Archive for July, 2011
I know it when I see it
Jul 26th
obscene
Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.
Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:
One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or treatment.
Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.
As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition:
The responsibility of choice
Jul 24th
Discretion is such an ugly word. It sounds officious, vague and un-engaging. I prefer to call it choice. Because that’s what prosecutors have: the power to choose whether to prosecute someone or not. It is that power to choose that is a manifestation of the great power that prosecutors wield: the power to deprive someone of their life, their liberty, their reputation.
This inherent ability has been discussed elsewhere lately, in Scott’s post where he gives two examples of poor choices made by prosecutors and in this NPR interview with former state judiciary committee co-chair Mike Lawlor and today, in this piece in the NJ Star Ledger.
The Star-Ledger piece talks about prosecutorial discretion choice in the context of three recent high-profile criminal justice stories: Dominique Strauss-Kahn, Casey Anthony and The Rocket and how all these cases seem to indicate the quest for justice has buckled under the pressure of the 24-hour sensationalist news cycle and the pressure to convict – when that same news media all but assumes that with every accusation comes a conviction – has subverted the true function of the prosecutor. I’ve written plenty about the impact and responsibility of the media in sensationalizing the criminal justice system, so I won’t go there in this post. This post is, I think, about the role of the prosecutor and the power of choice that they possess.
In penning this lament in the Star-Ledger, John Farmer, dean of Rutgers Law School (and a former prosecutor) relies heavily on the words of former Attorney General (and later Supreme Court justice) Robert Jackson uttered at a meeting of prosecutors, some of which I reproduce here:
“The prosecutor,” he reminded them, “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”
…
“With the law books filled with a great assortment of crimes,” the attorney general said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. … It is in this realm … that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group … or being personally obnoxious to or in the way of the prosecutor himself.”
How to write a successful blog post
Jul 21st
try to be punny
Paragraph 1: Pithy comment about incendiary topic, helpful if it involves babies, monkeys, or the unholy amalgam of both: politicians. Throw in a source link if you feel like it, or if you really want to be a dick, wait till Paragraph 3. If you really want to be successful, don’t bother with a link at all. You readers don’t need it, they’ve got you.
Paragraph 2: Mocking baiting of those that support whatever idiotic idea it is that you’re writing about. If you can find a way to work in “that’s not even wrong”, it guarantees 5 extra comments.
Paragraph 3: Massive blockquote to eat up space and make the post look longer than it is.
Paragraph 4: Restate whatever you said in Paragraph 1 and 2, but this time in reference to the blockquote. Snark factor must go up by 100. Include phrases like “I’m worried about the State of the country” or “lamestream media” or “I’m moving to Canada”.
Paragraph 5: Invoke Godwin’s law.
Paragraph 6: Another blockquote, but this time don’t even bother with commentary. It’s obvious.
Paragraph 7: ???
Paragraph 8: Conclude with yet another pithy, sarcastic statement, belittling those that see things differently. Success guaranteed if you end with “bunch of idiots”. Don’t solicit comments. Reverse psychology works like a charm.
Add mildly on-topic video/music that shows how smart you are and how stupid everyone else is because you made the connection and they would’ve never thought of it.
QED. You’ll thank me later, you bunch of idiots.
Public defenders vs. assigned counsel vs. private attys: Round I lost count
Jul 21st
As I sit here in the dark, lamenting the death (and dearth) of blogging public defenders, I’ll leave you to read this latest study that seeks to compare the effectiveness of public defenders, assigned counsel and private attorneys. This isn’t the first study that’s been done, nor should it be the last, but the results aren’t Earth-shattering by any means.
The study, published by a statistician at the U.S. Bureau of Justice Statistics, focuses on:
What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing.
By way of preliminary information, the public defenders are full-time attorneys employed by a governmental organization who exclusively represented indigent defendants, while assigned counsel are private attorneys appointed on an as-needed basis by the courts. You know who private attorneys are.
The findings of the study really aren’t surprising at all. There’s almost no difference to speak of between the three, except that private attorneys’ clients are more likely to get some form of probation and assigned counsel clients are more likely to end up incarcerated.
