They live to write.  So when Chief Justice John Roberts dismissed the Academy in his interview with Bryan Garner, they were cut to the quick.  It wasn’t merely their raison d’être under attack, but big bucks to boot.  A fighter at his core, Gerard Magliocca shot back.

In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.”  Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.

Before sneaking a peak behind the curtain, it’s worth noting that that there is no lesson, none, to be learned by lawprofs in all this.  One might think that they would question why CJ Roberts would say such a hurtful and dismissive thing, or perhaps what they could do to make their pet projects slightly relevant to a purpose beyond self-aggrandizement, lawprof style.  Nope.  Nothing.

Then comes the argument.  Number one, and presumably the strongest is:

First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases.  Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.

Loosely translated, this argument contends that “Lawprofs think that what lawprofs do is useful and therefore it’s wrong for non-lawprofs to think differently.” It’s arguments like this that make me appreciate the decision to go into academia rather than practice law and bear responsibility for a person’s freedom.  So the primary point is, you disagree?  Who cares?  You think you are wonderful, and therefore others should too?  Denied.

Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners.  For instance, I have an article coming out soon on “Reforming the Filibuster.”  That article is not less valuable because it is about the Senate.

Yeah, well, there’s only one problem with this argument.  Neither the executive branch nor congress, and certainly not the administrative agencies, know that you even exist.  They can’t read their own bills, and you think they’re going to read your law review articles? 

Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history.  Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied.  It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless.  It takes time to figure that out.

Unless I misunderstood CJ Robert’s quote, he didn’t say that everything written is stupid or worthless, but of “no use or interest to people who actually practice law.”  So your argument against this is that he’s absolutely correct?  Maybe some lawprof can do some basic research on the definition of persuasion?

Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion.  Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.

This argument reflects a gross misunderstanding of how law works.  We cite whatever supports the outcome we’re working to achieve.  If our research pops out an article of yours, and it says what we want it to say, we cite it.  It’s not because we read it, or because it comports with our deep legal philosophy, but because we are advocates and want to load up support for our side.  Same with judges, who need to bolster their outcomes with citations, which is why we have law clerks.

Now I do not deny that there is plenty of legal scholarship that is esoteric or useless.  That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s.  (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)

Neither CJ Roberts nor practicing lawyers are arguing that lawprofs shouldn’t be allowed to indulge their scholarship fantasies.  We’re saying we don’t care because it doesn’t matter to us.  As long as law schools are happy to charge their students through the nose to pay for lawprofs to spend their days writing articles of no value or interest to anyone involved in the practice of law, knock yourselves out.  It’s got nothing to do with us. 

It seems that law students might be a bit miffed at the idea of paying for your affectations, but that’s between you and your students.  Well, we might stick our nose into that fight from time to time, but that’s only because lawyers tend to be great humanitarians.  We care, you know.

Having dismissed Magliocca’s arguments, consider that some law review articles are extremely important and influential.  Orin Kerr’s articles on cyber crime and the interpretation of the Computer Fraud and Abuse Act have not only had a significant impact on judicial decisions (sometimes to my chagrin), but are instrumental in framing an entirely new area of law that may prove to be at the forefront of crime in the future. 

The point of Chief Judge Roberts’ comment isn’t that scholarly works are inherently worthless and of no interest to the profession, but that most are, as written, useless because they fail to address the subjects and issues that lawyers and judges care about.  Lawprofs can enjoy all the academic freedom they want, but if they want to be relevant to the legal profession, it might behoove them to consider writing about things that matter rather than arguing that they are pleased with themselves and the profession is wrong to ignore them just because they offer nothing useful or interesting. 

Don’t want to be dismissed?  Then write about stuff that matters.  That’s the lesson, and no rationalizations are going to make anybody want to read your “scholarship.”

If we step back, the jury’s acquittal isn’t unreasonable.  The absence of DNA evidence of rape, or even sexual intercourse, was a huge hole in the proof.  That she was so drunk that she couldn’t quite remember much didn’t help either, plus opened the door to all nature of inquiry that wasn’t going to make her sympathetic.

