July 2008 Archives
For the next couple of days. I'll see you on Monday.
No, that's not the name of a character in a new Fox series this fall, it's the new fad among some judges: handing down maximum, consecutive sentences. The 8th District's decision last week's in State v. Sutton might slow that impulse.
Whatever kind of day you had yesterday, it was better than the one Jimmy Dimora and Frank Russo had. Here's a simple tip: when FBI and IRS agents show up and your office and your home with U-Hauls and start removing files, it's not a Good Thing.
Summertime, and the blogging is easy... The Washington Gang is off until October, and the Columbus Seven is apparently in cruise mode: the most notable decision out of the Ohio Supreme Court this past week was the granting of a motion to set the execution date for Gregory L. Bryant-Bey, who killed a Toledo man in 1992. Bryant-Bey's date with the gurney is in November, but he doesn't need to cancel his magazine subscriptions just yet; as this article points out, he's going to be joining a federal civil rights lawsuit over Ohio's three-drug method of execution, despite the affirmance of Kentucky's similar procedure by the US Supreme Court this past spring.
At any rate, in keeping with the more leisurely legal pace, I'm going to have a little break, too, taking time off from blogging this Thursday and Friday. On to the courts of appeals, where the work continues unabated...
No ifs, ands, or butts. As trends go, I much -- much -- preferred the miniskirt to the saggy pants look, never having developed an appreciation for male underwear, other than my own. While this would seem to be a matter for the fashion police, the real police are getting involved now, too; as this story tells us, interim Flint Police Chief David Dicks, apparently still operating under his porn name,
announced that his officers would start arresting people wearing saggy pants that expose skivvies, boxer shorts or bare bottoms.
"Some people call it a fad," Dicks told the Free Press this week while patrolling the streets of Flint. "But I believe it's a national nuisance. It is indecent and thus it is indecent exposure, which has been on the books for years."
On June 27, the chief issued a departmental memorandum telling officers: "This immoral self expression goes beyond freedom of expression."
Dicks has even established a three-level violation system, vaguely reminiscent of, and about as well thought-out as, Roe v. Wade's trimester scheme. His motives may involve more than simply ridding the city of an eyesore; as the article notes, he claims that "the style also gives police probable cause to search those wearing no-rise jeans." Not a bad day when a police officer can take out 20% of the Bill of Rights in one fell swoop.
Not-so-unique after all. Much of forensic science, at least as it's often claimed in the courtroom, is based on the idea of uniqueness: no two bullets are alike, no two fingerprints are alike, etc. Scott Henson over at Grits for Breakfast tells us that ain't necessarily so -- the claims cited above have not been scientifically proven -- and points us to an LA Times story which raises some similar questions about DNA, the gold standard of forensic evidence. Back in 2001, an Arizona state crime analyst found two felons in the FBI database which matched on 9 of the 13 locations of chromosomes normally used for identification. According to the FBI, the chances of that happening are 1 in 113 billion. The analyst found dozens more examples. The FBI claims the whole thing is meaningless, but this is a story to follow. You might also want to check out Henson's links to the claims regarding fingerprint and bullet testing.
Bullshit lawsuit of the week. When disbarred New York lawyer James Colliton was accused of sleeping with three underage teenage girls, instead of cutting a rap record, he went on the lam. Visa may be everywhere you want to be, but there's a few stores in Canada that apparently take American Express, too, and that's what Colliton used. Amex turned the information over to cops, and they used that to track him down. He's doing 19 months for the three statutory rapes, and he's just sued Amex for $4 million, claiming they violated their terms of agreement regarding disclosure to third parties by ratting him out.
Bullshit lawsuit of 1884. A hat tip to the Volokh Conspiracy for digging up the fact that in a lawsuit filed 124 years ago in Montreal, some guy named Lebeau sued some guy named Turcot. Seems that Turcot was taking the collection in church, and passed Lebeau by, with the alleged goal of insulting and humiliating him. Lebeau figured that $199 would render him whole. Don't know what the exchange rate was back then...
