March 18, 2009
New Mexico Repeals Death Penalty
As the New York Times reported yesterday, New Mexico became the second State in eighteen months to repeal the death penalty. Thirty-five States now authorize the death penalty while fifteen States and the District of Columbia do not [Mike Mannheimer].
March 17, 2009
New Phenomenon: "Google Mistrials?"
Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.
“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.
Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.
And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.
“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.
Read full article here. [Brooks Holland]
Tamara Lawson on Hate Crimes and Prosecutorial Discretion
Tamara F. Lawson, a professor at St. Thomas University School of Law (Florida), has posted an interesting article draft to SSRN, "'Whites Only Tree,' Hanging Nooses, No Crime? Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America,"slated for publication in the University of Maryland Law Journal of Race, Religion, Gender & Class. Here is the abstract:
News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent of an older and uglier part of American history. A hanging noose is a universal symbol of racist threats of violence. District Attorney Reed Walter's proclamation that this type of conduct was not criminal sent a message of condoning racial intimidation and sparked a wave of copy-cat offenses across the country. This type of prosecutorial indifference toward hate crime negatively frames societal norms of acceptable conduct. Law enforcement's failure to condemn racially motivated criminal also encourages future violence and vigilantism.
This review addresses the prosecutorial veto's negative ripple-effect in hate crime cases. It suggests that unilateral prosecutorial discretion in hate crimes should be limited. Since hate crimes create an enormous impact upon the community as a whole, well-beyond any one individual victim, the community should be given a formal role with regard to charging decisions for hate crimes. This article suggests two ways the legislature can statutorily incorporate community input into the prosecutorial decision-making process: 1) mandating grand jury participation, or 2) authorizing a community enforcement task force for hate crimes. Additionally, this article advocates a third alternative of allowing the use of private prosecutors to pursue hate crime violators when the public prosecutor is unwilling or unable.
March 16, 2009
Heller "Firing Blanks?"
About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.
So far, Heller is firing blanks.
The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.
“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”
Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.
Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.
REad full article here. [Brooks Holland]