I don’t text.  But if this is the wave of the future, I might consider it.  This email arrived this morning:

Need help achieving a goal?  Let [deleted] keep you motivated and accountable. 

[Deleted] turns your mobile phone into your best friend, personal trainer, life coach and more by sending you daily text messages designed to encourage and motivate. Inspired by the movie Cast Away, [Deleted] ensures you’ll never be left alone to tackle life’s difficulties.  Examples of messaging plans offered by [deleted] include:

• Weight Loss
• Work/Life Balance
• Romance
• Quit Smoking
• Sales Motivation
• And More…

I’m already aware that text messaging costs extra on a cellphone, as I have children.  But monetizing that albatross is new to me.  Being a dyed in the wool capitalist, I’m impressed (and simultaneously disgusted] by the imaginative ways people find to try to make money.  This one is right up there with twitter expert.  The idea of paying for someone to nag you about diet, or working too hard (work/life balance is never about working too little), is genius.  And far cheaper than getting married.

No matter how ridiculous this proposal seems to me, somebody out there is likely saying to themselves right now, if only someone I don’t know would send me a text message reminding me to be more romantic, I would find love.  Isn’t love something you would pay for?  And if you call within the next ten minutes, you will also receive the fabulous bassomatic (plus shipping and handling).

Try as I might, I can’t fault the sender of this email for entrepreneurialism.  Hey, any idea to make money beats sitting on a couch eating Cheetos and cursing one’s parents is a good thing.  But what strikes fear in my heart is that he might actually be on to something.  Are there really people out there who are so fundamentally disconnected from real people, from friends and family, that they need to get their motivation via text message?

Granted, people often need some help in achieving their goals.  A timely word, or push, may spell the difference between success and failure in our daily lives.  Yet, seeking that push from a text message suggests that there is no one, absolutely no one, else in your life.  The idea that our love of technology, which allows us to sit physically alone and yet be surrounded by a virtual world of friends we’ve never really met, is leading us to such an isolated existence is shocking to me. 

The advocates continue to push the virtues of digital society, but ignore the dangers.  Where is the human contact that establishes real relationships, the kind where you actually shake a hand or kiss a cheek?  Where is the depth of friendship that exceeds 140 characters on a screen.  I hate to be a wet blanket, but you can’t have children when the closest you come to sex is a porno website.

As a person, the efficacy of this new-fangled money-maker strikes me as another nail in the coffin of humanity.  When the only empathy we see comes in the form of a text message, a twit, a blog post, it’s time to put the computer down and go out to a place where real people congregate.  You know, talk to a person who is actually standing in front of you.  And for crying out loud, change out of your pajamas and comb your hair.

As a capitalist, however, I fully support the idea behind this email.  And if your need isn’t motivational, but rather a bit of humility, I’m here for you with my new side business called “Get Off My Lawn Twits.”  Major credit cards accepted.

The old man, Gideon, at A Public Defender discusses a provocative suggestion to allow jurors, after closing argument, to ask questions.

Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all.

There’s certainly little to argue with here.  Between the disjointed appearance of material evidence, stuck between requisite foundation and irrelevant background, and jury instructions that are designed to appease appellate courts despite their total lack of comprehensibility to anyone else, the expectation that jurors can fulfill their purpose is strained at minimum.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

For those of us who do appeals as well as trials, this captures the rationale for oral argument after our briefs are fully submitted.  Certainly, our arguments are best presented in writing, with case citations and references to the evidence to back it up and lock it down.  Our phraseology and presentation are as tightly controlled as possible, having labored over every word and phrase to capture precisely the right tone and nuance.  We’re not going to get it any better than in a brief.

Yet we argue, taking our finely honed positions and opening ourselves to the judges’ questions designed to shoot holes in our points.  The reason, at least in my view, is clear: No matter how wonderful and bulletproof we think our argument may be, we know that others, judges in this case, may see things differently.  This is our one and only opportunity to hear their misgivings and address them.  They let us know through their questions what they see as problems in our points, and we have one last shot at filling the gaps.