Aaron Swartz is the new Lori Drew: The TOS misadventures
Jul 19th
If the Federal government were on Twitter or Facebook (or even that shiny new toy Google+), they’d be the confused old grandfather who’s elated that he’s won the Australian lottery even though his clearly smarter – and younger – wife quizzically asks him if he’s every been to Australia.
The Feds continued their misadventures in Terms of Service land with an indictment handed down today against Aaron Swartz, disputed co-founder of Reddit, the less well known bastard child of Digg.
His crime – described by his acts, not the silly US Code that they’re charging him with (PDF) – is essentially downloading staggering amounts of documents from JSTOR, the online repository of the ivory tower’s pontifications and musings on the life of the bourgeoisie. Seriously. Have you ever tried download anything from JSTOR? Apart from being so damn counter-intuitive, that shit is expensive. So expensive that some universities are charged $50,000 a year for access to the hallowed writings scanned and uploaded to JSTOR.
Swartz, someone whom the Feds have had their eye on for a while, basically used spoofed MAC addresses, guest accounts and the like to get behind their paywall and just download all their files. What was he going to do with it? Who the hell knows. But he did it because he hates paywalls and believes in freedom of information and free dissemination of that information. Or something. Watch out, NYT, you’re next.
Can you imagine if she’d been convicted?
Jul 19th
We all know by now that Casey Anthony was acquitted by a jury that understood the meaning of the burden of proof and held the prosecution to that burden. It seems like, of all the parties in that courtroom, they’re the only ones who truly understood and followed their role and responsibilities. The shenanigans on Jose Baez the defense attorney are well known – but whatever they may be, he convinced the jury to deliver what is looking more and more like the correct verdict.
I wonder about the prosecution, though. The prosecution that has the Constitutional obligation under Brady v. Maryland to disclose potentially exculpatory information, that – being lawyers – has the ethical obligation of candor to the tribunal and to immediately correct erroneous information presented to the court or the jury.
I haven’t paid much – if any – attention to the facts of the case. A girl went missing, the mom partied and didn’t report it, a body was found(?) but the cause of death couldn’t be pinpointed, Nancy Grace said she was guilty and Casey googled “chloroform” 84 times.
Wait, you mean she didn’t? Oh:
Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.
The designer [of the software that the police used to validate their conclusion], John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.
The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.
…
Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.
And we all know that the prosecution and the police did nothing. The state’s already weak and nebulous case was actually weaker. And yet onward they pushed, to try and get the death penalty against a woman they “knew” in their hearts was guilty, just didn’t have that pesky “evidence” to back up. I can understand that if this information had come up pre-trial, the prosecution could’ve wiggled out of disclosing it by using the well-worn trope that in their opinion it wasn’t potentially exculpatory, but to let the court and jury continue under the false impression that evidence before it was accurate when it wasn’t is a serious violation of their ethical obligations. (See here for a prior post on the prosecutors’ obligations to pursue a prosecution they know they can’t prove).
Nothing will happen to the prosecutors, obviously, other than a few people shaking their heads and tut-tut-ing. It’s a good thing she was acquitted. Imagine if this came to light after a conviction?
For your eyes only: prosecutors really can’t look at privileged documents
Jul 17th
From the “Well, it’s good to know that at least some things are still sacred” files comes this very recent decision of the CT Supreme Court in State v. Lenarz, which held that yes, prosecutors really aren’t allowed to look at confidential communications between lawyers and defendants and then use that knowledge against the defendant at trial.
Just how egregious was this violation of the attorney-client privilege? Judge for yourself:
During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department. Defense counsel immediately requested a meeting with Judge Scheinblum in chambers, at which he advised the judge that the prosecutor had read materials that were subject to the attorney-client privilege.
This was after the judge had already entered orders that confidential materials on the computer were to “remain unpublished and unread”. But that’s not the end of this:
The state admitted that the prosecutor had read all of the materials and did not dispute that the documents contained trial strategy, but claimed that, because the prosecutor had not conducted any additional investigation and had not interviewed any additional witnesses as a result of reading the materials, the defendant had suffered no prejudice. In addition, the state claimed that the prosecutor had not wilfully violated the attorney-client privilege, but had obtained the privileged materials in good faith.
