Joe Palazzolo has this report from the Wall Street Journal’s Law Blog about the Tenth Circuit’s decision in United States v. Turrietta, which reinforces the lesson that a lawyer usually cannot sit by while error occurs and successfuly take advantage of it later. What makes this case interesting is that the error at issue occurred at a point in the trial that nearly all participants take for granted — the swearing-in of the jury.
Turrietta was charged with assaulting a law enforcement officer. At his trial in federal court, the jury was not sworn. Turrietta’s attorney noticed this, but decided not to say anything about it, hoping to assert the failure as error warranting a new trial should the jury decide that Turrietta was guilty.
The jury found that Turrietta was guilty as charged. After the verdict was read and the jury discharged, defense counsel claimed the jury’s verdict was a nullity because the jury was not sworn. The district court did not grant relief, and on appeal Turrietta asserted that the district court’s failure to swear in the jury deprived him of his Sixth Amendment right to a jury trial.
The Tenth Circuit, in an opinion by Judge Terrence O’Brien, held that Turrietta forfeited the error by not making a timely objection, noting that defense counsel’s “considered and measured silence demonstrates the need for a contemporaneous-objection rule. He did not invite error, but he compounded it. The law takes a dim view of such tactics.”
The Court also rejected Turrietta’s claim under the plain error test, because no court has yet ruled on whether the Sixth Amendment requires that a jury be sworn, and plain error usually does not exist where the law is unsettled. The Court also found that the error, if error it was, did not affect Turrietta’s substantial rights, because nothing in the record suggested that the lack of an oath affected the jury’s verdict. The jury’s unsworn status also could not be said to have affected the integrity or fairness of the trial, given the overwhelming evidence of Turrietta’s guilt.
On this latter point, Judge O’Brien added, “If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding [defense counsel] for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.”
This case serves as yet another object lesson of the principle that it is never a good idea for a trial lawyer to say nothing when an error is committed in the hope of taking advantage of it later. Such hopes are nearly always disappointed.