But still, it was wrong.  And it was disgusting.  And the Chief of the New York City Police Department, Ray Kelly, was not going to have these two on his force.

“The guilty verdicts involved violations of the officers’ oaths of office and, as a result, warrant immediate termination.”

The woman had described snippets of a harrowing night in which the officers, called to help her because she was extremely intoxicated, instead abused her. They insisted no rape occurred, with one allowing only that he snuggled with her while she wore nothing but a bra.

And she was stone drunk. And the cops were there to help her home, to protect her and get her home without incident.  Except of their own making.

The jury’s decision also underscores the difficulty of obtaining favorable results for women who say they were sexually assaulted, and who often are subjected to scrutiny and skepticism that keep many of them from speaking out. In this case, defense lawyers pounced on the credibility of the woman because she was very drunk on the night in question and did not remember many details.

As hard as it is to accept, whether by those who contend that any alleged rape becomes inherently sacred or by those whose distrust of cops makes them presumptively guilty, this is how it’s supposed to work.  Guilt must be based on proof, not bias either in favor of the “victim” or against the cops.  Of course, it seems that the system invariably works far better when it’s a cop sitting at the defendants table than any other time.

But just as the rights of all are tested when the worst defendant is in the dock, these same rights must be afforded defendants who are believed to be afforded favor when the rest are not.  We keep arguing that every defendant deserves a fair trial, and a verdict based on evidence beyond a reasonable doubt.  That includes cops too.  We hope it applies across the board.

Had this not been a drunken woman, and had this been a beating instead of sexual encounter of some sort, would Kelly have been so quick to fire the cops?  Would the police department have issued a statement of condemnation, or an excuse for their retention due to their brave and honorable service marred only by a single mistake?

Cops violate their oaths all too frequently, yet that almost never results in such a harsh response by the Chief, nor their summary discharge.  It should.  It should be all that’s required to strip a cop of his gun and shield and toss him into the gutter.  But it’s not.

The difference here is that their conduct, even assuming that no rape occurred, violated the inside rules of chivalry.  It was creepy and disgusting.  Even in the cop world, real men protect womanhood.  Only pervs take advantage of a drunken woman.  It’s not just the aberrant sexual allegations, as Abner Louima can attest, but that these men did it to a non-mutt woman.  That’s where the line is drawn.

While the verdict is unsatisfying, largely because few people believe that these two cops, or at least one of them, didn’t engage in intercourse with this drunken woman, it was a correct verdict.  The proof fell short.  That it would have been sufficient to convict a non-cop isn’t the point and can’t be proven. The fact remains that the evidence wasn’t there and they were acquitted of the rape.

And they were summarily fired from the police force, without the routine official excuses and spin as to why creepy and disgusting cops are entitled to our admiration and respect, and should be given a medal for their conduct.  It may not feel right, but it is. 

And in the end, Ray Kelly did the right thing.  Maybe it will feel good and he’ll do it again next time, even when the cops’ violation of their oath involves a black man and a beating.  We can only hope.

The phrase that comes to mind is “all hat, no cattle.”  It refers to someone who tries to give the appearance of being something, but has nothing behind him, whether that’s guts, skill or, well, cattle.  And it’s not something you want to be called, especially not in Texas. 

Which is what makes it all the more laughable that Texas Senator, Republican Dan Patrick, can be found hiding in a dark corner of the capital, squirming and weeping, pleading to no one to not hurt him.  You see, Patrick wore a big hat, proposing a law to stop the TSA from groping its children and wimmenfolk:

Texas has its own bill in the legislature, HB 1937, which also makes it a sex assault (again, a felony subject to sex-offender registration) “as part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly [to] search[] another person without probable cause to believe the person committed an offense; and [to] touch[] the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.

Ah, Patrick was tough, the man who would face down the federal government and let them know that they’re sick rules and procedures wouldn’t be tolerated in the great Republic of Texas.

