CrimProf Blog

Judge Prohibits Blackberry Use by Jurors

There will be no Twittering in the courtroom.

As jury selection in the blockbuster trial of famed philanthropist Brooke Astor's son opened Monday, a Manhattan judge told 200 potential jurors to put away their BlackBerrys.

"I understand there is a temptation to review [news] stories," Supreme Court Justice Kirke Bartley said as he ordered panel members to stay away from their computers. "You are not to conduct research...particularly on the Internet."

"Blogging, BlackBerrys, whatever," are prohibited, he said in the nearly 10-minute lecture.

 "There have been reports from all over about jurors Twittering and blogging," said Ken Warner, a lawyer for Astor's son, Anthony Marshall, who is charged with looting his mother's fortune.

Warner was referring to the popular instant social-networking Web site Twitter. With easy access to the Internet, jurors around the country are increasingly turning to the medium to satisfy their curiosity about a case they are sitting on - and that is resulting in costly mistrials.

Read full article here. [Brooks Holland] 

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]

Defendant Invokes Morning Constitutional to Obtain New Trial Lawyer

A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney's face then threw more at the jury.

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said.

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin's hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself.

"That juror didn't even see it coming," Lawson said.

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident.

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed.

The judge scheduled a status conference for Feb. 9 and raised the defendant's bail from $250,000 to $1 million, finding he is a danger to the community.

Read full article here. [Brooks Holland]

Obama's First Move as President

Even before his adorable dance moves with First Lady Michelle (video here), President Obama's first move came in the criminal law arena-- an order via Defense Secretary Robert Gates to military prosecutors in the Guantanamo war crimes tribunals to request a 120 day stay in all pending cases. The stay will allow the Obama administration a chance to review all the pending cases. His order came just hours after his oath of office. Thus far proceedings are frozen in the case against Canadian Omar Khadr, who was captured at age 15 and is accused of murdering a U.S. soldier with a grenade during a firefight in Afghanistan. A stay was also granted in the death penalty case against five prisoners accused of plotting the 9/11 attacks. More from CNN.com... [Michele Berry]

Actor Lillo Brancato Acquitted of Felony Murder

A slain cop's sister cried junk justice last night after a Bronx jury acquitted actor-turned-junkie Lillo Brancato of murdering Officer Daniel Enchautegui.

"I'm disappointed, I'm disappointed," a shocked Yolanda Rosa said. "What message is this sending out to the New York City police officers today?"

Rosa said she was baffled that Brancato was found guilty only of trying to burglarize his buddy's house - the crime that sparked the confrontation that left her brother dead.

"Oh my God," Rosa said. "I waited three long years for this. ... It's wrong."

Patrolmen's Benevolent Association President Patrick Lynch said Brancato was just as guilty as his accomplice, Steven Armento, who shot Enchautegui at point-blank range.

"This would not have happened if not for this animal's drug habit," said Lynch. "The only good thing is that this skunk is not walking out to spend Christmas with his family. The sad part is that neither is Daniel."

Brancato, 32, faces from 3-1/2 to 15 years in prison when he is sentenced on Jan. 9, and prosecutor Terry Gottlieb said she will ask for the max.

"He's going to jail for a very long time," Gottlieb said.

Don't count on it, countered Brancato's lawyer Joseph Tacopina, who said his client has already spent three years in jail awaiting trial and could walk with time served.

"The worst is behind Mr. Brancato," he said. "He's very relieved."

Read full article here. [Brooks Holland]

4th Circuit Orders New Sentencing for Convicted al-Qaida Member

Yahoo.com: A federal appeals court upheld the conviction Friday of a Virginia man convicted of joining al-Qaida and plotting to assassinate President Bush, but said that he must be resentenced.

The 4th U.S. Circuit Court of Appeals rejected a 30-year prison term and ordered a new sentencing hearing for Ahmed Omar Abu Ali. Prosecutors had argued that the judge improperly deviated from federal sentencing guidelines that called for life in prison.

The ruling is a major victory for prosecutors in one of their most high-profile terrorism cases.

