In Re: Enke

Filing 14

Memorandum Opinion and Order. Signed by the Honorable James F. Holderman on 5/11/2012: Mailed notice (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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In re SCOTT C. ENKE, a Juror in a
Criminal Trial,
Respondent.

No. 12 MC 130

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
The law governing this proceeding is 28 U.S.C. § 1866(g), which states:
Any person summoned for jury service who fails to appear as directed may be
ordered by the district court to appear forthwith and show cause for failure to comply
with the summons. Any person who fails to show good cause for noncompliance
with a summons may be fined not more than $1,000, imprisoned not more than three
days, ordered to perform community service, or any combination thereof.
Scott Enke was summoned to appear for a two-week term of jury service beginning on Monday
February 27, 2012. (Ct. Ex. 1.) He was selected by the parties on March 1 and swore under oath to
“well and truly try the matters in issue now on trial, and render a true verdict” in the criminal trial
of United States v. Chhibber, 11 CR 119, before District Judge Suzanne B. Conlon. Mr. Enke served
as the trial proceeded on March 1, 2, 5, 6 and 7, but did not appear for jury service on March 8, even
though the trial had not finished and Judge Conlon had ordered the jury to return on March 8, 2012.
The matter was referred to this court, which ordered Mr. Enke, a representative of his
employer Covidien PLC, and Enke’s supervisor, Bob Bushok, to attend a show cause hearing. (Dkt.
No. 1.) The show cause hearing was held on April 20, 2012. (Dkt. No. 12.) For the reasons explained
below, the court finds that Enke has failed to establish good cause for his intentional absence from
his jury service on March 8, 2012.
BACKGROUND

According to the testimony at the show cause hearing, Enke works as a neurovascular
clinical sales representative for Covidien PLC, a medical device supplier that operates throughout
the United States. In that role, Enke travels around the Midwest selling medical devices to hospitals
and supporting doctors in the use of Covidien’s products. Often, Enke’s job requires his presence
in the operating room to assist the treating physician. The pay received by Covidien’s sales
representatives, including Enke, depends on the extent to which their clients use Covidien’s
products, but they do not necessarily need to attend a procedure to receive credit. Instead, sales
representatives routinely ask other Covidien employees to cover for them if they cannot attend a
scheduled procedure for one of their clients.
In January of 2012, Enke was scheduled to travel to Iowa City, Iowa, to support a doctor at
the University of Iowa Hospitals and Clinics in the use of one of Covidien’s products. The
University of Iowa Hospitals and Clinics is Enke’s biggest client. The doctor, Dr. David Hasan, was
scheduled to perform several procedures each using a particular Covidien product that had only
recently received approval from the FDA. To meet FDA regulations for the use of the product,
Covidien planned to supply a “proctoring physician” to assist Dr. Hasan. Just prior to the first
procedure, however, Covidien’s proctoring physician cancelled, and the procedures were
rescheduled for March 8 and 9, 2012.
Several weeks later, the hospital held a meeting attended by Enke and his supervisor, Bob
Bushok, which Bushok described as “a show cause hearing” with the hospital. At the meeting, the
hospital and Dr. Hasan demanded an explanation for the failure of Covidien’s proctoring physician
to attend the January 2012 scheduled procedures. The hospital then expressed its dissatisfaction with
Covidien and stated that if the March 2012 rescheduled procedures did not go forward as planned,

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Covidien, and Enke, could lose the account. Enke felt that the hospital’s threat meant that if he was
not present at the rescheduled procedure, he and Covidien would lose the University of Iowa
Hospitals and Clinics account.
When Enke received the jury summons in early February, he was aware that the rescheduled
procedures in Iowa were to take place on March 8 and 9. He did not, however, ask to be excused
from his jury service obligations or inform anyone associated with the court of his potential
scheduling conflict. Also, he did not ask Bushok to assist him in finding a replacement to cover the
procedures. After being selected to serve on the Chhibber criminal trial jury on March 1, Enke asked
for and received leave from his work at Covidien to serve as a juror. He did not, however, do
anything to avert the potential conflict between his jury service and the March 8 trip to Iowa. Enke
testified at the show cause hearing that because of his conversations with his fellow jurors and a
form he received from the court, he believed that the trial to which he was assigned would last only
three to five days. Enke did not produce the “form” he said he received. In fact, no such form exists.
The transcript of the trial reflects that Judge Conlon told the jury on March 1 that the trial was
“expected to take approximately one week.” (Covidien Ex. E, at 5.)
On Thursday, March 1, Enke reported in an e-mail to Bushok that he had been selected to
serve on a jury. Enke also testified at the show cause hearing that he spoke to Bushok on the evening
of Friday, March 2, told him that the trial would continue into the next week, and brought up his
scheduled trip to Iowa. According to Enke, Bushok commented that the trip to Iowa would be an
“interesting situation,” which Enke understood to mean that the University of Iowa hospital would
not like it if Enke did not attend the scheduled procedures. Enke then told Bushok that the
procedures in Iowa would not go well if he was not there. Enke still did not ask for a substitute to