See you on Monday.
Just like people of our generation remember where they were the day John Kennedy was shot, and of the generation prior to that remembered where they were when Pearl Harbor was bombed, the current generations will no doubt remember where they were on September 11, 2001, and on February 1, 2004.
What's that? February 1, 2004? Yes, that was the date of the infamous Super Bowl XXXVIII halftime show, featuring Janet Jackson and Justin Timberlake, the horrible denouement of which is recounted in vivid detail in the 3rd Circuit's opinion the other day in CBS Corp. v. Federal Communications Comm.:
In one of the last decisions of this past term, the Supreme Court put the kabosh to a state law allowing the death penalty for child rapists in Louisiana v. Kennedy (discussed here). On Monday, Louisiana filed a petition with the Court for reconsideration of the case. Normally, the outcome of this would be as difficult to predict as who'll be on the cover of O, the Oprah Magazine next month. As even the petition acknowledges, the Court "almost never grants petitions for rehearing."
So why bother?
One of the things I've harped upon in the past is the lack of empirical data to guide lawyers in making strategic and tactical trial decisions. If I want to find out what Derek Jeter has hit with men in scoring position and two out over the past three years, it'll take me about twenty seconds. (He hit .345, about twenty points above his regular average.) If I want to find out a breakdown of the 2004 presidential vote in Ohio, by county, it'll take about the same time. If I want to find out how making an objection affects a jury, I'm pretty much out of luck.
Or maybe not. The Ohio Bar Association is doing a seminar on criminal advocacy in Cleveland on August 14, and I got roped into doing the hour on voir dire. One of the things I've always believed is that no area of trial work is more subject to a lawyer's intuition than voir dire; we develop ideas about who makes a good juror and who makes a bad juror based on little more than hunch leavened with experience, as this quote from Clarence Darrow shows:
An Irishman is called into the box for examination. . . You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.
If a Presbyterian enters the jury box. . . let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. Get rid of him with the fewest possible words before he contaminates the others. . . Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket.
Since Darrow wrote that about 70 years ago, there's been a wealth of research into how juries arrive at their decisions. That's how jury consultants can get up to $500,000 a trial. The problem is that most of the information they've acquired is proprietary, and they're not willing to hand it out. Sure, there's a lot of other research that's been done, but unless you want to spend a couple of weeks in the library leafing through back issues of the Journal of Applied Psychology or Law & Human Behavior, you're pretty much out of luck.
Until I stumbled across this site. It's done by a jury consulting company, and there's some good stuff on it, but by far the best is this, a collection of articles on social research of juries. Take the question I posed above, the effect on objections on the jury: if I make an objection, will they think I'm trying to hide something and take it out on my client? Turns out that's not the problem: my objection will just make the jurors place greater emphasis on that evidence, even if the judge rules it's inadmissible. Think that black jurors are more favorably inclined toward black defendant? Not so, if blacks are a minority on the jury, and the evidence against the defendant is strong; in that situation, they'll be harder on the defendant than whites will be.
Some of the stuff isn't earth-shaking; for example, if you need this site to tell you that women who carry condoms are less credible as sexual assault victims, you probably shouldn't be doing trial work to begin with. But most of it is quite informative. It's good to know, for example, before you decide to present character evidence, that it's not going to do you much good, and that if the prosecution questions the witnesses about specific bad acts, it's going to do you considerable harm. And if you're a judge, it's helpful to know that if you give a very brief explanation of why some piece of evidence is inadmissible, the jury's much more likely to disregard it. And if you're doing an appeal from a bench trial where there are some evidentiary issues, and you know the appellate court's going to use the old routine about how judges are expected to disregard inadmissible evidence, you might want to toss in the studies which show that judges aren't any better at that than jurors are.
You might also want to take all this with a grain of salt. I haven't read the underlying studies, and for all I know, they're bogus, or there are contradictory results in other studies. But, as I said, there's not a lot of hard data out there, and anytime you find some it's definitely worth a look.