Born in Houston, Abu Ali, 27, grew up in the Washington suburb of Falls Church and was valedictorian of a private Islamic high school. He joined al-Qaida after traveling to Saudi Arabia to attend college in 2002. As a member of a Medina-based al-Qaida cell, Abu Ali discussed numerous potential terrorist attacks, including a plan to assassinate Bush and a plan to establish a sleeper cell in the United States.

Abu Ali challenged his conviction, saying that a videotaped confession he made to Saudi authorities had been obtained through torture and should have been tossed out of court. He also said he had the scars on his back to prove he had been whipped in Saudi custody.

The government strongly denied torture, and said the Saudis treated him well. The appeals court agreed that Abu Ali made a voluntary confession.

U.S. Attorney Chuck Rosenberg said in a statement that "Abu Ali was part of a dangerous al-Qaeda cell that sought to carry out attacks against — and within — the United States, and we are pleased that the appellate court affirmed this important conviction on every count."

The three-judge panel's ruling upholding the conviction was unanimous; the ruling ordering a new sentencing hearing was split 2-1, with judges J. Harvie Wilkinson III and William B. Traxler Jr. voting to remand and Judge Diana Gribbon Motz dissenting.

Trial judge Gerald Bruce Lee had discretion to sentence Abu Ali to anywhere from 20 years to life in prison. The appellate majority said Lee made too much of the fact that Abu Ali's assassination plot never got off the ground, and that Lee improperly compared Abu Ali's case with that of "American Taliban" John Walker Lindh, who was sentenced to 20 years after striking a plea bargain admitting that gave his services to the Taliban in Afghanistan.

The judges cited the case as an example of the federal judiciary's ability to handle terror trials while safeguarding individuals' constitutional rights without jeopardizing national security.

"We are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it," the court wrote.

Continue reading article here. [Brooks Holland]

Emory Law School Indigent Criminal Defense Clinic Won its First Case

After four separate trial settings and two trials, the verdict was read, and the defendant was found not guilty on all six counts. It was a big win for the defendant, and for his three trial lawyers – all Emory Law students participating in the Indigent Criminal Defense Clinic (ICDC). This marked the ICDC’s first trial and first victory.

“A tremendous amount of hard work went into this case,” said Deirdre O’Connor, ICDC Director. “I could not be more proud of the three trial lawyers and the amount of dedication and commitment they demonstrated.”

Dan Zytnick, Nate Barnes and Sarah Pentz were assigned the case because of their participation in the ICDC, which began last fall. The clinic receives cases from DeKalb County and as director, O’Connor selects cases based on the likelihood of a trial or motion work.   

"This was a phenomenal experience for us – having our own client and battling to keep him out of jail," Zytnick said. "The case was demanding and difficult, but we were especially motivated because we strongly believed that our client was innocent. A guilty verdict would have been an injustice."

As part of the clinic, third year students assume the role of lead attorney, second chair and investigator on three different cases. The director provides in-depth daily supervision on each case during the preparation stage, with the goal of allowing greater student attorney autonomy and decision-making when appearing in court on the record. 

“I anticipated that many students would be drawn to the clinic primarily to obtain some litigation experience while in law school,” O’Connor said. “What I hope they take away from their participation is a better understanding and appreciation for the role of a criminal defense lawyer and the unique vulnerabilities of an indigent criminal defendant. I also want the students to realize what is involved in being a zealous advocate and how much the lawyer’s commitment to a client’s case will affect the outcome.”

O’Connor has structured the clinic to promote a team environment. The support and encouragement that Zytnick, Pentz and Barnes received played a vital role in their win. Fellow ICDC students, without hesitation, regularly met with the trial lawyers to go through practice runs and allow them to rehearse their opening and closing remarks.

“The opportunity to represent a client, fully prepare his case and conduct a trial on his behalf was an incredible learning experience,” Zytnick said. “All the difficulties we encountered helped us to be become better prepared and gain experience that we could not have received in the classroom setting.” Rest of Article. . . [Mark Godsey]

Few Trials in Oklahoma

An Oklahoma newspaper reports that of over 12,000 felony and misdemeanor criminal cases filed in the year ending July 1, 2004, only 164 went to trial.  Most of the rest, of course, were disposed of in guilty pleas. [Jack Chin]