But then John E. Murphy the United States Attorney for the Western District of Texas,  shot off a letter, which Mark Bennett succinctly describes:

So a federal government lawyer (whose job it isn’t) threatens vaguely that TSA (which he neither works for nor runs) “would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew” (note Murphy’s explicit false premises: that groping is a) “required under federal regulations”; b) “in order to ensure the safety of the American public”), and the Texas Legislature caves in. They don’t even hold out for a threat from someone with the actual power to make the decisions, much less a concrete threat.

It’s like someone turned the light on and all the roaches scattered.  So tough until someone, even someone without any power to actually do anything, says, “boo!”  And suddenly, it’s revealed that Dan Patrick’s just another guy with a big hat and no cattle. Via Kash Hill :

Republican Dan Patrick, who was the sponsor of the bill in the Senate, withdrew it when he realized he would not have the votes he needed to pass it. “There was a time in this state, there was a time in our history, where we stood up to the federal government and we did not cower to rules and policies that invaded the privacy of Texans,” he said with regret, reports the Texas Tribune. No last stand for Texas this week.

He could have stood firm and squared off with his chicken compadres in the Senate, telling them that the molestation of Texans at their airports was on their heads.  If the bill lost, it lost.  So what? Let someone else play the coward, running scared of some TSA tough guys who want to get too close to children.

But he blinked.  Dan Patrick was all filled with tough talk until the moment Murphy called on him to put up or shut up.  And now he’s hiding in the corner, quivering like jello and covered by his big, empty hat.

So a bunch of pledges at Yale’s Delta Kappa Epsilon Fraternity acted like moronic, five year olds.  They stood in the quad, chanting.

No means yes.
Yes means anal.

I’d like to begin by making clear that Yale University takes very seriously any and all allegations of sexual assault. Not only do we encourage students to report such instances directly to the Yale Police Department, but we have had on campus, since 2006, the Sexual Harassment and Assault Resources & Education (SHARE) center, which provides counseling, information, and advocacy to victims of sexual violence. The list of our efforts could go on, but that is not my purpose in writing today.

It was a trying episode for all involved, but it was also, as your boss President Obama would say, a “teachable moment.” Good speech responded to bad speech; the marketplace of ideas was at work.

Still, some called for punishment of DKE, saying that we should not allow such hateful rhetoric on our campus. More recently, others have pointed to punishment as a means to appease your office, as it would serve to publicly display our commitment to stopping sexual violence as well as gender discrimination.  Though I want nothing more than to shed the notion that Yale is harboring a “hostile” environment in terms of gender, I cannot in good conscience sacrifice our time-tested principles in the name of appeasement.

In a letter to students and faculty members on Tuesday, Mary Miller, dean of Yale College, said the Executive Committee, the college’s disciplinary board, had imposed sanctions on the chapter, which is not an official student organization. The fraternity will no longer be able to communicate with students via the Yale bulletin board or Yale e-mail, and its use of the university name will be severely limited.

The letter said Yale had formally asked the national organization to suspend the chapter for five years.

It’s so much easier to capitulate, even when the nature of the offense is a bunch of dumb words alone.  There was no sexual assault, and indeed, had any of these dweebs touched a young lady against her will in the course of their initiation ritual, then we’ve got an entirely different animal on our hands.  And lest one suspect that stupid words are owned by one gender over another, consider this  letter to the editor of the New York Times:

Hurrah for Yale University’s disciplinary board! In its decision, reported in “Yale Restricts a Fraternity for Five Years” (news article, May 18), the executive board showed guts and heart, as well as compliance with the law, in punishing a fraternity for its sexually offensive chants.

Above all, this is a case where a message needed to be sent about what is tolerated on campus; the old “boys will be boys” canard cannot be and should not be upheld.

I hope that current and future male students can see that the tide has turned, irrevocably.

Let’s applaud Yale’s “guts and heart” for punishing “sexually offensive chants.”  They were sexually offensive.  But they were mere words.  Let future male students fear that if their speech will get them punished>  Let them cower in fear lest something they say offend.  That will teach them to be wary to never do anything that might upset women.  Let men be afraid.

