May It Please The Court
Federal judge was biased, jurors in Jeremy Johnson trial say
By Tom Harvey The Salt Lake Tribune (Published: June 30, 2016)
A juror says the conduct of U.S. District Judge David Nuffer was "at times downright embarrassingly nasty" toward the defendants and an attorney during the trial of entrepreneur Jeremy Johnson. Another says she was "very disturbed by what I witnessed" during the trial earlier this year.
Affidavits from the two jurors and a sealed affidavit from a third juror were part of Johnson's attorneys' motion asking that the comments be taken into account when Nuffer rules on motions for a new trial and as factors in sentencing.
The jury sat through a two-month trial and, after six days of deliberations, found Johnson guilty in March of eight charges of providing false information to a bank. But the panel also acquitted him on 78 charges related to allegations of bank fraud, a statistically remarkable outcome for a defendant who acted as his own attorney.
Nuffer during the trial was at times openly hostile to the two defendants who represented themselves, and especially to defense attorney Marcus Mumford, who clashed with the judge numerous times. Nuffer summoned security officers to the front of the court several times during the trial after Mumford tried to argue a point; one day, Nuffer called several timeouts to keep the courtroom silent for a minute.
Under federal rules of evidence, a juror is not allowed to testify about things that occur during deliberations, on the effect of anything concerning a juror's vote or on the mental processes that led to a verdict.
But Johnson's attorneys, Karra Porter and Mary Corporon, who started representing Johnson after the verdict, argue that juror statements can be used in this case because Johnson is arguing that his constitutional rights to a fair trial were violated. Such statements also can be used to show "extraneous prejudicial information" or an improper "outside influence" on the jury and as part of an inquiry into an "ambiguous or inconsistent verdict," the attorneys wrote in their motion.
Prosecutors asked Nuffer to strike Johnson's motion within hours of its filing.
The motion violates a court's order that prohibits more filing in support of Johnson's motion for a new trial or acquittal, they argued.
Johnson's motion "is legally frivolous," Assistant U.S. Attorney Jason Burt argues, "and it seeks to admit affidavits from jurors in Johnson's trial that appear to violate" Nuffer's order forbidding direct contact with jurors unless approved by the court.
"Neither Johnson nor his counsel get to ignore court orders simply because he is Jeremy Johnson and whatever filings he makes are sure to draw press attention," Burt wrote.
The filing violates rules of evidence and is not supported by prior court decisions, he said.
In her affidavit, the juror identified as No. 9, and identified in media accounts as Kathie Cox, said she found Nuffer's tone toward the prosecutors from the U.S. attorney's office was "level, calm and with professionalism."
In contrast, Cox saw Nuffer's treatment of the defense "in a manner that was brusque, short on patience and at times downright embarrassingly nasty."
Juror No. 6, Shelly Riley, said she had served as a courtroom observer for the Utah Judicial Performance Evaluation Commission and was trained to observe and evaluate judges.
Riley labeled as "very disturbing" Nuffer's treatment of Johnson, codefendant Ryan Riddle and Mumford, who represented the third defendant, Scott Leavitt.
"Based on what I observed during the trial in my role as a juror, I reached the unavoidable conclusion that Judge Nuffer was very openly biased in favor of the prosecution and against the defense," Riley said in an affidavit.
She also cited comments by Nuffer during the trial that she said "were misconstruing evidence that the defense was presenting."
"I was offended how he treated Mr. Mumford in particular like a child," Riley said, "making a show of having to call the court security officers a number of times when Mr. Mumford was speaking, as if he was saying something so offensive that it was contrary to the law."
The defense, Cox said, was "handcuffed by the judge, and he wouldn't let important evidence in."
During the trial, Nuffer also made sure the record was complete a number of times "for the appeal," Cox said. That troubled her because "it seemed to the jury that the judge was assuming the defendants would and should be found guilty."
Nuffer's comments on an appeal, Riley said, leaked into deliberations when the jury got stuck on an issue and some jurors tried to resolve differences by saying that the defendants could "just appeal it."
The judge's remarks about appeal, Porter and Corporon argue, caused the jury to "reach its verdict, not based upon the evidence or the law, but rather upon the court's comments."
Riddle also was convicted of the eight counts. He and Johnson are scheduled to be sentenced July 29.
Leavitt was acquitted of all charges.
The allegations stemmed from
Johnson's operation through 2010 of an online marketing company called I Works
that sold goods or services, such as details on how to obtain government grants
for personal expenses.