The problem, as Gideon notes, is that gap-filling is a two way street.  Not only would the defense have the opportunity answer questions from the jury, hearing their issues and reframing the argument to meet them.  So would the prosecution.

On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.

Whether the defense can exploit the hole, “widen the gap,” is an unknown, contingent on the facts and the quality of the job done by the prosecution.  If there’s a major screw-up during summation by the other side, there’s no way in the world you want to give them a second shot at the jury, a chance to correct their error.  Different cases and situations will dictate whether this works to one sides advantage, and it’s unlikely that a general rule will ever favor one side or the other.

One problem that presents itself in Gid’s Q&A scenario is the asking of irrelevant, immaterial or “curiosity” type questions that call for background information which would otherwise be inadmissible.  For example, what if a juror asks whether the defendant, who did not testify, was ever convicted of a crime before?  Sure, the judge could “admonish” the juror that it’s an improper question, but once the notion is put out there, leaving it unanswered has a huge potential to taint the jurors imagination.

Still, summations present an inherent challenge in our ability to effectively communicate our message to a diverse group.  As communication is both sending and receiving, it’s often impossible to know whether the message sent was adequately received.  We don’t know, despite all the voir dire gurus, whether a juror is capable of understanding.  Talk too simply and we risk insulting jurors who get it, who feel as if the lawyers are treating them like morons.  Make complex arguments and risk jurors having no idea what you’re talking about.  Do both and bore the crap out of the jury until they stop listening altogether.  It’s a problem.

The idea of allowing jurors to ask questions isn’t novel, and is usually coupled with having the judge vet the questions before passing them along to the lawyers to answer.  That requires a judge to do both a decent job in playing it fairly, by not favoring questions that help either side, and to handle inappropriate questions in a way that doesn’t exacerbate any problems caused by inappropriate ideas floating around the jury room.  On the other hand, even without a Q&A opportunity, jurors may have some peculiar ideas about what they just witnessed, and what they didn’t, in reaching a verdict.

Like most, I want to hear from the jurors after a verdict to better understand what happened.  My experience is that juries rarely decide a case for the reasons anticipated by either side, almost invariably going down a different path than the one urged by prosecution or defense.  Sometimes, their reasoning is so bizarrely irrational as to make a lawyer wonder why we bother with the exercise of a trial at all. 

Through a Q&A, we would have the chance to learn where their thoughts are taking them and address concerns or, if they are veering way off course, try to get them on the path we think best.  It carries significant risks, but the risks apply to both sides under different circumstances.  The one benefit that appears fairly clear is that it might help lawyers to understand where their communications fell short and failed to complete the send/receive cycle. 

Whether this will inure to the benefit of the defense is an open question, but it’s likely to help juries reach better-reasoned verdicts.  And it wouldn’t hurt if we were permitted to argue jury nullification as well.

Just because Carlos Miller’s blog, Photography is not a Crime, is dedicated to the abuses heaped on shutterbugs since our war on terrorists and fast film began doesn’t mean he needs to be overly sensitive.  After all, as was pointed out to him when he saw this TSA poster and jumped to the baseless conclusion that anyone taking pictures of airplanes was likely a terrorist, it might just as well have been a commentary on hoodies. Dark hoodies, to be specific.

Need I even mention the excess glare on the image, thus further obscuring its meaning?  But the poster’s message, that photographers are presumptively the “wrong hands,” raised enough outrage that the Transportation Safety Administration felt constrained to respond.

Did you know that the TSA has a blog?  And that it’s run by Blogger Bob?  Catchy, right?  Just like regular folk trying to be one of the gang.  Apparently it also has a twitter feed which was “abuzz” at this indiscretion, prompting Blogger Bob to get off his Blogger Butt and explain why the TSA has a problem with hoodies photographers.

Some felt this poster didn’t go far enough in distinguishing between general photography and suspicious surveillance activity. These images are simply meant to represent a number of different scenarios that are common in and around [General Aviation] airfields.

