United States v. Montez Day

956 F.2d 124, 1992 U.S. App. LEXIS 1356, 1992 WL 15607

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 4, 1992
• Docket: 90-6260
• Status: Published

Opinions

RYAN, Circuit Judge.

We have granted rehearing in this case to consider the government’s claim that on the original appeal we concluded erroneously that the district court erred to the substantial prejudice of the defendant in “sharply chastising Day’s counsel” at a sidebar conference conducted in the jury’s presence. Specifically, we said:

Day further argues that the court’s “scathing” criticism of his counsel unfairly prejudiced him in front of the jury. Because Day did not move for a new trial, the record does not establish whether the jury actually heard the court’s comments and thus whether the court’s comments prejudiced Day before the jury. Sidebar conferences with attorneys conducted on the record and out of the jury’s presence are an appropriate component of district court litigation. When, however, such conferences occur in the jury’s presence, this court will assume that the conference is within the jury’s hearing unless the record shows otherwise.

In its Brief on Rehearing, the government insists that “it is hard to see the logic” of our assumption that a “sidebar procedure is an empty formality that does not work as intended.” The short answer to the government’s difficulty in seeing the logic of our holding might be summarized in Justice Oliver Wendell Holmes’ statement that: “The life of the law has not been logic: it has been experience.” Oliver W. Holmes, The Common Law 1 (1881). The experience of some of the panelists at least, while sitting as trial judges, is that so-called “sidebar conferences” may indeed be within the hearing of the jurors. It is noteworthy in this case that counsel for the defendant asserted on the initial appeal that the district court’s remarks were within the hearing of the jury and nowhere does the government assert they were not.

However, for a very specific reason — one not brought to the court’s attention either by the government or by the defendant— we withdraw our holding that we assume, in this case, that the court’s criticism of counsel was overheard by the jury and thus contributed to the error that necessitates a reversal and new trial. We do so, not for any reason suggested by the government, but because, upon rehearing, the presiding judge of the panel has discovered a reporter’s note at page 345 of the Transcript in this case which reads as follows: “(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury.)”

That fact was not brought to the court’s attention by the government or by the defendant either upon the original hearing or upon rehearing.

In all events, in view of the reporter’s note there is no occasion to assume, in this case, that the court’s remarks “were within the jury’s hearing” because “the record shows otherwise.”

Upon a reassessment of the record and reconsideration of the arguments submitted upon the original hearing and upon rehearing, we conclude, for the reasons stated in our original opinion, 942 F.2d 354, independent of the district court’s statement chastising counsel, that Day’s conviction must be VACATED and his case REMANDED for a new trial.