QUESTIONS TO PONDER:
- What are your thoughts about judicial bias and/or courtroom demeanor?
- If you were to appear before this judge, would you have confidence this judge would treat you fairly? Why or why not?
- What would you propose as a 'judicial' remedy for situations similar to this?
SOURCES:
Model Code of Judicial Conduct (americanbar.org)
https://archive.sltrib.com/article.php?itype=CMSID&id=4064521
This is appalling and frustrating to think that the individuals either elected or appointed to uphold the justice system could be the ones jeopardizing it. Maybe, at times, I am too trusting of those in positions of power, the thought of a judge displaying prejudice against anyone in their professional place of business had not crossed my mind.
ReplyDeleteI am not sure if you purposely omitted the reason as to why the judge was bias towards the defendants, whether it be race, gender, the nature of their crime etc., but after knowing how this judge handled this case, I would not be confident in a fair trial being upheld.
One remedy I can think of ties in with Juror 6, the observer of judges. Say, every quarter, an observer anonymously sits in a judge's court room and relays their observations. My question here is who takes these observations and what could possibly be done with them? Interesting read, thanks!
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ReplyDeleteAs Arin noted, this is quite troubling if in fact some of these jurors' comments are true or even close to reality. Glen, thanks for posting the link to the "Model Code of Judicial Conduct." I have always assumed an ethical code or standard was set for judges. I hope we can talk more about judicial conduct in class or people can share their knowledge in the blog. I realize it's not super central to our 'Laws and Lawsuits' class, other than, as facts matter, judges matter! The one time my wife and I have been named as defendants in a case, our attorney's first focus was jurisdiction. After this class, I realize why. Our case could have gone state or federal and he named off the possible state and county judges who could possibly preside. Since this is a public blog I can't use his vocabulary, but he had very defined opinions about judges. Fortunately our case was settled out of court. How hard is it to censure or remove a judge that is appointed? Elected judges are somewhat obvious, vote them out. But I've never heard a story of one not being reelected. I'd be interested to know what others have to say about the supervision, if any, is in place for judge
ReplyDeleteGlen, great post. I have a little experience with this case as I was part of the jury pool for it and when through selection all the way to the final jurors. I was thankfully not selected, but it was an interesting process.
ReplyDeleteTo respond to this, I feel judges should be held to a high standard of conduct. Treating the attorneys or anyone involved with the case with anything but respect is not appropriate. With the lifetime appointment for federal judges, it is something to think about if there should be a process for removal or at least a code of conduct they are held to and disciplined for not following. Many professions have that and the judicial branch should not be any different.
Now, to be on the other side of it, I am sure that attorneys will use their behavior to try to get under the skin of their opposing counsel or to intimidate the witness and bring out emotions or frustrations they can use. This may be just on television, but I could see it as an effective tool. I'm sure that behavior could be very frustrating to a judge as it changes the culture in their courtroom and removes the level of control and civility. Snapping at those people who do that would be a natural reaction. Based on the article, it does not seem to be the case due to multiple jurors seeing it as unfair as well.
If I was privy to more information or had seen the behavior first hand, I would have some anxiety appearing before this judge. I would have hopes that the judge would be impartial, but there would be doubts.
I do think there should be a code of conduct for judges especially in the courtroom. Disciplinary action for judges who do not practice that code in their courtroom should be sanctioned. The judges that are elected have a checks and balances system, but lifetime appointments are much harder.
I agree with others that this kind of behavior by a judge is horrible. As a juror, I would find it hard not to speak out and I'm glad that a few of them did. I agree with Arin that having an anonymous observer would be beneficial--but would come at a great cost, though even just the threat of random "audits" might be enough to make a judge like this behave. To answer Glen's other questions, both judge and jury should appear neutral and weigh all the information without the bias of a supposedly impartial party coming through. If I were to appear before the judge, I would be worried about impartiality knowing his past behavior.
ReplyDeleteWhew! This one brings back some memories. I followed this case and the cases related to Jeremy Johnson involving Mark Shurtleff and John Swallow when all of this was happening since there was a small connection to my case. (That’s a story for another time.) It was SUCH a tangled web and there were so many moving pieces. As a bystander, I couldn’t help but feel these cases took a toll on all of the people involved, including the prosecution and from Judge Nuffer based on the reports of his agitation on that day. I also know that Marcus Mumford had a reputation for outbursts and theatrics that had gotten him in trouble before this case and many times after. I feel safe in assuming that Judge Nuffer was no stranger to this fact.