What different scenarios would Blogger Bob be addressing?  Perhaps the hoodied image of a guy with a bazooka versus a Pentax?  Perhaps the reason this is a common scenario is because there is nothing illegal, improper, or even inherently suggestive about a photographer taking pictures of a plane.  All those images of planes taking off and landing that we see have to come from somewhere.  Did you think they were all sent over by Al Jazeera?

Worse still, as Blogger Bob explains, not only are photographers overly sensitive, as if getting arrested, having their equipment seized and destroyed and spending some quality jail time was unpleasant, if they were caring Americans, they would be the TSA’s biggest assets.

In fact, many photographers would be prime candidates to use such vigilance programs to report suspicious activity since they’re extremely observant of their surroundings.

So come on, all you selfish photographer types, who care only about yourselves and your “rights”. What about the rest of America, waiting for the next photograph taking terrorist to snap a picture of an airplane so they can pin it up on their cave wall and have something to dream about blowing up.  What about us?  The least you can do is sign on to the TSA’s hypervigilence squad and start snapping every hoodie wearing, camera-toting terrorist around.  So what if he’s just like you.  They all look alike, and better safe than sorry.

Take one for the team.  Don’t do it for me.  Do it for Blogger Bob.

H/T Radley Balko

While checking on who was reading a post written last week, I spotted a significant number of reads coming from  selling “reputation management.”  This is their pitch:

Your Inoculation Campaigns will benefit from years of knowledge and experience, not trial-and-error guesswork. All work is checked for high quality and summarized in easy-to-read Monthly Reports.

Inoculation focuses on suppressing negative listings by surrounding them with positive, authoritative listings.

We will gladly Inoculate one or more keyphrases by creating Micro-Sites, Blogs and various Social Media sites; we can also create and submit Press Releases and Syndicated Articles to our successful networks. We constantly check the progress of our work by analyzing Search Engine Rankings for the keyphrases we are Inoculating and report the progress to you on a continual basis.

Inoculation campaigns is an interesting way to put it.  As if negative information is a disease, a cancer spreading across the internet.   There is no question but that false, malicious information is so easily spread by any nutjob or disgruntled person with a keyboard.  Gruntled people have keyboards too, but tend not to have the zeal of their “dis-ed” counterparts.

The flip side is that there are similar legitimate complaints and criticisms, defining legitimate as truly held beliefs.  They may be no more accurate or realistic than the malicious ones, as there are computer users with strange sensibilities and bizarre expectations of others, or they may be absolutely fair and accurate. 

The point of reputation management is that no matter what the source of negative information, whether legitimate or totally wacky, a niche has developed for those with hours weeks years of knowledge and experience in making it go away.  This points to the immutable characteristic of the internet.  For the good that exists, alongside exists a fabric of lies, artfully created to harm or help.  But absolutely, total, complete lies.

When you look to find out whether to buy an item, say a TV, from one company or another, do you immediately check out the reviews online?  When your kids to their homework, do they rush to the internet to get answers?  Is that where they’re getting medical advice, sex education or political news? 

When I began writing, there was a rigorous threat that if you promoted something stupid or deceitful, someone would call you out on it and, more often than not, rip your head off for it.  You could immediately be revealed as a pariah, moron or liar, knowing that there was always someone who would scrutinize your words for their integrity and accuracy. This kept us honest.

Gone.  Forget the Happysphere gang, a relatively benign group who wants only to be left alone to promote themselves without anyone challenging their self-aggrandizement or ignorance.  They may be a part of the problem, creating and perpetuating ignorance and dishonesty, but they are keeping it within their own borders.  For the most part, they signify nothing, as thoughtful people recognize them as mere vapid noise and ignore them.

Reputation management is entirely different, systematically and aggressively serving the interests of their paying clients.  Their clients may have good reason to try to cleanse their online reputation of false and malicious information, or they may do just the opposite, cleanse the internet of truthful and accurate information about bad people and companies. 