What were these documents, you ask, and just how is a prosecutor to know they’re privileged? I mean, it’s not like the documents said “TRIAL STRATEGY” or “Confidential” on th- :
An ode to the Kitchens sink: a tragicomedy
Jul 17th
Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought
it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved
And so the court issued
its seminal holding
in the case of
State v. Monica Golding
The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed
In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl
And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent
And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective
Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”
If you do not object
or even stand silently by
as erroneous instructions
the jury must apply
If you do not state
with exacting precision
the specific problems
with the court’s instruction
The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might
The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed
You must be prescient
You must be attentive
because the Court has become
anal retentive
And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?
Ask for copies
and then ask for time
and if you forget
just remember this rhyme
One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.
And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:
The C__stit___io_ State
Jul 15th
The judicial branch today announced its list of proposed cuts to services to make the monetary savings required by the Governor’s new budget proposal. As feared, lots of people are going to be laid off, courthouses will close and services will be drastically compromised. You can read the full list of cuts here [PDF] and here‘s a Capitol Watch post on the proposed cuts. I’ve listed the most significant (to me) proposed changes below, but first, a quote from the Chief Justice’s press release [PDF] today:
Our state Constitution in Article I, Section 10 states: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
…
With these cuts, however, I am not certain that we can adequately meet the requirements of Article I, Section 10. Access will be limited and we also anticipate that the resolution of civil, family, housing and small claims cases will be delayed. The end result is that our ability to administer justice as required by the Constitution may very well be compromised.
Now, onto those cuts. First, four criminal courts will either physically or functionally close:
- Enfield (GA13) will shut down the entire building and transfer criminal cases to Manchester (GA12) and Hartford (GA14).
- Derby (GA5) will move its criminal and motor-vehicle matters to the Milford (GA22/JD) court.
- Bristol (GA17) will move its criminal and motor-vehicle matters to New Britain (GA15).
- Norwalk (GA20) will move its criminal and motor-vehicle matters to the Stamford Judicial District court.
In addition, juvenile court operations in several courts will also close/move: Danbury (moved to Waterbury/Stamford), Rockville (moved to Willimantic/Hartford) and Torrington (moved to Waterbury).
119 Temporary Assistant Clerks (affectionately called “tacks”) will lose their jobs. I believe that’s a large majority, if not, all of them. These are, most often, the clerks you see sitting in courtrooms, taking notes, marking exhibits and doing clerk-y things.
But there’s more dire stuff: the only three operational drug courts in CT: New Haven, Bridgeport and Danielson will close. Drugs courts were introduced as a very useful and effective way to combat the high incidence of minor drug-related offenses. If you ask about its success, YMMV, but undoubtedly it was an attempt to recognize that drug offenders need help and treatment, not incarceration.
The cuts also mean that some important services like “Building Bridges” which helps provide housing for homeless people who can no longer stay in shelters, is completely eliminated.
Finally, in more devastating news for the state’s poor and needy, the amount the Judicial Branch provides to Legal Aid organizations in the State will be reduced by 33%: from $1.5 million to $1million. For those organizations who are constantly struggling to find funding, $500,000 is a lot of money and sadly this only ensures that their ability to provide needed services just got more challenging.
It’s already pretty clear from this brief summary that it will be the poor, underprivileged and needy who will most feel the effects of these cuts and closings. But that’s not the end of it. The public defender’s office also has to reduce its budget by some $4.7 million dollars, which only means layoffs, increased caseloads and – unfortunately – an adverse impact on the ability to effectively represent – yet again – the underprivileged and poor among us. I have no actual details about the public defender cuts, nor would I be stupid enough to actually say anything about that even if I did, so instead I’ll just point you to this piece in the New Britain Herald, which has some information.
Wherever you stand on the political spectrum, it’s a sad day in CT for not only the thousands of employees who stand to lose their livelihoods and who knows what else as a consequence, but also those who rely on the State for the support that they are unable to provide themselves. One can only hope that there’s a way to avoid all of this becoming reality.
What do we want from our system?
Jul 10th
see end of post for info on this picture
I feel compelled to start, once again, with one of my favorite quotes:
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.
The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.
Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?
Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?
we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.
Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:
“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead. He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”
Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.
“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.
“No truer statement has ever been spoken,” Fuger wrote.
Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.
It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”
“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.
The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:
In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…
Emphasis added by me to point out the subtle use of words to support their conclusion.
So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:
First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.
Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.
Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.
It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:
A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.
Now, she’s in hiding.
Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.
Why? He says she fears half of her co-workers want her head on a platter.
The other may understand what she did, but she didn’t want to face them.
She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.
She retired over the phone.
The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.
One day they’ll come for you and there’ll be no one left to speak up for you.
What do we want from our system? A rubber stamp, apparently.
[For an interesting local connection to the image above, see here.]
Do video lineups lead to accurate eyewitness ID?
Jul 10th
That’s what researchers from Royal Holloway University of London Eyewitness Group seem to be suggesting, as per this BBC news story. I haven’t been able to find the actual research paper or its conclusions, but presumably its in the offing. It will be interesting to read and see what the basis for this conclusion is. The current statistics, as per the report, seem pretty dire: only 4 out of 10 witnesses make accurate identifications. For more on eyewitness ID posts on this blog, click here. If you fancy yourself a pretty astute observer, try Gary Wells’ Eyewitness ID test.
Sunday Stupidity: anachronistic edition
Jul 10th
Founding Fathers FTW:
We hold the image credit to be self-evident
We the jury…have some questions
Jul 9th
The efficacy of the jury system has provided much fodder for thought here at ‘a public defender’, starting way back in 2008 when Florida proposed giving jurors the right to submit questions to be asked of witnesses, and most recently last year, in a series of posts about the need for unanimity and general ways to improve the jury system (through Q&A during closing arguments or better jury instructions).
I started out with the firm view that any active participation by jurors during a criminal trial was antithetical to the idea of the burden of proof resting squarely on the State. I have softened my stance a bit, as can be seen in the Q&A post, and now I am definitely intrigued by the prospect of a limited trial run wherein jurors can ask questions of the lawyers (but I’m still very hesitant to let jurors pose questions to witnesses).
Michigan has recently introduced some interesting changes to their rules, which have got me even more interested in this idea:
Michigan jurors will be able to pose questions to witnesses; take notes; get mid-trial commentaries from lawyers; in civil cases, discuss the evidence while the case is still in progress, and get a final summation from the judge, according to the 14-page order hammered out after a two-year test period.
Once again with the “pose questions to witnesses”. But let’s skip that for now. The “mid-trial commentaries” seem like an interesting prospect, but have a fatal flaw, especially in a criminal case. No defense attorney would avail of this. Either this “mid-trial commentary” comes before the State has rested, in which case why would a defense attorney comment on the strength of the State’s case up to that point, giving the State ideas about what witnesses they need to call, or if it’s done after the State’s case, there’s little difference between this “mid-trial commentary” and closing argument.
I suppose there might be very rare and specific cases in which the defense could utilize this commentary to set up their case-in-chief, but the risk seems far greater than the reward.
Some of the objections to the other proposals are self-evident: an impartial final summation of the facts from the judge? Talk about an appellate issue nicely wrapped in a bowtie. And frankly, jurors should always have the ability to take notes and should always receive the judge’s final instructions in writing.
I’ve never quite understood the prohibition against jurors discussing the case while evidence is still being presented. What does it prevent, exactly? Do we really believe that if they don’t talk to one another they won’t make up their minds until all the evidence has been presented? That’s naive. In fact, discussing the evidence during the presentation of the evidence may help some jurors better understand the evidence that is subsequently presented: some may have missed a key piece of evidence and thus lose context for a following witnesses testimony. It doesn’t bother me as much.
But this reiteration of the need for some sort of change in the jury system has reinforced the notion in my head that a limited period of dialogue between the jurors and the lawyers after the presentation of all evidence might greatly assist the jury in their decision-making. One of the judges who’s quoted in that Michigan article is right: jurors aren’t children. But as I’ve argued before, the best way to approach them is that they are, and what better way to do that then to let them ask you questions about your case, so you can clearly address their issues with the evidence – or lack thereof? What are the downsides to this? [See this article by Walter Olson in a 2003 issue of Reason for further thought.]
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