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cover for him on the Iowa trip, nor did Bushok offer to assist him in finding one. Bushok testified
that he did not remember this conversation, although he recalled discussing the Iowa case in general
with Enke many times during Enke’s jury service, and he stated that he was under the assumption
from Enke that the trial would be over before March 8.
On the evening of March 7, the day before Enke intentionally failed to appear for his jury
service, Enke telephoned Alberta Rone, Judge Conlon’s courtroom deputy clerk. He explained to
her that he had to travel to Iowa for work the next day and that there was no one to take his place.
He then stated that he did not know if he would be able to appear for his jury service in the trial the
next day. At that point, Enke’s account of the conversation diverges from that of Rone. According
to Enke, Rone told him that he was excused from jury service. Rone reported, however, that she told
Enke that she did not have authority to excuse him but that she would tell Judge Conlon. Rone stated
that Enke then repeatedly asked to speak with Judge Conlon. Rone told Enke that Judge Conlon had
left for the day and that she would report his message to Judge Conlon. Enke then insisted on
speaking to someone else. After that, Rone transferred Enke to Judge Conlon’s voice mail. Enke left
the message that he could not be in court the next day. Then, Enke called Bushok and informed him
that he was excused.
The next morning at about 8 a.m., Rone, after talking with Judge Conlon, called Enke and
told him that Judge Conlon had said that he needed to report for jury duty, and that he had been
excused. At that point, however, Enke was several hours away from Chicago on his way to Iowa.
He responded to Rone that he had understood that he was excused and that he could not make it back
to Chicago in time for the trial at 9 a.m. Rone reported that Enke was “agitated” during the
conversation. Enke then gave Rone Bushok’s contact information and told her that Bushok would

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explain his absence. Rone spoke to Bushok, who confirmed that he knew Enke was on jury duty but
stated that Covidien now needed him to go to Iowa.
Because Enke had not heard back from the court, he called Judge Conlon’s judicial assistant
shortly after 9 a.m. to check on his status. He was told that he need not do anything, and that Chief
Judge Holderman would be contacting him. Enke then continued on his business trip to Iowa to
assist with the scheduled procedures. Enke made $1,600 for his work in Iowa.
LEGAL ANALYSIS
I.

Importance of the Jury and the Participation of Every Eligible Citizen
It is plain that Enke acted under the assumption that fulfilling his obligation to serve on a

jury was not as important as his business trip for his employer. Sadly, that assumption is all too
widespread among both potential jurors and their employers, presenting a significant challenge to
the ongoing effectiveness of the jury as an institution. The National Center for State Courts has
estimated that, on average, 9% of potential jurors fail to appear in response to jury summonses,
although absenteeism in some jurisdictions is much higher.1 In an extreme case, the clerk of Harris
County, Texas, the third largest county in the nation, recently reported that “only 20 percent of those
summoned for jury service actually respond or report to serve.”2 One 2008 nationwide poll reported
that 32 percent of respondents had ignored a summons for jury duty at some point in their life.3
Those statistics reflect a lamentably dismissive public attitude toward jury service. As one appellate
1

Paula Hannaford-Agor, Jury News: Tales of “Tales” Juries, Ct. Manager, Summer 2008,
at 27, 28.
2

Jennifer Walker Elrod, Is the Jury Still Out?: A Case for the Continued Viability of the
American Jury, 44 Tex. Tech L. Rev. 303, 327 (2012) (citation omitted).
3