ReplyDeleteWhen I think about judicial bias/courtroom behavior, I can’t help but think that to some degree, it will always exist. The ideal state of the system is to be unbiased, of course, but it is made up of humans and humans come with inherent bias. Some of these humans just to happen to be powerful players in the justice system and there is no denying that there are some who have used that power inappropriately. This was the case in 1969 when Bobby Seale was made part of the Chicago 8 case (later referred to as the Chicago 7) and after numerous outbursts by Seale, including insulting the judge, Judge Hoffman had him bound and gagged in the courtroom. Many have asked, “Well, what would you have done in that situation?” My answer… NOT THAT. Even today, one can scan the headlines and find multiple stories about judges behaving inappropriately, as Judge Nuffer did with Jeremy Johnson and Marcus Mumford. It’s just reality.
You asked, “If you were to appear before this judge, would you have confidence this judge would treat you fairly? Why or why not? Fun fact… I have appeared before Judge Nuffer. In my hearing, he was professional and courteous. Granted, I was in a panicked state knowing that all eyes were on me and knowing that was the moment that I would find out what my sentence was, so I may have blocked some of it out. I do remember that I could barely hear him over the sound of my heart beating in my chest but that I came away from that situation being extremely grateful that all members of the court were professional and did their jobs in a very kind and succinct manner. My hearing lasted all of ten minutes.
As far as a judicial remedy for either perceived or apparent bias shown by a judge, the defendant can appeal the case and use the judge’s behavior as part of their argument. Hopefully, they can convince an appeals court that the inappropriate behavior had a direct impact on the outcome of their case. Other than that, it doesn’t seem to me that there is much recourse. As part of an investigative series called “The Teflon Robe”, Reuters writers Michael Berens and John Shiffman, looked at 1,509 cases from 2008 through 2019 where judges “retired or were publicly disciplined following accusations of misconduct” (Berens and Shiffman, 2020) and found that 9 out of every 10 were permitted to return.
Berens, M. and Shiffman, J. (2020, June 30) Thousands of U.S. judges who broke laws or oaths remained on the bench. Reuters.
https://www.reuters.com/investigates/special-report/usa-judges-misconduct/
Thanks, Glen, for the post and also the link to the "Model Code of Judicial Conduct." I was surprised at how short and succinct the 4 cannons were, especially after reading Federal Rules of Civil Procedure;-). The words that jumped out at me were: impartial, independent, and integrity.
ReplyDeleteThese principles, according to the news article, were not representative of Judge Nuffer during this trial. However, Stephanie's fun fact gave us a different view of the judge. This begs the question as to what could have caused a perceived bias in the Jeremy Johnson case. Did Jude Nuffer want to prove something--perhaps that the defendant should have been represented by legal counsel, i.e. someone that was familiar with legal procedures, so his courtroom would run smoothly?
It is a citizen's right to defend themselves, but if I were defending myself, I would certainly have a lot of procedural questions that could certainly slow things down. I believe I would be easily intimidated by the behavior of Judge Nuffer, particularly if I was defending myself. If he acted similarly to my legal counsel, I would be questioning my choice of legal counsel--also very intimidating as the defendant.
I, too am very intrigued by the juror who sat in court rooms to observe judicial behavior and wonder if it was only to collect data. Judges serving for life need some kind of oversight, but by whom and how? We have set them on a pedestal. But, are they above the law? Are they above the rules set out in their self-declared canons?
Do you think there is too much trust in the judicial system that has led to naivete by the general populace?
DeleteCristobal, in answer to your question, I would answer no, not in today's world. There is plenty of mistrust in the world of social media. However, a life appointment does add a sense of trust to the position and the person.
DeleteIt is a delicate balance. A life appointment assists judges in freely defining the law without regard for public opinion. What check is provided to that balance? I have not yet read the article Stephanie referenced, but it might provide some answers.
Apologies for the 2 typos! Jude Nuffer has no reference the the pop song from eons ago. And cannons--the shooting kind--is far off from canons as standards to live by.
ReplyDeleteI read this news earlier today. It is related to this: https://thehill.com/regulation/court-battles/574244-131-federal-judges-failed-to-recuse-themselves-from-cases-in-which
ReplyDeleteTo be honest, I haven't experienced unfair treatment in the courtroom. Suppose I am in this situation, I would get unfair treatment from this judge because of my race and being Deaf, and he probably won't be willing to cooperate with me.
