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.

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Supreme Court Rejects Peremptory Challenge Claim

The U.S. Supreme Court today decided Rivera v. Illinois, No. 07-9995, unanimously rejecting the defendant's claim that the state trial court's erroneous denial of his peremptory challenge required a new trial. Justice Ginsburg delivered the opinion of the Court, and the introduction to her opinion summarizes the Court's holding:

This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction?

Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

[Brooks Holland]

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

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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].

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.

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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.

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.

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Crim. Prof. Gerard Lynch May be Heading to Second Circuit

The New York Times reported on Tuesday:  "For the United States Court of Appeals for the Second Circuit, based in New York, [Obama administration] officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court."  Judge Lynch currently serves as U.S. District Judge for the S.D.N.Y. and continues to teach criminal law and related courses at Columbia Law School.  If appointed to the Second Circuit, he would join Columbia Law crim. prof. Debra Livingston, appointed by the second President Bush [Mike Mannheimer].

SCOTUS Decides Speedy Trial Clause Case

On Monday, the U.S. Supreme Court decided Vermont v. Brillon.  At issue was whether delays in bringing a defendant to trial that are attributable to his court-appointed lawyers should be counted against the prosecution for purposes of the Speedy Trial Clause of the Sixth Amendment, as incorporated against the States by the Fourteenth Amendment.  By a vote of 7-2, the Court held that such delays generally cannot be charged to the prosecution. [Mike Mannheimer]