The nagging problem is whether one can function within this morass of lies and deception comfortably.  There are some folks who have adopted the isolationist view, that they can hide their head in the sand, do whatever it is they do within their chosen medium and ignore everything else happening online.  This requires a person to believe that they can sit on the curb and still avoid being soiled by others splashing around in the gutter.  Everybody gets dirty, whether they deserve to or not.

Some people have developed a reputation for honesty, at least within certain parameters.  Their reputation doesn’t mean much to new people who happen to stumble onto a website or blog, not knowing whether they’re good or evil and having little clue whether they are much admired or wholly ignored.  If they want to ascertain the value of information obtained by happenstance, they can always do a search.  But will they come up with critical analysis or reputation management?

Even reputation legitimately developed over time may serve to be misleading.  There are a few blawgers who were once highly regarded, but whose practices aren’t doing very well and have devolved into marketing sluts.  Some are smart, and their self-promotional efforts aren’t as clumsy or flagrant as others, so that readers may not realize that they are being deceived or manipulated. 

Yesterday, I had lunch with the anonymous Editor of Blawg Review, who griped because I don’t have him on my blawg roll.  One of the things we talked about, and which affects him every bit as much as it troubles me, is the waning substance and conversation of the blawgosphere, replaced by the promotional and stupid.  It leaves Ed without blawgers to do a half decent job of blawg review.

BR was once a “peer-reviewed carnival of blawgs.”  Now it’s become extremely difficult to find a blawger, aside from the usual suspects, who has any interest in doing the job other than for self-promotion.  Some of the recent efforts have spanned half-assed to offensively awful.  Good Blawg Reviews (forget great, which only a handful of true masters are able to achieve) have become increasingly rare. 

Whether you’re an aficionado of BR or not isn’t the point.  It is a demonstrable reflection of the vitality and value of online legal content, and the people who create it.  It’s reputation management placed in our own hands.  Do an honest job of it, put in some real effort, and have a say in your reputation.  It gives you the opportunity to shine.  It gives you the opportunity to brand yourself as a lazy, incompetent buffoon.  But it’s entirely in your own hands.

Since starting this endeavor, many of the best blawgs have disappeared. Others post sporadically, insufficient to create the synergies that once thrived. And most of the new ones are crap, self-promotional and appealing at best to simplistic children with wet-ink law degrees and the handful of nutjobs who are fascinated by the law because of their personal failures.  Some argue that there is still vitality in the blawgosphere, though their arguments are rhetorical as they can’t point to much of anything to prove their point. 

It’s not that there aren’t plenty of new blogs.  There are a ton of them. New ones appear every day, slick in appearance with plenty of bells and whistles.  Mostly, it’s a variation on reputation management.  I would ask whether this is the internet you would hope for, but the answer is that it is.  That’s why there is a niche for reputation management, to make sure that people’s carefully crafted internet personas are just the way they want them.

It’s also why the blawgosphere, a place where discussion and synergy once thrived, where people once fought to sign up to do a Blawg Review and then, if they were lucky enough to get a slot, put in a huge amount of effort to produce the best damn BR ever, has become replete with crap. 

I told Ed that I shared this concern, as I’ve got a bit of a vested interest in the blawgosphere, having spent a fairly good amount of time populating it with content, and would hate to see it fade into worthlessness.  So this is my damage control, to implore those inclined to contribute to a real discussion amongst lawyers to fight the tide of deception.  Take a risk with your reputation.  Stand for something. 

This is huge!!!  I just found out and I can’t tell you how excited I am!!!

How by Twittering we just landed $2.5 million+ engagement by NYSE-traded firm!

Coming soon. We’ll post about it any day now–by end of next week, hopefully. Very soon. Yeah, that’s the ticket. For sure.

Why wait for the check to clear.  Heck, why wait for the check to come in!!!  I’m going to run out and order the Bentley.  I wonder what color Bentley Adrian ordered? It would be so embarrassing to get the same color.

[Extra credit if you can name the character in the image, what his “type” was called and the television show in which he appeared.]