Yale University has produced leaders.  Two of the last three presidents hung out out Skull and Bones, where never is heard a negative word about women.  And the lessons taught at Yale will be the ones carried forward in life, as future Yalies take their rightful place at the helm of the ship of state.  One lesson will be that the fundamental right of free speech comes in a distant second to not hurting women’s feelings.  

Did it not occur to Miller and Levin that women could just as easily have yelled back at the chanting fools that they just killed any chance they ever had of getting a date?  Does it ever occur to those in academia that there is a bigger lesson at stake, that one doesn’t throw away fundamental rights to appease the wounds of the politically correct?

And did it not occur to Miller and Levin that the proper way to deal with dopey infants is to give them a stern talking to and send them to bed without their supper? 

Not too many youngun’s remember the Junior Birdmen.  They were kids who built model planes, and wanted to grow up to be aviators, back when becoming an aviator was the coolest thing ever.  Then came a song, Up in the Air, Junior Birdman, which mocked those who were aviator posers.

Defendants, and more often family members and friends, want to play junior lawyer.  It often stems from two well-intended motives, to either contribute to the cause by helping their lawyer to defend, or to let the lawyer know that they are watching carefully and scrutinizing the quality of the representation. 

To a point, both motives are useful and appropriate.  This is the defendant’s life, and he should be both involved and concerned.  Both defendants and family members should be sufficiently interested to try to help and, probably the more important of the two purpose, keep a close eye on their counsel to make certain that he is providing the representation they require and deserve.

But they don’t get to steer the plane.

The situation differs when the defendant has retained counsel as opposed to assigned.  Having not chosen the latter, there is no particular reason for there to be a relationship of trust between lawyer and client.  One may, and in the best of circumstances, will be created based on the defendant realizing that this unknown quantity has both the chops and desire to serve him well.  Much of the time, the undercurrent of mistrust of the system and lawyers in general makes development of trust extremely difficult, if not impossible.

Ironically, however, it’s with retained counsel that most defendants and family members feel entitled to play junior birdmen.  While they may have chosen a lawyer, thus providing them with the opportunity to select a lawyer in whom then repose trust and respect, there is an undercurrent that they have bought and paid for the lawyer, and hence own him.  They are entitled to direct him.  They paid for the right  to call the shots.

Some lawyers acquiesce to the demands.  The constant communications and questions, about how they should get a better plea offer (the woman on the corner said the guy down her street murdered 12 people and got probation) or argue a specific point (Joe was denied due process because the cops slapped the cuffs on too tight). 

Some lawyers do it to be agreeable, lest they never have another meeting with Mr. Green.  Some do it because they don’t care enough, or lack sufficient self-respect, to manage their clients.  Some do it because they’re tired of the phone calls, emails, meetings and misdirected anger of clients and family members who beat them up because the system sucks.

To what end?  If being a lawyer was easy, then there would be no need for lawyers to exist.  Anybody could step into the breech, argue the cause, try the case and win the day.  Nothing to it, right?

Yet it never seems to work out quite that way.  Over the years, I’ve enjoyed the assistance and oversight of clients and their family members who, as it happened, were either lawyers or attended law school.  Whether they merely wanted to help, or wanted to use their law-fu to make sure I knew they were watching me like a hawk, they sought to insert themselves into the defense. 

These were the junior birdmen.  With a never-ending stream of “help” ranging from hornbook law, the stuff taught to first year law students so they learn the basics, to the wholly irrelevant, with the follow-up demands as to why their help isn’t brilliant and compelling.

If your criminal defense lawyer doesn’t know criminal law better, by magnitudes, than a real estate lawyer or, worse still, the kid who finished his third year, then your issue isn’t with his embracing your help, but with your choice of lawyer.  Assuming that you haven’t chosen poorly, however, then consider what is really happening. You are sucking the most valuable resource the lawyer has out of him: time.

