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Friday Roundup

Big news from SCOTUS.  Not really.  The Potamac Nine did come down with a decision in a criminal case, Fernandez v. California.  The Highly Abbreviated Version of What Went Down:  the cops arrested Fernandez at his home, and he objected to a search.  An hour later, the cops drove back and got consent to search the home from Fernandez' girlfriend, who was living there.  The Court okayed the search.

There's something to talk about here, and we'll kick that around next week.  But what I found interesting was the last paragraph of Alito's opinion for the 6-3 majority.  It starts out, "Denying someone in [the girlfriend's] position the right to allow the police to enter her home would also show disrespect for her independence." 

Glad to see Alito taking up the pro-feminist cudgel, even it took being able to keep some guy in prison to do it.

Cases that won't wind up on my trial calendar.  Got one yesterday, a felonious assault.  Guy hits his 75-year-old mother in the face with a shovel, then calls the hospital where she's taken and asks the aunt, "Is the bitch dead yet?"

I've always imagined standing up in front of a jury in opening statement, looking at them for a minute or so, then shrugging my shoulders with faint smile and saying, "You know what?  I got nothin'."  I'd like to be able to continue to say that I've only imagined that.

Around the Blawgosphere.  Sentencing Law & Policy has a good article on the mounting evidence that solitary confinement "is an ineffective rehabilitation strategy and leaves lasting psychological damage."  This did not come as a revelation to anybody who ever watched "Cool Hand Luke," but it's good to see Academia climb aboard, however belatedly.

There is probably no human more reviled by defense lawyers than the jailhouse snitch, and A Public Defender has a wonderful recap about research on the topic.  The bad news?  False testimony by jailhouse informants is the cause of about 15% of wrongful convictions.  The worse news?  Jurors recognize that the snitch is getting some benefit from his testimony -- dismissal, a reduced sentence, whatever -- but discount that in evaluating his testimony. 

The article, which links to the full study, is well worth a read, but you come away a bit disheartened, because the worst news of all is that there's nothing you can do about it.  Experts don't work, jury instructions don't work, cross-examination doesn't work.  About the only suggestion made on how to minimize this problem is by using voir dire to determine which jurors are more likely to believe the snitch, and proposes questions like, "In this complicated world of ours the only way we can know what's going on is to rely on leaders or experts who can be trusted" and "My blood boils whenever a person stubbornly refuses to admit he's wrong."  The writer notes that "many judges may not permit questioning of this nature."  Permit?  Hell, if a lawyer up here tried to pull something like that, the judge would drop him out a window.

Big (?) thoughts.  What I found most interesting in that article is one line:  "a meta-analysis of 48 studies examining judicial instructions to ignore inadmissible evidence in juror verdict decisions found that juror verdicts did not vary with the presence of cautionary instructions, deeming such instructions ineffective."  Short version:  telling the jury to ignore something doesn't work.

We've always suspected that; you can't simply tell people to forget something they've seen or heard, and expect that they'll be able to do that.  But it's more.  We know that.  There are innumerable studies which demonstrate that. 

And yet every week you will find at least one appellate decision which proclaims that a jury is presumed to have followed the instructions.  (And spend some time figuring out how you'll ever overcome that presumption.)  Every week, at least one appellate decision will say something that is not only unsupported by logic or common understanding of how the mind works, but is demonstrably false.  "I don't care what proof you have, the sun rotates around the earth."

It's somewhat ironic that a system which exalts evidence would ignore it.

Question answered.  The other day I had a pretrial, and while the prosecutor and I walked back back to check in with the judge, I mentioned that this was the first case I'd had with her.  She said, "Oh, you're the guy with the blog," and then commented, "you don't have any pictures of yourself on there."

"Yeah," I replied without missing a beat, "and now you know why." 



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