John H. Langbein et al., History of the Common Law: The Development of Anglo-American
Legal Institutions 539 (2009).
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judge with extensive trial experience reported:
Unfortunately, jurors often begin their service biased against the experience.
Lawyers are often the first to tell people “how to get out of jury duty.” Indeed,
lawyers cavalierly talk about biased judges and stupid juries, contributing to the
distrust that ordinary citizens have for their legal system. In addition, I have
overheard judicial law clerks, who work in the courts every day, saying that they
“don’t want to bother people” by calling them for jury duty.4
This attitude needs to change, both among attorneys and the public, or the jury system will not
continue as a viable institution of fairness and justice. Merely enforcing 28 U.S.C. § 1866(g) and
mandating jury service on an individual by individual basis is not sufficient; instead, courts must
attempt to educate the public and the legal profession about the importance of the jury and the duty
of every citizen to uphold it.
Much has been said, of course, of the role the jury plays as “the very palladium of free
government”5 and “the principal bulwark of our liberties,”6 or about the jury’s ancient origins in the
democratic government of Athens7 and its enshrinement in Magna Carta,8 that great font of Western
liberty. Much also has been said about “the blood and treasure it has cost to get and keep this

4

Elrod, supra note 2, at 327.

5

The Federalist No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The
sentiment was, of course, that of the Anti-Federalists, although the Federalists agreed that the jury
was “a valuable safeguard to liberty.” Id.; see also Stephan Landsman & James F. Holderman, The
Evolution of the Jury Trial in America, Litigation, Fall 2010, at 32, 34.
6

3 William Blackstone, Commentaries *350.

7

See In re Tiffany Green, No. 96-0222, 1996 WL 660949, at *2 (E.D. Pa. Nov. 15, 1996).

8

Magna Carta art. 39 (Eng. 1215) (Richard L. Bates trans. 1993) (“No free man shall be
taken, imprisoned, deprived of possessions, outlawed, exiled or in any way diminished, nor shall we
go against him or send anyone against him except by means of a legal judgment of his peers or by
means of a law of the land.”).
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birthright of every American,”9 and about the role the jury played in the resistance against English
oppression and as a spark for the American Revolution.10
Perhaps it has been too little emphasized, however, that every potential juror is crucial to the
ability of the jury as an institution to perform its function successfully. A juror in Enke’s position
might think that the business of justice can proceed without him, that other citizens can carry out his
jury responsibilities just as well as he, that his own business interests are more vital than his jury
service, and that he is therefore justified in pursuing his own good rather than contributing to the
common weal.
But the exceptional genius of the jury system is that it collects and harmonizes the
experiences of people from every walk of life, such that the removal of certain citizens from the pool
of potential jurors jeopardizes the integrity of the jury’s proceedings. The jury does not operate in
the realm of cold logic, applying abstract reason to the lifeless maxims of the law. It does not, in
short, perform a task that could be done just as well by one person as another. To the contrary, the
jury makes decisions through its vital collective wisdom, bringing practical judgment accumulated
through diverse experiences to bear on the messy realities of human life. Each perspective is unique,
and so valuable that the systematic exclusion of any one may disrupt the balance that is vital for a
fair and just verdict. As the great evidence scholar Dean John Henry Wigmore explained:
Ask any twelve intelligent friends any question of opinion or fact, calling for serious
thought. . . . Will it ever happen that you do not glean from at least two or three of
the twelve some argument or detail or judgment that the others . . . had failed to
mention?
....

9

Priestly v. Arizona, 171 P. 137, 138 (Az. 1918).

10

See Landsman & Holderman, supra note 5, at 34.
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[T]he conduct of human life has to be based on elusive averages or generalities,
whether in politics, law, medicine, engineering, commerce or ethics. And when it
comes to applying these generalities to concrete cases, the only safe machinery, that
is dependable in the long run, is a machinery that embodies an average judgment,
i.e., the reconciliation of several judgments taken at random.11
All perspectives are vital for that task, so the court must be zealous to ensure the participation of
people from all walks of life. Were the pressing needs of private business sufficient to excuse a
prospective juror from service, the court would be left with a venire of only the unemployed and the
retired. The resulting jury and its deliberations would be correspondingly impoverished to the extent
that the jury would lack the unique insights of those citizens whose obligations preclude them from
serving without inconvenience.12
The custodians of the jury process have recognized for centuries the need to include diverse
perspectives on the jury. When in 1293, King Edward I of England became aware that the sheriffs
of the realm were accepting bribes to excuse the rich from jury duty, he promulgated a statute to end
the practice. 21 Edw. 1 (1293). Remarkably, the king recognized that the absence of the rich from
the proceedings jeopardized the jury’s effectiveness, and that as a result “great expences and trouble
doth daily manifestly ensue, to the impoverishment and utter disheriting of many.” Id. To be sure,
the prejudices of the age restricted the privilege of serving on a jury to landed men, but already there
was a sense that among that group, any systematic exclusion of a category of potential jurors would
jeopardize the jury’s essential function. In our age, now that the right to be a juror extends to all