There is no good lawyer who won’t put in whatever time it takes to do everything possible to defend a client.  But that means putting in the hours, the research, the investigation, the writing, the thought, needed to fight.  It does not mean spending time dealing with junior birdmen, explaining why everything isn’t a violation of due process, or why the “fruit of the poisonous tree” doctrine doesn’t preclude admission of drugs in their pocket at the time they were arrested with the gun in their hand.  You think it matters?  That may be, but then why bother to retain a lawyer?  If you have the answers, go for it.

The fact is that you realize you don’t have the answers.  You have Google, which can turn anybody into a junior birdman in minutes.  You may even have a little knowledge, though not sufficient grasp to recall that a little knowledge is dangerous. You likely have great interest, and feel that you should be doing something, anything, to be involved.  You may even feel the need for control in a situation where there is no control to be had.

This isn’t going to help.  Ask yourself whether you have the capacity to help, to contribute to your lawyer’s ability to do the job for which your retained him.  If you’ve put in the thought, the effort, to find the right lawyer for the defense, does he need that sort of help from you?  Do you believe the lawyer you retained to defend lacks the knowledge and skills to do his job?

There are things a lawyer needs of a client and family, and he will no doubt let you know what you can do to help and contribute to the cause.  It’s likely not the sort of stuff that feels particularly fulfilling, but it’s still needed.  Beyond that, however, you are just sucking time and, if pushed hard enough, interest.  It can reach a point where the demands of wasted time are too great, and the time spent dealing with junior birdmen is taken from the time needed to defend. 

It can be hard, almost impossible, to sit on the sideline and watch a lawyer from afar.  We get it.  But it’s all you can do without becoming a detriment to your cause.  We have our roles, lawyer, client, family.  Realize your roll and fulfill it, but no more.  Don’t play junior birdman.

The Washington Post explains it thus:

The video begins with the man in the chair, two officers alongside. A few seconds later, all three have pitched forward and are prone. Still later, the officers are standing while the man remains on the ground, with off-camera voices appearing to express dismay.

Metro issued a statement Sunday saying that the man, whom police have not identified, had resisted arrest, “which resulted in him falling out of his wheelchair.”

How terrible that “all three pitched forward,” with the man “falling out of his wheelchair.”  How unfortunate.

But the video speaks for itself:

Benjamin Arellano Felix is alleged by the government to be a Mexican drug kingpin.  That means he’s somebody the government really wants to convict.  Felix, disinclined to be convicted, retains a lawyer on his behalf named Jan Ronis.  That means the government really wants Jan Ronis off the case.  If he’s the lawyer Felix wants, then he’s the lawyer the government doesn’t want.

From the Los Angeles Times :

Prosecutors allege that lawyer Jan Ronis, who represents Benjamin Arellano Felix, once worked on behalf of a Mexican drug cartel. The judge says the allegations could create the appearance of a conflict of interest.

Federal prosecutors were attempting to get the attorney, Jan Ronis, kicked off the case in part because he allegedly worked on behalf of the Arellano Felix drug cartel to dissuade a witness from cooperating with U.S. law enforcement.

Judge Larry A. Burns said Ronis’ alleged cartel role, while unproven, was sufficient to create an appearance of a conflict of interest, and he also sided with prosecutors who said Ronis’ past representation of a potential witness in the current case posed a conflict.

As it turns out, Judge Burns and Ronis aren’t exactly unknown to each other.

Burns, who has known Ronis for 30 years and tried cases against him when he was a federal prosecutor, described the lawyer as a person of integrity who has always been truthful with him. But Burns said the allegations were an “elephant in the room” that could not be ignored and threatened to turn Ronis’ complicated role into a sideshow that could overwhelm the case.

A person of integrity?  Always truthful?  The government’s “potential” witness claims that Ronis was hired by “a top cartel lieutenant” (are there bottom cartel lieutenants?) who commanded that no one cooperate with the government.  Ronis says he’s crazy.

