to grant his motion for a change of venue. Among other things, the panel of jurors was so saturated with hostility whipped up by the media, that sitting an impartial jury was impossible, he claimed. Try as it might, the trial court could not, and did not, seat a panel of jurors prepared to decide the case solely on the evidence presented in the courtroom.
Skilling's lawyers asked for lawyer-conducted voir dire as a means of flushing out bias and making a record in support of a change of venue. The trial judge denied the claim, stating that in his experience jurors were more candid with judges than lawyers. Only a federal judge who has never tried a case could buy this specious swill. The conduct of voir dire by federal judges is almost always a farce. Put an authority figure in a black robe on an elevated perch and set him lose on prospective panelists: most would-be jurors are so intimidated they'd agree to just about anything the judge suggests with his questions. This God-in-the-box form of voir dire is meaningless. Almost no one is prepared to challenge the mighty Jehovah when he sits wielding a gavel. Distrustful as folks may be of lawyers, they are at least more inclined to be honest with them.
I recall a case in Bridgeport years ago in which a federal judge permitted lawyer-conduced voir dire. I was the last lawyer in a series of lawyers to speak. The panelists were tired and irritable by the time I was permitted to speak. One of them took a verbal swipe at me early in my questioning. The hostility spread like wildfire. Soon, several wiseacres were challenging me, suggesting my client would be better served by a better and different lawyer. I hung in there, thanking the folks for their honesty. I was afraid of that group, but treated them with respect. The respect was returned a weak or so later when the jury acquitted by client of worker's compensation fraud charges. I would never have learned about the dark underside of that group so long as the judge chirped along, producing polite, almost grade-schoolish answers to his questions. Judge conducted voir dire is, I repeat, a farce.
But few on the Supreme Court saw that in the Skilling case. The glittering intellects sitting on high buy what is printed on the page, and why shouldn't they, since that is all they ever see of a trial court? Writing for the majority, Justice Ginsburg cited the trial court's confidence in its ability to get candor from jurors as though it was an authoritative pronouncement. That is simply not credible, as any trial lawyer with more than a court trial under his or her belt will tell you.
What's worse, the majority was so in love with the cold record in this case and so lacked critical perspective that it accepted the claim that jurors were not biased once they but uttered the pledge that they could be fair. Never mind the halting and confused comments leading to this profession of faith. All was forgiven once a juror but declared she could believe.
Justice Sotomayor was not so easily fooled. I submit that is because she has been an advocate in a courtroom. She knows a thing or two about how jurors react when facing a judge determined to pick a jury as quickly as possible. (It took all of five hours to select the Skilling jury, this in a town ravaged by the Enron bankruptcy.)
Consider the following: Jurors were selected who expressed reservations about whether they could be fair and had intimations that Mr. Skilling might just be guilty before the evidence began. It wasn't enough for a juror to be disqualified as biased if they uttered "shame on him," of Mr. Skilling. One potential juror couldn't honestly say whether he could afford Mr. Skilling the presumption of innocence. That's OK, the trial judge ruled, so long as the juror could ultimately be persuaded to answer yes to a question about whether he would acquit if the the government failed to prove doubt beyond a reasonable doubt. Sotomayor's dissection of the trial judge's voir dire, see page 33 of her dissent, is grim reading. It seems the trial judge was disposed to sit just about anyone with a pulse.
Justice Sotomayor, joined by Justices Stevens and Breyer, would have reversed Mr. Skilling's conviction because she thinks his panel was unfair either in appearance or in fact. I submit her dissent would never have been written if she had never seen with her own two eyes just what goes on in a courtroom. She knows that a record reflects words on page, but that those words are but a reflection of a more nuanced reality. Her dissent is a sobering reminder that the quality of justice meted out by the high court is a reflection of the experience of the justices presiding. A court composed largely of jurists who have never been other than tourists in a courtroom is a court less credible than it ought to be.
We need more trial lawyers on the court. The work of evaluating the fairness of a trial is too important to be left to rank amateurs.