December 7th, 1941. “A date which will live in infamy.”

Many of you will immediately recognize December 7th as Pearl Harbor Day, and the characterization as the first line of a speech by Franklin Delano Roosevelt in asking for a Declaration of War against Japan.  How many of you will decide to spend the day thinking about the lives lost?  How many will spend the day in solemn remembrance?  A handful, mostly old men and women who lost a loved one that day.  For the rest of us, we barely give it a thought and certainly don’t let it affect our schedule for the date.  So much for infamy.

By 1945, the United State of America won two wars in two theaters on opposite sides of the oceans.  By 1949, GIs were home and settling into the new homes built for them in places called suburbs, having received a college education from a thankful nation and having babies. They looked forward to the greatest economic boom in the history of the world, sitting comfortably in their living rooms, surrounded by their happy family, looking out their bay window.

September 11th, 2001.  Nine years later and the site remains a hole in the ground while interest groups fight over whose claim of ownership is weepier.  The nation is paralyzed by fear and hatred, characterized by some unknown Koran burning pastor and the wholesale forfeiture of the birthrights of Americans.  Two pseudo-wars drag on, with lives lost because of mistaken allegation and the inability to remember that a dictator had nothing to do with a terrorist.  The billions of dollars wasted on these wars combined with the greed and reckless banking have drained the economy and faith to the point of hopelessness, and soldiers returning have neither jobs, homes nor the prospect of an education.

This is the fourth September 11th since I started Simple Justice.  I’ve told my 9/11 story before.  Last year, I decided that I had enough of 9/11 posts.  This year, I hope that others might similarly recognize how dwelling on this doesn’t reflect any honor on our part, but rather our failure to take the lesson of the experience and use it to move forward.  Our nation is a complete wreck as a result of how this incident has been used to manipulate us, and we are disgraced by our reaction to it.

America was a nation that once knew how to take adversity and use it to strengthen our resolve and improve our lives.  Today, we wallow in it while our “leaders” use it to make us more afraid, more hateful and substantially stupider than we started. 

I’m not inclined to wallow.  When I see a problem, I want to fix it, not bemoan it. 

When someone tries to manipulate me by fear or emotional appeals, I tell them to get lost.  I don’t want to be stupider today than I was yesterday.  I reject it, even though so many around me seem to embrace it, take comfort in being part of a big, stupid group of whining, helpful, ignorant people.

Nine years after 9/11, we are a nation far worse than we were on September 10th of that year.  This isn’t acceptable to me, and standing by, watching it happen, and meekly accepting it as the “way it is,”  no longer cuts it.  No one is “honored” by the relinquishment of freedom, employment, integrity or thoughtfulness.  I’m done wallowing.

Are you with me? 

There’s no voice clearer than that of a retired judge, and former Kings County Supreme Court Justice Amy Herz Juviler’s voice comes across loud and clear in this email obtained and published at Politico.

Friends —
In considering who to vote for in the Democratic Primary, eliminate from your consideration Kathleen Rice. She appeared before me a number of times as an ADA and she was unforgettable. It was her regular duty at the time to try to convict innocent men of misdemeanors who had been accused of felonies in cases where the evidence indicated false accusation. She regularly introduced perjurious statements, unfortunately often of children who had been induced by their Mothers to accuse their Dads in divorce disputes. In one case the original arrest was of a Mother who had beaten her 15 year old. When the Mother said the reason was to induce her to accuse the Mother’s boyfriend of statutory rape, Rice switched the prosecution. The reason the Mother did so,she said, was that hitherto her daughter and she had had a wonderful relationship, but her daughter, now an adolescent,started criticizing her Mother’s dress and make-up. The mother “reasoned” that the only cause was that her daughter was a romantic rival. The date chosen by the Mother was “the only one in which the 2 were alone.” Rice actually made the innocent 60 year old defendant with an unblemished record pay a lawyer to defend him against Rice’s prosecution. She unapologetically tried the case to verdict,even after the Jury could not restrain laughter when the Mother testified.