Ronis, after the hearing, denied the accusations, saying that he had never told the witness that he couldn’t cooperate and had no contact with the cartel lieutenant who allegedly hired him. “There’s no allegation that I ever talked to him or even knew him,” Ronis said.

A person of integrity.  Always truthful.  But the rat says otherwise.

A defendant is entitled to his Sixth Amendment right to counsel, and within that right is the limited right to counsel of choice.  It’s a tricky sort of right, critically important to the success of a defense given the nature of trust required to fight it out with the government, and the defendant’s belief that the lawyer at his side has the chops to fight.  But it’s a fragile right, with much potential for disruption.  And the government likes it that way.

This is a variation on the “house counsel” argument used back in the Gotti days when Bruce Cutler was smeared for doing too good a job for the Gambinos.  Whereas house counsel allegations suggest that the lawyer has become a part of the conspiracy, it stems from his representation of various people who are alleged to be joined together in crime, including those who have fallen to the floor and begged the government to let them feed a bit at its trough.

Actual conflicts of interest are one thing, hard to come by in that they reveal too much.  Potential conflicts are the stuff of prosecutorial dreams.  And when there is a cooperator in the backroom, claims of conflict abound.  As here, it takes only unproven and unprovable allegations to smear a defense lawyer.  The rat said so.  And the judge is suddenly overwhelmed by an excess of caution.

Mind you, this isn’t done in fairness to the government.  The government has no right to command that the defendant have a conflict free lawyer.  Oh no, this is for the benefit of the defendant, who might be too ignorant or unduly trusting to realize how his lawyer’s potential conflict could inure to his detriment.  They are only thinking of the defendant.

So Judge Burns is worried about elephants that could turn the trial into a sideshow and deprive Felix of a fair trial.  There is an easy answer, of course, since the judge gets to play gatekeeper at trial and could preclude the issue entirely and keep the prosecution focused on their case against Felix.  But then, that would leave Ronis free to defend Felix, and that wouldn’t do at all.

The problem that Judge Burns is going to have to confront is that he knows Ronis.  He says he’s a man of integrity.  He says he’s always been truthful to him.  And Ronis says, without equivocation, that the snitch is a wrong and it never happened.  Rat v. Lawyer.  Who will Judge Burns “believe”?

This is where Judges get to show how well they can dance.  Watch him shimmy.  Watch him shake.  Yes, that is the quick step combined with the tango.  Didn’t know it could be done, did you?

Judge Burns will not call Ronis a liar.  But he will, with a sad face, announce that he must employ an excess of caution, if for no other reason than to avoid the appearance of impropriety, and disqualify Ronis as attorney for Felix to fulfill his critical judicial duty of assuring that the defendant receives a fair trial, unencumbered by distractions and conflicts that could undermine the legitimacy of the outcome.  He doesn’t want to do this, but he must.  It is the judge’s responsibility to protect the defendant’s constitutional rights.

And, ta da, the defendant’s counsel of choice is gone, and the Constitution is safe. The government can now call it’s first witness.

Any appellate court decision that begins with a scene from Twelve Angry Men, and Stephen Reinhardt’s opinion from the 9th Circuit in  Williams v. Cavazos does not disappoint.  The crime was somewhat pedestrian, your basic liquor store robbery gone south, leaving the owner dead on the floor.  The defendant, Tara Sheneva Williams sat in the car behind the wheel. 

During deliberations, there was one juror, Number 6, who wouldn’t go along with the program. The others weren’t amused.  Neither was the judge who, after questioning the jury foreman about the evils committed by Number 6 during deliberations, discharged him from the jury for bias.

Rather, the court found that the juror was “biased” for five overlapping reasons: (1) “the fact that he added his own words to the court’s instructions as to what the law is,” which “indicates where his mind is bent towards and that is biased against the prosecution in the matter”; (2) “his repeating of the severity of the charge in conjunction with his bringing up the subject of juror nullification,” which “establishes his state of mind that he’s bent in that regard, that he’s concerned about the severity of the charge, which means the severity of the punishment”; (3) when the judge “asked him what burden of proof he was relying on, he said it was a [sic] very, very convinced beyond a reasonable doubt,” which the judge believed to mean “higher than beyond a reasonable doubt because the charge is murder”; (4) the fact that “[h]e also disagrees with the felony murder rule”; and (5) the fact that “[h]e’s dishonest to me in stating that no juror including himself had discussed the severity of the charge, had not discussed juror nullification.”