11

John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. Am. Judicature Soc’y 166,
169-71 (1929).
12

Prospective jurors with immovable and sufficiently weighty obligations can, of course,
request that their jury service be rescheduled. There is no evidence that Enke made such a request
in this case, despite his knowledge that his jury service might conflict with his business trip to Iowa.
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citizens, regardless of race or gender, we should adhere all the more to this ancient principle.
But the exclusion of any type of citizen from jury service is significant for yet another
reason, for it threatens the rationale at the heart of our democratic government. Government by the
people assumes that the public at large is sovereign, and the jury is nothing less than a cross section
of the public at large. That is why those who contend that the average citizen is not qualified to
decide fundamental issues of justice13 are necessarily arguing against the foundation of democratic
government itself. Indeed, the jury is one of the purest embodiments of democracy in the modern
age, in that it involves true deliberation by the people, and not merely the tabulation of votes. If the
decisions of a jury should be given to experts, so too should all questions of government. An
abdication of the right to serve on a jury is nothing less than an abdication of the right to selfgovernment. In the face of such a threat it is vital that all citizens participate on juries, and not sell
their birthright for a mess of pottage.
The words of Blackstone regarding the jury, though written in the eighteenth century, ring
true still:
It is therefore, upon the whole, a duty which every man owes to his country, his
friends, his posterity, and himself, to maintain to the utmost of his power this
valuable constitution in all its rights; to restore it to its ancient dignity, if at all
impaired by the different value of property, or otherwise deviated from its first
institution; to amend it, wherever it is defective; and, above all, to guard with the
most jealous circumspection against the introduction of new and arbitrary methods
of trial, which, under a variety of plausible pretenses, may in time imperceptibly

13

See, e.g., Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev.
443, 459 (1899) (“I confess that in my experience I have not found juries specially inspired for the
discovery of truth. I have not noticed that they could see further into things or form a saner judgment
than a sensible and well trained judge. I have not found them freer from prejudice than an ordinary
judge would be.” ).
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undermine this best preservative of English liberty.14
II.

Analysis of Respondent Enke’s Failure to Appear on March 8, 2012
Under 28 U.S.C. § 1866(g), the burden is on Enke “to show good cause for [his]

noncompliance” with the jury summons and Judge Conlon’s order that he return to court for his jury
service when he failed to appear in court on March 8, 2012.15 Section 1866 deals with court
administration and does not appear in the federal criminal code set out in Title 18 of the United
States Code. Section 1866 is thus not a criminal statute, but it does provide quasi-criminal sanctions
for jurors who fail to meet their burden to show cause for shirking their duty as a citizen to serve on
a jury when called. Indeed, here Enke was not only called, but was actually selected and sworn to
serve on a jury in a criminal case. Given the severity of the potential sanctions Enke faces for his
conduct, the court has held, as it announced at the outset of the show cause hearing, that Enke’s
burden is to show good cause only by a preponderance of the evidence, not by some stricter burden
of proof.
A.

Juror Enke

Enke has failed to meet that burden, because the court finds that there is no plausible reason
for Enke’s belief that he was excused from his jury service responsibilities on March 8. First, the
jury summons he received plainly required his service for two weeks, and gave no indication that
he might be excused earlier. Second, Enke was informed by Judge Conlon on the record during jury
selection that the trial would last “approximately one week.” Even assuming Enke heard comments