I know it will be difficult to remove a judge that is appointed, but I believe there is a way to remove the judge with a conflict of interest. Law is so complicated with very limited with our choices.
I am about to respond with this article in mind! I'll add my perspective coinciding with your response.
DeleteI will add that a person's communication style, if minoritized by society, can be a deterrent to a fair and speedy trial. I do not place full blame on participants of the system but rather those that are in positions of power and influence within the institution. Perpetuating inequalities based on a judge's bias is expected, to be frank. I will expand on this more in my post. Thank you for posting this, Itzel. <3
Very interesting read, thanks Glen. It does bring up some good points about judicial bias, and as Arin said, I also may be too trusting of those in power. When you walk into a courtroom, you would expect the same treatment as anyone else that walks in. I do wonder where the "very disturbing" behavior came from as Stephanie provided some additional insight to this judge. How often does this behavior happen and we just don't hear about it? I like the idea of the court observer but how do you also ensure the observer also leaves any bias out of the courtroom?
ReplyDeleteThank you for writing this blog post and sharing your thoughts. I will say, many people with negative experiences involving the state and folx with marginalized and minoritized identities and circumstances tend to have feelings of suspicion and paranoia toward public institutions. I am not surprised to read about what had occurred between the judge and the individual that represented himself.
ReplyDeleteBias within the US Judicial System has existed from the inception of this nation. Whether it be a gendered, classist, racist, and/or ableist bias, the discrimination in the legal system is not a discrepancy but rather an inherit characteristic of the (in)justice system, which "start[s] before the first contact and continue[s] through pleas, conviction, incarceration, release, and beyond." (American Bar Association, Shasta N. Inman, 2021)
"A central part of the mythology of the criminal justice system in the United States is that everyone is treated equally, regardless of his or her race or class. The concept that no one is above the law is a noble one. Like many good ideas, reality usually lags far behind the rhetoric." (The Crime of Being Poor, Pau Wright)
Many people with minoritized and marginalized identities and circumstances need to act from a default point-of-view that a negative bias toward you exists irrespective of one's merit. So, no. If I were to appear before this judge, I would not have confidence this judge would treat me fairly. After all, the courts exist to retain power amongst the powerful. When taking into account the experience of the various and numerous indigenous tribes and nations across Turtle Island (North America), the courts decided the futures of many American Indians and their culture and posterity.
Reminds me of the current situation happening in the occupied territory of Palestine by the colonizing Israeli Defense Forces. The indigenous people of Palestine have lived in the neighborhood of Sheikh Jarrah for decades and the Israeli settlers are hoping the Israeli court evicts families from this block. Although Israeli Officials have called it a "real-estate dispute between private parties," Israel's Supreme Court is deciding if the 13 Palestinian families should be evicted. Palestinians have stated that any ruling from a settler court will skew to the settler's themselves. After all, why would a court rule against it's own validity in matters of national sovereignty?
I have come across many people that feel the same way here in the United States. An all white jury deciding the fate of a black individual. Poor people suing large corporations. Native Americans and their respective nations being stripped of sovereignty. Their is justice in the legal system, but I do believe it is a legal system that is bias, just like every other public institution and system. Once this is acknowledged, a comprehensive and critical analysis can be effectuated.
How Judge Nuffer acted in the courtroom, I wouldn’t be surprised if it had an effect on the jury’s verdict. If a Judge acts negatively towards the defendant, the jury who has faith in the authority of the courtroom may be influenced in feeling similarly. If I witnessed this case, and Judge Nuffer acted out as alleged by Cox and Riley, I would fear that I would be treated unfairly in the future if I were a defendant in his courtroom. As everyone has stated, judges should be held to a higher standard. My only knowledge of judicial evaluations is that they’re used for voting to determine the retention of judges. Lifetime appointed judges are an exception, but in addition to judicial evaluations, there should be other accountability mechanisms. Similar to teacher evaluations, maybe other judges should randomly sit in the gallery of hearings and submit evaluations of their own.
ReplyDeleteMLS Friends: Thank you for the comments. Some have inquired about events leading up to the incidents referenced in this article and what occurred during the Johnson trial. Stephanie and Trina, in their posts above, touched on some. There were several incidents and a pattern of outbursts and behaviors by defendants, attorneys, witnesses and even courtroom spectators. This was a high profile Utah case - the Media was present daily and I can say without reservation, and with respect for what the Court was having to deal with, the Media was not reporting accurately every day. Jurors can elect not to talk with the media after a verdict. Many choose not to. There are hiccups in the system, no doubt. I am not excusing anyone here. Believe me, during a seven week trial like this one, no one never knew what to expect day in and day out.