Other than affirming a death penalty conviction, the Ohio Supreme Court didn't do much this past week. The decision in State v. Hale involved a 2004 killing here in Cleveland, and alleged 22 propositions of law. None broke new ground, and the Court affirmed the conviction and ordered Hale's sentence into... um, execution on November 6th of this year. Now begins the parade of post-conviction relief and habeas corpus petitions, and it's even money that I, at 58, will be dead before Delano Hale is.
Not exactly a typical thought for a Sunday morning, when I usually write this, but my mood is not lightened by the fact that it's Sunday afternoon, not Sunday morning. Apparently, my blog host thought they were AT&T, and decided to have a service interruption for most of the day, forcing me to sit inside on a loverly afternoon and do this. So, before I get even more cheesed off, let's get on to the courts of appeals...
Some final observations on the last Supreme Court term. (Final = for now.)
Diversity. Linda Greenhouse has been the New York Times Supreme Court reporter for the past 30 years. She's an attorney herself, and whenever there was an oral argument or a decision on a major case, her stories on it would be the first I'd read. Her commentaries were invariably incisive, couched in the words of a layman but carrying the insight of a lawyer.
Greenhouse is leaving the Times after 30 years on the beat, and in Sunday's paper she looks back on that time, during which the Court handed down almost 2,700 decisions. What I found most interesting was how moved she was by the appointment of the first woman justice, Sandra Day O'Connor, to the Court in 1981.
The reason I found it interesting is that when I blogged about the Court's decision this term in Snyder v. Louisiana, in which the Court struck down Louisiana's penalty of death for child rape, I read Coker v. Georgia, the 1977 decision in which the Court had ruled unconstitutional the Georgia statute permitting capital punishment for "ordinary" rape. Although the victim in Coker was 16, the courts (both state and Supreme) treated her as an adult. More difficult, from a vantage point thirty years later, was this sentence: "Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person." Somehow, I doubt if that sentence would have appeared in the opinion if O'Connor or another woman had been on the Court.
We tend to ridicule the notion of reserving a spot on the Court for a "black Justice" or a "woman justice" as quota-ism taken to the extreme. But there's a purpose to it. The Court is the most elitist and non-democratic institution in our government, and that needs to be leavened a bit. Whether intended by the Framers of not, the fact remains that the Court has a powerful impact on the lives of the people in this country. Clarence Thomas has certainly not been an ardent advocate of the views of blacks in this country, but only a black could have given the perspective he did when the issue of cross-burning reached the Court. Whatever one's views on abortion, it is certainly arguable that any decision will be more acceptable to the public if it is not made by nine men.
That doesn't mean that the Supreme Court has to look like America, but it shouldn't look like the University Club, either.
A victory for original intent? Reading the opinions in Heller, the Court's decision affirming that the 2nd Amendment created an individual right to bear arms, was not for the squeamish (or for those with limited time), but it was interesting in at least one respect: all the opinions revolved around the question of what the Framers had intended when they drafted the Amendment. And the search for originalist meaning did not stop at Heller; from Giles to the Boumedienne, the justices seemed intent on sifting the entrails of 17th and 18th century British and American legal writings to determine what was the intended scope of the confrontation clause or of habeas corpus.
As this article notes, that's not necessarily a good thing:
Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."
Wow. Lawyers choosing the evidence which supports only their side. Who woulda thunk it?
More on Heller. Many commentators, yours truly included, have suggested that the Court's decision in Heller raises some questions about the validity of some gun laws, like those prohibiting possession by ex-felons, or even, in certain cases, the 1-year firearm specification under Ohio law. Former Solicitor General Ted Olson chimed in with his opinion that "the Court might decide there are some classes of felons that ought to be treated differently from other classes of felons" in an interview in this article. And Prof. Berman points to some other questions, like whether a defendant who's pleading to a felony needs to be advised that he's giving up his constitutional right to have a gun.
It's going to be interesting to see how this develops, and it may develop in ways that a lot of people didn't intend it to.
See you on Monday.
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