The Judge and the Discharged Clerk Revisited

Abstract

were not satisfied in this case, so the lower court could not use that rule to sever ADM from the other defendants. However, Judge Posner argued that there were compelling reasons to allow the lower court to impanel two juries, with one to be excluded dur ing admission of the damaging evidence against ADM. First, this strategy of trial administration had not infrequently been used in criminal trials involving multiple defendants. Second, courts' ability in civil suits to impanel multiple juries "has not been denied"; in fact, a court had used it once before, in Martin v. Bell Helicopter Co., 85 F.R.D. 654 (D.Colo. 1980). Third, judges in civil trials must administer the rules "in a way that will minimize the likelihood that the jury's verdict will be a product of confusion or inappropriate emotion." 361 F.3d at 441. Indeed, according to Judge Posner, "Imaginative procedures for averting jury error, as long as they do not violate any legal norm, are to be encouraged rather than discouraged." Id. As to the possibility that the separate juries could render inconsistent verdicts, with one jury finding ADM guilty of conspiracy to fix prices but the other jury find ing that the remaining defendants did not conspire, thus making a conspiracy on ADM's part legally impossible, Judge Posner suggested that such inconsistency would not be fatal. Rather, any discrepancy likely would be due to the fact that the differ ent juries heard different evidence, so that "the inconsistency would be in result rather than in logic." Id.