ReplyDeleteIt's ironic this topic came up this week, because I recently had a situation with another Utah federal judge which made me think about the parameters and process of removing a federal judge. I have seen this judge regularly misquote, misinterpret, misrepresent, and/or outright ignore relevant facts at sentencing hearings.
ReplyDeleteIn any profession, generally, people perform their job admirably. But there are always a handful that seem to make a bad name for the entire profession. Judges are no different.
Although Article I of the Constitution allows for impeachment of federal judges through the same process they would the President, it is incredibly rare. "With respect to federal judges, since 1803, the House of Representatives has impeached only 15 judges – an average of one every 14 years – and only 8 of those impeachments were followed by convictions in the Senate," and it is typically done for, "...making false statements, favoritism toward litigants or special appointees, intoxication on the bench, and abuse of the contempt power." (https://www.brennancenter.org/our-work/analysis-opinion/impeachment-and-removal-judges-explainer)
After my experiences with the other judge, I often question the benefits of lifetime appointment for federal judges. What happens if a judge starts to suffer from cognitive decline? Would it be beneficial for the removal of a judge to be easier?
I've actually thought about these questions many times and, honestly, I still don't have an answer (lol). Like anything else, when you change one thing, there is likely to be unintended and unforeseen consequences. One of the major reasons for lifetime appointment of federal judges is to insulate them from outside pressure. If we start adding anonymous auditors to courtrooms would it have the intended effect of holding the court more accountable, or would it just create new, different biases in order to "pass" the audits? We've all received feedback on our job performance in the past, and I'm sure many, if not all of you, have had that in your mind for at least the next week while performing your duties. If a judge is told he appears to be showing too much favoritism towards the prosecution, he/she is likely to then start second guessing every ruling in their favor.
Additionally, in todays political climate, making it easier to impeach federal judges would be an absolute disaster. Can you imagine the chaos that would ensue in the judiciary if the the parties just started impeaching judges they didn't like every time they gained the majority?
Overall, I think the consequences of making it easier to impeach a judge would be too far-reaching. But, every time I come to that conclusion, a little voice in the back of my head says, "Yeah, but what about the judge that maybe doesn't rise to the level of a typical reason for impeachment, but is regularly showing a disregard for the Model Code of Judicial Conduct? Or, in what I believe is the case with this other judge, is showing signs of cognitive decline?"
Side Note: On it's face, the news article certainly makes it seem like a case of favoritism towards litigants (which is an impeachable offense); however, as some of you touched on, as I was reading the article I was thinking of what the other side of the story entailed. Like Glen, I'm not excusing the behavior and, if anything, I think one of the most important qualities a judge needs to possess is the ability to bite his/her tongue, stay fair, unbiased, and cool in any situation. But, to add a little humanity to the story, I have worked with Judge Nuffer personally, and I've always found him to be friendly, approachable, fair, and caring. Thank you, Glen, for adding a little more context.
Glen, first, thank you for adding the article here. I don't know why my links didn't work either, and I wish I had thought to have added parts straight into the blog to make it easier.
ReplyDeleteI found it very interesting to hear from the jurors in this case. I know it happens, but it is not something I have often come across. Before getting to the juror who had served through JPEC, I had already been relating to my own experiences participating in reviewing judges. I found myself wondering if he would be up for retention election and what the reviews might say. I remember hearing in the training that oftentimes the judges are good at picking up on who might be visiting the court for that reason and tend to be on their best behavior. It makes me wonder how many of them do change and what reviews are credible.
If I had to present in front of this judge, I think I would be worried. I also wonder if the treatment had something to do with the defense representing himself. I wonder if there was a bias towards that specifically, and a subconscious need for the judge to make a statement, and/or feel as though he needed to demonstrate greater authority and/or power. At least asserting power is how it came across to me. It may not be anything about how he judges otherwise, which according to Jacob's post may be the case. There may also have been a bias amongst the jurors. While that may sound unlikely due to how many of them felt similar, that can happen with confirmation bias.
Regarding judicial remedy, that's hard as I believe JPEC was put in place to serve as that remedy, though as I noted it may not always be effective. I wonder if special training would be beneficial specifically when dealing with defendants representing themselves. It may be entirely possible they receive this as I am not aware of all the steps taken to become a judge.