The worst case of all was when she despicably and deliberately suppressed evidence which supported the Defendant’s theory, undermined the credibility of the emaciated young looking 17 year old complainant and suppressed the fact that in less than a year she had been arrested for 5 felonies, including attempted murder and although she was put on the stand by the ADA, she had 5 warrants for her arrest which Rice did not present her on until after the Defendant, a young hard working man with no record, was convicted. Luckily I found out before he was sentenced and dismissed the case. I should have had Rice disbarred, because even after she had been caught violating the law, she was unapologetic. If you are still unconvinced, give me a call and I can give you more details and a couple of other cases.

A bit more about Rice:  She neglected to vote for 18 years, until 2002, during which time she was a registered Republican until it served her interest to switch and ride Tom Suozzi’s coattails into office when she arrived as a carpetbagger in 2005.  According to her commercials, she wants to expand the power of the AG’s office so she can go after corrupt Albany politicians.  She has strong support from the assistants in her office, who want desperately for her to be elected to any job that will get her out of Nassau County.

My endorsement for New York State Attorney General is Eric Schneiderman, who has been a proven and consistent supporter of smart on crime, the protection of constitutional rights for all and the architect of the deconstruction of the Rockefeller drug law. 

Does the Constitution require a unanimous jury in a state conviction?  That’s the question raised by Eugene Volokh in his post and petition for certiorari in Herrera v. Oregon, where a 10-2 verdict for conviction sufficed. 

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.) 

In Oregon (anywhere else?), a verdict of 9 for conviction is apparently sufficient to convict, whereas it’s a hung jury elsewhere.  Not having tried a case in Oregon, this came as news to me.  Shocking news.  Of a twelve person jury, the fact that one of four jurors found that the evidence failed to prove guilt beyond a reasonable doubt means nothing.  Close enough for government work.  And a conviction.  Next case.

Eugene, in a separate post, provides the historical context for the constitutional requirement for unanimity, even though the 6th Amendment mentions nothing about unanimous verdicts.  In short, it was considered so inherent in the right to a jury that it was ultimately determined to be unnecessary for inclusion.  For those who appreciate the historical derivation of rights, this is a fascinating post and well worth the time to read.

The Supreme Court’s Apodaca decision, upon which the authority of Oregon to convict upon a less than unanimous verdict, is simultaneously fascinating and frightening, and provides enormous insight into just how messy it is to make sausage and law.
As recounted in McDonald v. Chicago (and related in Eugene’s petition), which rejected the Apodaca dual track incorporation concept:

[The Apodaca] ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States.

Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials.

Justice Powell‘s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.

For those who appreciate a bit of irony with their Supreme Court decisions, eight justices agreed with each other on one issue, that the right to a jury applies to the states with the same force as the federal government.  They just split, 4-4, on whether the 6th requires a unanimous jury.  Justice Powell, as the man in the middle, got to call the shot for everyone. 

So the upshot is 8 to 1 on full incorporation, but 5-4 on unanimous verdicts, with the 6th Amendment requiring them but it not being incorporated by the 14th to the states.  Imagine what a funny story to tell your defendant when he’s convicted on a 9-3 vote.  He’ll have a good, long time to appreciate the joke.

Eugene’s argument is that the holding in McDonald, rejecting what it called the “watered down” incorporation of rights via the 14th Amendment to the states is unacceptable, should serve to straighten out the mess made by Apodaca‘s sloppy plurality, creating this anomalous rule to which only one justice subscribed.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

While the number of jurors, the gang of twelve, seems to possess less magic than we give it (Why not 10? Why not 15? Why 12?), that however many jurors we seat must reach a unanimous verdict seems beyond question.  Yet it’s apparently a very real question for some, including Alonso Herrera.  The simpler solution would be for Oregon legislators to put an end to this anomaly by requiring, as a matter of state law, that verdicts be unanimous.  But as they haven’t done so, it’s certainly sound that the Supremes put an end to the bastardized decision of Apodaca and hold that the 6th Amendment be fully incorporated, and that the right to a jury trial includes the right to a unanimous verdict.