14

3 William Blackstone, Commentaries *381.

15

See In re Ahart, No. MC 07-0078, 2007 WL 4626773, at *2 (N.D. Iowa Dec. 31, 2007);
In re Bear, Misc. No. 07-56, 2007 WL 1731098, at *2 (S.D. Tex. June 14, 2007); In re Stencavage,
No 05 MC 00009, 2005 WL 483388, at *1 (D.N.H. Mar. 2, 2005).
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from his fellow jurors or some other source that the trial would last only three to five days, he should
have relied on Judge Conlon’s estimate. Accordingly, Enke should have known that the Chhibber
trial for which he was selected as a juror was likely to last from Thursday, March 1, at least through
the following Thursday, March 8.
Enke was therefore on notice that there was a good chance that he would not be able to make
the trip to Iowa City, 223 miles away from Chicago, on March 8. Nonetheless, Enke never informed
anyone at the court before the evening of March 7 of this scheduling conflict. Moreover, he never
asked another sales representative to cover the Iowa trip, nor did he ever ask Bushok for assistance
in finding coverage, although he could have done so. Instead, reviewing the evidence in Enke’s
favor, the court can only conclude that he indulged in wishful thinking that the Chhibber trial would
be complete before March 8, and that he would be free to travel to Iowa.
That conclusion may help to explain the disagreement between Enke and Rone about their
conversation on the evening of March 7. Based on the court’s evaluation of the courtroom demeanor
and credibility of the witnesses, the court finds it exceedingly implausible that Rone, an experienced
United States district court deputy clerk, would unilaterally tell any juror that he or she was excused
from further service during an ongoing jury trial without the approval of the judge presiding at the
trial. At best, therefore, Enke’s wishful thinking led him to mishear or misinterpret Rone’s
comments. At worst, Enke is lying. In either case, any belief on his part the evening of March 7 that
he had been excused from further jury service in the Chhibber trial was unjustified and does not
constitute good cause for his absence on March 8.
All that is left, therefore, is the urgency of the trip to Iowa. The court has no doubt that Enke
sincerely believed that his presence in Iowa was important to his ongoing professional success. As

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explained above, however, the jury system cannot survive if jurors are allowed to place their own
private business interests above their public service once they are a sworn member of a jury. Enke,
and other jurors in his position, must understand that at that point jury service comes first unless
something beyond their control occurs in their lives and they are excused by the court. Enke’s
business trip, although perhaps urgent in his mind, was not good cause for violating the oath he took
as a juror and intentionally failing to appear for jury service on March 8, 2012.
B.

Bob Bushok and Covidien

Section 1866(g) does not directly impose liability on the employer of an employee who fails
to appear for jury service. The court need not decide today whether an employer may be liable under
§ 1866(g) under a legal theory that the employer induced an employee’s absence from jury service.
In this case, there is no evidence that Covidien or Bushok explicitly induced Enke’s decision to
abandon his responsibilities as a juror in the Chhibber trial.
Nonetheless, Covidien’s behavior in this case is troubling, because Covidien failed to display
the respect necessary from employers to support the American jury system. Covidien’s Jury Duty
Policy states that “[i]t is the policy of Covidien to support employees who are called to serve on jury
duty.” (Covidien Ex. A, at 3.) Covidien woefully failed to live up to that policy here. Bushok’s
conversations with Enke during the week of his jury service indicated that Enke was distressed about
the upcoming conflict between his jury service and the Iowa trip. At no point, however, did his
supervisor Bushok offer to help Enke find someone to replace him at the Iowa proceedings or offer
any assistance to Enke of any kind in support of Enke fulfilling his responsibilities as a juror. The
court suspects that Covidien and Bushok wanted to avoid any risk that the hospital and doctor in
Iowa would be unhappy if Enke did not attend the scheduled procedures. Accordingly, they were

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quietly hoping that the pressure Enke felt would force him to go to Iowa as he did, even if his doing
so meant neglecting his obligations on the jury, and they thus declined to offer Enke assistance.
Companies doing business in America, like individuals in America, may avail themselves
of the right to a trial by jury where constitutionally applicable. Consequently, companies doing
business in America, like individuals in America, must also be willing to help provide the right to
a jury trial to others, even if doing so means relieving an employee like Enke who is serving as a
juror from having to engage in the company’s business endeavors during the time of that employee’s
jury service. Covidien failed to live up to that responsibility here. The court hopes that the time and
expense that Covidien has incurred to attend the show cause hearing will serve as a sufficient
encouragement to other companies to take their responsibility to uphold the American jury system
seriously.
CONCLUSION
For the reasons stated above, the court finds that Respondent Scott C. Enke, a sworn juror
in a criminal trial, has failed to establish good cause for his absence from jury service in that trial
on March 8, 2012. A sentencing hearing is set for June 7, 2012, at 2:00 p.m. Enke and his counsel
are ordered to appear on that date.
ENTER:
_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: May 11, 2012

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