[T]he record discloses a “reasonable possibility that the impetus for [Juror No. 6’s] dismissal stems from the juror’s views on the merits of the case.” At least seven jurors expressed the view that Juror No. 6 did not believe that the evidence was sufficient to prove guilt of murder beyond a reasonable doubt, thereby making a total of two-thirds of the panel…. The juror’s views regarding the insufficiency of the evidence were thus made known to the prosecution as the result of a rigorous inquiry into the thought process and reasoning of Juror No. 6. Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons….

Two days after the jurors began deliberations, the jury foreman delivered two notes to the trial court. The first read: 

Relative to jury instruction 17.[41].1, I wish to inform you that we have one juror who: 1) has expressed an intention to disregard the law . . . and 2) has expressed concern relative to the severity of the charge (1st degree murder).

The second asked:

Is it legally permissible for a juror to interpret page 32 of the jury instructions to mean that the conspiracy should involve a plan to commit a specific robbery, rather than a general plan to commit robberies in the future?

The phrasing of these notes isn’t terribly consequential, as jurors aren’t expected to play lawyer and express their concerns in the manner of a lawyer or judge.  And that they give rise to a need for limited inquiry is understandable, particularly where a note suggests that a juror might have misunderstood the meaning of an instruction.  But the court’s response to the notes is what matters.

The first note, stating that the juror was “expressed an intention to disregard the law” requires that an inquiry be made, but that inquiry isn’t into the specific thought processes of the juror.

Accordingly, in deciding whether to discharge a juror mid-deliberation, the critical Sixth Amendment questions are whether, after an appropriately limited inquiry, it can be said that there is no reasonable possibility that the juror’s discharge stems from his views of the merits…

If anything, the court should reiterate its instructions to follow the law as given, and send the jurors back to work.  As to the second note, the court should reiterate the instructions on conspiracy to commit robbery.  And finally, the judge should remind the jurors of their oath to follow the law as given. 

What should not be done is the “rigorous inquiry into the thought process and reasoning of Juror No. 6” in order to ascertain why he doesn’t want to convict the way the court thinks he should.

It’s generally the case that a court, through its ability to rationalize its actions regardless of its true purpose, can screw with pretty much anything it chooses, including justifying its discharge of a recalcitrant juror, or one whose sensibilities goes toward nullification rather than conviction.  Remarkably, the 9th Circuit’s decision cuts through the rhetoric and gets to the bottom line.

Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons….

The whole point of a jury, of twelve angry men if that’s what it turns out to be, is that each individual juror is entitled, actually required, to vote against conviction if he believes, for whatever reasons, that the evidence is insufficient.  That’s part of the instructions as well.  And a juror’s “bent” against conviction is every bit as legitimate a position as the typical juror “bent” the other way.

H/T Eugene Volokh

Bludgeon or scalpel?  From the ironically named Toledo Blade :

Since taking the bench in 2007, Judge [Stacy] Cook has seen hundreds of felony defendants.  Some she sends to prison; for others she orders time on community control.  And still others get probation with a few added requirements — such as a five-page paper on teen violence, or a report on closed-head injuries.

It’s a practice not seen elsewhere in the courthouse.  But in Judge Cook’s fourth-floor courtroom, it’s a method she believes is working.  “From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”

The judge said that ordering papers is more than just busy work.  It’s an attempt to make defendants think of how their crimes affect others — in essence, putting their actions back into their lap.  But even more important, it’s an attempt to change a lifestyle.

Imagine a judge who could easily resort to the routine, sentencing defendants to a term of incarceration for some magical period.  No one would question her.  No one would challenge her.  No one would doubt that she earned her pay.  Even though no one was saved.