Addendum:  Over at A Public Defender, Gideon does a tap dance on unanimity in conjunction with the reaction to the Balgo hung jury and jury “reform”.

While Mike at Crime & Federalism has addressed societal demands that the male of the species assume the passive role if he’s to be accepted, the question remains how we are to rear our boys to reach that goal.  City Attorney for Edmond, Oklahoma, Steve Murdock, think he’s got the answer. From KFOR :

EDMOND, OK — Squabbles on the sidelines are certainly nothing new. But in Edmond it appears the City Attorney’s Office is taking a fight among 10 year olds to a whole new level. An Edmond pre-teen is facing a misdemeanor charge in Edmond Municipal Court for assault and battery. In August after football practice, two 10 year olds got into a scuffle. One of them threw a punch.

A football coach called 911.  Seriously.  Apparently, the criteria for football coaches in Edmond aren’t the same as when I was a kid.  While one might think that some coaches go overboard in pushing kids to the limit and beyond, and I do believe that can be the case, I suspect that someone who takes on the responsibility of coaching football for little kids would be required to see.  That’s hard to do with one’s head stuck up their butt.  Perhaps the coach didn’t feel capable of handling this situation for fear that he might soil his skirt?

Eyewitnesses say the punch was unprovoked.

However, the alleged puncher says he was simply standing up for himself after previous bullying.

The defendant’s dad, Vincent Marcheselli, admits he advised his son to “sock him in the face” in order to stand up for himself.

He says he teaches all three of his sons to stand up to bullies.

This father’s advice to his son is classic Americana.  It’s the same advice I gave my son, with the caveat that I told mine to never start the problem, but if another kid starts it, you finish it.  And he did, with one punch.  It was a little league game, and my son was playing second base.  The kid in center field was a year ahead of him in school and like to bump him in the hallway.

My son felt a stone hit him from behind.  He turned and told the center fielder to quit it.  He felt another stone hit him from behind.  He turned and walked up to the kid and again told him to stop.  Or else.  The kid threw one last stone with my son facing him.  My kid hauled off and knocked him flat on his back.  The center fielder started to cry, even though there’s no crying in baseball.

As it happened, I was standing next to the center fielder’s father when this happened.  He turned to me and said, “that was a good punch,” and then ran off to comfort his son.  And that was the last time the other kid bumped into mine in the hallway.  Lest anyone think I’m sexist, I gave my daughter the same advice.

To their credit, the police in Edmond understood.

“Edmond Police tried to do the right thing and let the parents handle it. But I guess the Edmond City Attorney doesn’t believe that parents in Edmond can take care of their own kids and discipline their own kids.”

Instead, Murdock thought it prudent to charge the fifth grader with a misdemeanor.  You know, so he doesn’t grow up thinking he’s entitled to defend himself from a bully.  In fairness, there’s a question of whether this was the opportune time for a kid who’s been subjected to bullying to throw a punch.  Based on the eyewitness statements, it appears that the “defendant” threw a punch when the bully hadn’t, though there’s no information on whether something was said, or something transpired, between them precipitating the punch.  Maybe the kid was wrong to throw the punch, whether altogether or at that moment.  It’s unclear.

What is clear is the message.  Standing up for oneself will get you prosecuted.  Defending oneself is a crime.  The only acceptable solution to problems is to cry to the “authorities”.  Perhaps Murdock’s father never told him how boys should work out their differences. Perhaps Murdock believes that we need to teach the male of the species to be passive.  The point is clear: the iconic moment in a boy’s life when he stands up to a bully is now criminalized. 

And as for the coach, will he give the most valuable player award to the young man who expresses the deepest empathy?

H/T ABA Journal

One might suspect that the military justice system, being applicable to a far more discrete group than the criminal justice system in general, might be capable of having a more closely shared vision of “justice” than the rest of us.  Eric L. Mayer, in his terrific blawg, Military Underdog, puts that bit of silliness to rest.

