Yeager v. Greene, 85-601.

Citation502 A.2d 980
Decision Date20 August 1985
Docket NumberNo. 85-601.,85-601.
PartiesSteven C. YEAGER. et al., Petitioners, v. The Honorable Henry F. GREENE, Respondent.
CourtCourt of Appeals of Columbia District

James Klein and Mark S. Carlin, Washington, D.C., were on brief for petitioners.

Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Linda Turner Hamilton, and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on brief for respondent.

Before MACK, NEWMAN and TERRY, Associate Judges.

NEWMAN, Associate Judge:

This case presents a novel inquiry regarding the power of a judge of the Superior Court to issue and implement an order allowing, among other things, for jurors to submit written questions to be asked of witnesses during a criminal trial. Yeager and Wills are defendants in separate felony cases pending trial before Judge Henry F. Greene.2 They filed a pretrial motion objecting to certain criminal trial procedures established by Judge Greene allowing jurors to submit written questions at the conclusion of a witness' testimony. Following a hearing, Judge Greene issued a detailed written order denying the motion and upholding his established procedures.

Yeager and Wills now seek a writ of mandamus directing Judge Greene to vacate the order.3

I Factual Background

Judge Greene disseminated a Memorandum to those attorneys scheduled to appear before him on his felony trial calendar. The Memorandum detailed several trial procedures that he proposed to follow. Among those cited were three with which Yeager and Wills took issue: (1) permitting, but not requiring, jurors to take notes; (2) admonishing the jury in advance as to the purpose of closing arguments, the propriety of argument, and the impropriety of the expression of personal beliefs or opinions by counsel during argument; and (3) explaining to jurors that they are discouraged from posing written inquiries to witnesses (because questioning of witnesses is generally the responsibility of counsel and the presiding judge), but setting forth a procedure to be followed in the event a juror did have a question.4

Yeager filed a pretrial motion seeking to bar implementation of these procedures. A similar motion was filed by Wills. The pleadings were consolidated for disposition of the common issues, and arguments thereon were heard by the trial court at a hearing on January 28, 1985.5

Following lengthy oral argument before Judge Greene, he issued a Memorandum and Order (Order) upholding continued usage of the enunciated procedures.6 The court found the arguments of Yeager and Wills without merit, stating that "no federal or state court has found cause to question the constitutionality of the procedure, and almost all courts have found selection of the procedure to be firmly committed to the discretion of the trial judge." Order at 31.

In upholding the validity of the juror question procedure, the trial court examined several cases from other jurisdictions holding that trial courts had not erred in allowing jurors to submit written questions to witnesses in criminal trials. Specifically, the trial court adopted the rationale set forth by the Fifth Circuit in United States v. Callahan, 588 F.2d 1078 (5th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979), stating that the formulation of such procedures rests within the sound discretion of the trial judge absent a statute or rule of court to the contrary. Callahan, supra, 588 F.2d at 1086-87. The trial court then detailed several "sound reasons to permit the questioning of witnesses by jurors if the procedure is undertaken with careful judicial control."7

The Order also outlined safeguards which would be observed in implementing the juror question procedure. The court first acknowledged the existence of a potential danger in allowing jurors to pose questions to witnesses, but concluded that any such danger is avoided if the trial judge "exercises careful control over the process from the outset of trial." Order at 24. Moreover, the court emphasized the importance of jurors not being permitted to proffer oral questions, and noted that the identity of the juror who posed a particular question must be concealed as contrary practices would interfere with the litigation process.

Second, the court cautioned that questions submitted by jurors should first be discussed with counsel, out of the presence of the jury, prior to approval so that counsel are provided an adequate opportunity for objection and review. Id. at 25. The court also noted that if a juror's question is approved and asked of a witness, "counsel should be afforded the opportunity to ask additional questions in any areas that might be opened by the jurors' question(s) or the witness's [sic] answer(s) to the question(s)." Id. at 26.