Jeff Gamso is rooting for Stacy Cook.

Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth. At any given time, the judge may have a few of the ordered reports mixed in with the daily paperwork scattered about her desk.

As a special condition of community control, and if the essay is related somehow to the offense, the requirement is almost surely legal.  The question is whether it accomplishes anything.

And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.

It’s not easy to figure out whether it works.  Then again, it’s pretty clear that incarceration isn’t doing a bang-up job of preventing recidivism. 

The problem is that tolerance for judges who think about what they do was, well, not always universal.  Gamso points out the old Danny Gears decision,

Another 5-4 decision.  Another scathing Scalia dissent.  The Supreme Court, in  Brown v. Plata, upheld the injunction, that overcrowding in California’s prison system reached the level of cruel and unusual punishment in violation of the 8th Amendment, and ordered it remedied within two years.

Hooray?  Well, yes, better than Scalia’s answer:

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

While the number, 46,000, may be a bit hyperbolic, Nino gets in touch with his activist side in recognizing that, hey, these are criminals. You can’t let criminals out of prison. Are you nuts?

But before we pat ourselves on the back and make toasts to the best legal system on earth, let’s consider some other numbers.

The special court’s decision, issued in 2009, addressed two consolidated class-action suits, one filed in 1990, the other in 2001. In 2006, Arnold Schwarzenegger, then governor, said conditions in the state’s prisons amounted to a state of emergency.

The majority seemed persuaded that the passage of time required the courts to act.

The Supreme Court’s decision derives from two actions, the older of which was commenced in 1990.  If it was a person, it would have come of age to celebrate the win with a stiff bourbon.  Here’s a nice photo, from Justice Kennedy’s majority opinion of how mentally ill inmates were housed awaiting the opening of a bed:

Somebody, some person, was made to live in this cage the size of a telephone booth for lack of anyplace else to put him.  In 1990.  Twenty one years ago.

It’s not as though California was unaware that it had a problem, but having created the problem by grabbing hold of every half-baked idea of imposing mandatory sentencing and three strikes and ever-longer, stiffer, harsher sentences, every politically beneficial tough-on-crime mindless knee-jerk opportunity to throw people in prison, it was stuck with the product of its own invention. 

That some very large number of people, most of whom are indeed criminals, will be unceremoniously freed over the next couple of years, is a scary proposition.  Not nearly as scary as Justices Scalia and Alito suggest, since under a slightly more thoughtful regime, they wouldn’t be in prison to begin with, or at least would have been out already, having completed sentences that a rational system would have thought appropriate.  The justices forget that the California prison system didn’t get overcrowded by accident, or because Californians are just more criminal than the rest of us.

But it took 21 years to reach this point, where a final decision has been made.  And it will still take another two to remedy the problem, assuming it actually happens.  After all, if California somehow fails to reduce its prison population sufficiently to satisfy the injunction, what exactly will be happen?  It’s not like the governor will be held in contempt and made to live in a caged phone booth.

If, as the majority concluded, the overcrowding of California’s prison amounts to cruel and unusual punishment, then those in the system have suffered it for decades.  Decades!  Our legal system is incapable of stopping cruel and usual punishment for decades.

If ever a case demonstrated the impotence of a legal system to right itself, to fix a problem, to address a failure of epic proportions, this is it.  Among our many platitudes designed to rationalize any situation, there is “justice delayed is justice denied.”  Tell all the inmates in the system between 1990 and, well, two years from now, how the system has vindicated their rights. 

To blame crazy politics for creating this situation over decades, layering one tough-on-crime initiative over another until the prisons are bursting at the seams, is easy.  What a bunch of pandering fools, no one looking at the consequences because they will come to pass tomorrow, and the politicians are only interested in getting elected today.  So the bill has finally come due.

We cannot forget that California took 21 years to pay the bill.  We ought to get some interest on this past due debt, but we won’t.  It will be surprising if they pay the bill at all.  And this is the best legal system ever.