There’s an old bright line rule about whether judges should mention the appellate process to juries. The subtext is that you shouldn’t do it at all. The literal rule is that you shouldn’t do it in a way suggesting that the defendant is going to lose the trial. The Supreme Court recently reaffirmed on old line of cases on this point. But a dissent in that case followed by a concurrence in an even more recent case, suggests that this rule is changing. This is a tale of two cases enveloped within a tale of even more cases, dating back to the nineteenth century. Keep reading, it’s way more fun than I’m making it sound.

The Faustian Bargain

If you pull up Gibson v. State on Lexis, you’ll see that there is now a big ole yellow triangle in the heading. Click on the triangle, and you’ll arrive at State v. Clements. When you get there, you’ll see that Justice Nahmias and Carley, the dissenters in Gibson, are the reason that the yellow triangle appears. The issue in both cases is whether judges should be in the business of talking to juries about the appeals process and what should happen to their reversal rate when they do.

In Gibson, the jury wanted to read some statements during deliberations that had been tendered at trial. The judge said no, and then he elaborated: “They are supposed to be read like any other testimony, and it would be reversible error for me to give you all the exhibits.” The Court reversed, reasoning that the comment intimated that the defendant was guilty and would need to “appeal his forthcoming conviction.”

It turns out that there is a history of this sort of thing. The Court in Gibson cited the 1966 case of Faust v. State where it reversed a conviction after the judge told the jury that “there are certain which cannot be removed from the indictment, and I am of the opinion it would be improper and maybe reversible error by the Appellate Court if I allowed you to see the indictment with these several entries hereon.”

But there is even a longer history than that. In 1857, when a fictional Scarlett O’Hara would not have even had her learner’s permit to drive the wagon yet, a trial judge told a jury that he “was responsible to the Supreme Court, if he committed an error; that he was a fallible being and liable to err, and that they might under the statute, decide against his opinions of the law, if they thought proper to do so.” Of course, these facts are unique on their face. Indeed, there is likely no other time in the history of Georgia when a Superior Court judge referred to himself or thought of himself as a “fallible being” or “liable to err.” Nevertheless, it is interesting to note that the Supreme Court did not reverse but gave the trial judge a good scolding: “all reference to the Supreme Court, with by trial court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.” Ah, yes. The judicial scolding. Nothing signals the offending party that they’re about to get away with something like a judicial scolding. And the dissenters have picked up on it. The 19th-century Supreme Court and the modern Georgia juvenile court share this quality. For you new lawyers out there, when the juvenile judge starts yelling at pee wee, slip a note to mamma telling her to chill out, because pee wee’s going home.

For the dissenters in Gibson, the trial court’s “good talkin’ to” was dicta and serves as a fairly bad foundation for the kind of bright line rule that the Court in Faust constructed. Equally shifty, according to the dissent, was the foundation provided by the 1944 Bryant case, where a prosecutor withdrew an objection to a question posed by the defense, adding “I will withdraw my objection; the Supreme Court – I am scared of the Supreme Court.” Again, the case was factually unique. When was the last time a prosecutor changed course out of fear of a Georgia appellate court? Again, the dissent notes that the prosecutor got a lecture but no reversal of the conviction. Did you note the irony? In Georgia history, lawyers and judges who said that they were afraid of the Supreme Court were told that they should be afraid of saying that they were afraid of the Supreme Court.

Before Gibson, the dissenters reason, the admonition: “don’t be a bonehead. There’s no reason for you to start talking about appeals with a jury” was merely aspirational. With the rule in Gibson, it’s now the law.

Having dispensed with the foundation for Faust, the dissenters then turned to analysis of  how little the average juror knows about the process.

Take the Average Juror (Please)

For the dissenters, it is a real stretch to assume that the jury would really know that all that talk about appeals means that the judge thinks that the defendant is about to lose the trial. Justice Nahmias writes, “my own experience is that many lay people are unaware of it and some are surprised by the notion that the State does not have the same ability as the defendant to appeal a verdict.” But even if we assume that they know the law in this area, the dissent goes on, how would talking about the appeals process harm the defendant? It might encourage jury nullification, after all, since the State has no remedy for an acquittal, and the jury owes nobody an explanation for its verdict.

And, the dissent continues, it would be quite a leap to assume that the mere mention of the appellate process by a judge presumes that the judge thinks that the defendant will be convicted or that such a presumption would even matter since even the densest of jurors would understand at some point that the juror, not the judge, is the trier of facts.

The part about the average juror, to me, is the most slippery part of the dissent. “Average people” think all sorts of crazy stuff about the appeals process. I know, because I find myself trying to explain my job quite a bit in social settings to non-lawyers who ask me about my job. Even after explaining that I’m in private practice, lots of people ask me if I prosecute or defend people. And when I explain that I do criminal defense but that it is mainly post-conviction or appeals work, I get either a nod of understanding (from the PBS watching crowd), a blank stare (from the Entertainment Tonight watching crowd) or a full plate of “how can you sleep at night? These criminals get too many appeals? I can’t believe all these people get off on technicalities” (from the Fox News watching crowd).

The trouble is that this is Georgia. And there aren’t enough strikes available to winnow out the Fox News people. And when they hear the word “appeal,” they are thinking something very different than the other average jurors.

Indeed, it’s hard to disabuse clients, no matter how hard one might try, of the notion that you can’t appeal on the basis of “Officer Rogers was a big fat liar.” And most people have unrealistically high expectations of how easy it will be to win the appeal. Do we assume that the average juror knows how hard it is for a convicted defendant to win on appeal? Can we presume that they know the odds any better than the average appellate client? The real harm on mentioning an appeal is that the average juror will not realize just how big the stakes are for the guy on trial. It’s not like football games in the backyard where there’s a disputed call. The appeal is not a “do-over.” And I know that. Does the jury?

So What?

The dissent in Gibson is getting some traction. Hence, the big yellow triangle. In the concurrence in Clements, the dissenters from Gibson note that the Court is going where they should have gone when they decided to that case, with “don’t mention appeals” as an advisory goal and not as a legal rule. And if you look at the reasoning from the majority in Clements, they are exactly right.

The problem is that it is a dangerous thing to start telling jurors about the appeal. And it really is unnecessary. Advisory rules, such as “don’t eat sweets,” are nice. But they don’t have the force of law. And I’m not sure why you shouldn’t just mandate to judges not to talk about the appellate process? Why the big need?