As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client.

Eric makes a fascinating observation about the word, “justice”, itself:

As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.

It’s a great word, justice.  It takes the onus, the fear that surrounds a decision to imprison, or worse, another person off our backs.  We didn’t do it to the defendant.  It’s justice.  Invocation of justice is another trick in the prosecutor’s bag.  Everybody loves justice.  Everybody wants justice.  As long as it’s justice, anything goes, and we can all be proud of ourselves for having achieved justice.

This observation stems from an excellent example of how this very common word is invoked without common meaning, a point that I’m told needs constant reinforcement.  A soldier, after completing his vacation from a tour of duty in Iraq, refused to report back for duty.  He was charged with desertion.

Two levels of commanders agreed he should be charged. A military prosecutor drafted the charges, and presumably at least two levels of legal supervisors reviewed the matter for the more junior prosecutor. The charges were signed, read to the young Sergeant, and he was informed that he faced up to a year in prison and a Bad-Conduct Discharge from the Army.

On it’s face, the charges appear fairly simple and straightforward.  Clearly, it passed muster with the soldier’s command, as well as the military lawyers assigned to prosecute him.  With all these eyeballs, all of whom sharing the same understanding of what it means to be a soldier, to serve in Iraq, to not want to go back and to bear the consequences of desertion, certainly there was agreement that his prosecution served the end of justice.

Or maybe not.

There was a problem. Upon returning from Iraq, he discovered that his wife abandoned his two young (below the age of 7) children while she fed her drug habit. For more than 20 hours each day, the children were left alone surrounded by filth. Food and water were obtained through the children’s ingenuity and resourcefulness. They were malnourished and dehydrated. It was sad and disturbing.

The Sergeant did not know what to do. He had very little family, a mother with severe health problems, and few resources. He obtained the kids, moved them into a clean house, and filed for divorce. However, his 14 days of mid-tour leave was almost up. He asked for an extension. The command gave it to him. In the 10 extra days, he talked to friends, distant relatives, and anyone else he knew. None could care for his children, and he certainly would never trust his wife again.

He informed his commander and First Sergeant. They said they were sorry, but duty called. They told him to turn his children over to the state and deploy to his military unit in Iraq. That sounds vaguely interesting, so I’ll repeat it. They told him to turn his children over to the state and deploy to his military unit in Iraq.

Asking a father to turn his children over to the state or face charges of desertion changes things.  The soldier’s military defense lawyer went up the ladder of command and told them of the soldier’s dilemma.  They were appalled.  The charges were withdrawn and the soldier was given an honorable hardship discharge.

Where’s the justice?  The situation was no different when five military minds decided that this soldier’s conduct demanded his prosecution for desertion.  Unlike our system, lawyers in the military are not permanently aligned with one side or another, being assigned to either prosecute or defend as needed, and hence without the typical bias we find in our system.  They are dealing with men and women who share the same training, responsibility and circumstances.  If there is ever a group that should appreciate the circumstances of others, it’s the military.

Yet the perspectives on justice in this case could not have been farther apart.  One group of like-minded people believing that justice demanded prosecution, while another being appalled at the idea that a soldier must give his children away to the state. 

What saddened me was that over 10 soldiers, leaders, and legal professionals (maybe more) reviewed the matter and decided to seek conviction and punishment. . . . Even more frustrating: They all believed they had the best interests of justice and the Army in mind. When told of the Sergeant’s predicament, they rolled their eyes (literally). In their mind, the dirtbag just wanted to avoid the rest of deployment.

That commenters, usually non-lawyers or lawyers who don’t practice criminal law, though unfortunately not always, rant about “justice”, it reflects a lack of grasp of the fundamental reality that there is no such common concept.  One person’s “justice” is another’s outrage.  If the word shares no common meaning within so discrete a group as the military, consider how disparate the understandings are in our larger society, where we rarely agree about anything.

Next time someone cries for justice, they might just get it and find out it’s not the outcome they thought it should be.  Eric Mayer gets it.