Finally, the court concluded that questions may only be submitted at the close of the witness' examination "so as to avoid interrupting or distracting counsel or other jurors, and to maximize the possibility that issues of concern to jurors will be addressed by counsel's examination and therefore will not prompt unnecessary inquiries by jurors." Id. at 25-26.

On April 10, 1985, Yeager noted an appeal from the pretrial ruling (No. 85-509), and on May 21, 1985, Yeager and Wills filed their petition for a writ of mandamus. On May 29, 1985, this court directed Judge Greene to file a response to the petition. By letter of July 15, 1985, Judge Greene advised this court that he would seek leave of the court to respond to the petition if he thought such a response necessary after the United States filed its response. The United States filed an opposition to the petition on July 19, 1985. Neither Judge Greene nor petitioners Yeager and Wills have filed additional pleadings.


The writ of mandamus is a part of the more general class of prerogative or "extraordinary" writs. The All Writs Act, 28 U.S.C. § 1651(a) (1982), prescribes the general statutory authority for courts of appeals to issue an extraordinary writ when "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Although a definitive standard for issuance of a writ of mandamus to a lower court has never been stated, traditionally the writ has been invoked by appellate courts only under "exceptional circumstances amounting to a judicial `usurpation of power'." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (quoting DeBeers Consol. Mines Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945)). The party seeking the writ must demonstrate a "clear and indisputable" right to have the writ issue. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 585, 19 S.Ct. 286, 288, 43 L.Ed. 559 (1899)). However, it has been noted that "where a matter is committed to discretion it cannot be said that a litigant's right to a particular result is `clear and indisputable.'" Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980) (per curiam).

The Supreme Court has repeatedly refused to issue a writ of mandamus where there has been no showing that a lower court has exceeded its authority or failed to exercise appropriate jurisdiction over a matter. Will v. United States, supra, 389 U.S. at 95, 88 S.Ct. at 273; Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Moreover, in Bankers Life & Cas. Co., supra, 346 U.S. at 383, 74 S.Ct. at 148, the Court refused to issue a writ, even though the lower court ruling may have been erroneous, so long as there was no abuse of judicial power and appellate review was available after final judgment. See also Parr, supra, 351 U.S. at 520, 76 S.Ct. at 917.

Pursuant to the All Writs Act, this court has authority to issue the extraordinary writ of mandamus to the Superior Court of the District of Columbia. See United States v. Kronheim, 80 A.2d 280 (D.C. 1951); Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 165-67, 417 F.2d 728, 733-35 (1969); see also 28 U.S.C. § 1651 (1982). We have recognized the writ of mandamus as an extraordinary remedy which may not be implemented as a substitute for an appeal and generally will not issue such a writ unless appellate review is unavailable. People's Counsel of the District of Columbia v. Public Service Commission, 414 A.2d 516, 518 (D.C.1980); Neighborhood Legal Services Program v. Ryan, 276 A.2d 728, 729 (D.C.1971). Moreover, in criminal cases, we have emphasized that a writ of mandamus is to be used sparingly, noting that its primary use is "`to confine [a]. . . . court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so'". Bowman v. United States, 412 A.2d 10, 12 (D.C.1980) (quoting Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at 26, 63 S.Ct. at 941.8

Yeager and Wills seek to justify the issuance of a writ of mandamus on the grounds that Judge Greene had no "discretionary" authority to invite juror questioning of witnesses in criminal cases. They urge this court to dispense with traditional prerequisites to the use of mandamus and issue the writ for "supervisory" or "advisory" purposes prior to a final judgment in these cases. In support of this proposition, they rely upon Supreme Court decisions in two civil cases, La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).9

In La Buy a writ of mandamus was issued by the court of appeals to a federal district judge requiring him to vacate certain procedural orders which were directly in conflict with the Federal Rules of Civil Procedure.10 Although we agree with Yeager and Wills...

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