So, the ball was in his Court (okay, two paragraphs). He could still do the right thing and grant the motion to dismiss. Or, rather, it was easy until yesterday. That’s when the foreperson of Drew’s jury started getting chatty.

“Trust me, I was so for this woman going away for 20 years,” Valentina Kunasz told Threat Level. “However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us.”

Kunasz said despite all the debate outside the courtroom about the prosecution’s use of an anti-hacking statute to charge Drew for violating a website’s terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website’s terms of service should be prosecuted.

“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable.”

There are more disturbing comments here:

“The last message was a huge piece of evidence,” Kunasz said, “but we had no way of knowing whether it was interstate or not. I honestly think that if they gave us a little more solid, hatred-type e-mails or MySpace messages it would have been a lot easier [to convict her].”

This raises the question (we’ll get back to Judge Wu in a second), how did she end up on the jury? Every comment she makes reeks of her making up her mind before listening to all the evidence. And someone who always reads the TOS? Have you read the TOS for this measly little blog? Someone either messed up in jury selection, or someone lied. [Update: Anne Reed - the inimitable Anne Reed - posted about this very question just as I was writing my post. For a more insightful take on how she may have ended up on the jury and six common mistakes lawyers make, read her post.]

Judge Wu, now, has a problem. Does he publicly reject the jury’s express reasoning and their result? If he was skittish to do it before the verdict, these comments certainly wouldn’t have helped.  Will he have the conviction (hah!) to face up to the inevitable media blitz if the conviction is reversed? Certainly, the law demands it, but the law also demanded that no testimony regarding the suicide be introduced at trial and look what happened.

Or does he take the easy way – again – and leave it up to a court with a pair (several pairs, perhaps)? Not that this is a particularly appealing to a judge. It’s not secret that judges hate (hate) getting reversed on appeal.

So he’s now faced with a difficult choice. Does he uphold the rule of law, or let the law be shaped by the circumstances of one particular case. It isn’t really a mindbender, but he has only himself to blame for the position he’s in.

Maybe he’ll do the right thing. Maybe.

Dan asks:

Judge Wu hasn’t ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not the prosecution, as a matter of law, has failed to prove the requisite mens rea. Why won’t he rule on any of these issues?

There is only one answer: because he doesn’t want to be the one making this obvious decision.

The testimony at trial was pretty clear:

testimony proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.

How, then, can she be convicted of intentionally violating MySpace’s TOS? She can’t. But Judge Wu is not one to do the right thing, given his about turn earlier in the case that has turned the trial into a farce.

The only thing he’s hanging his hat on now is the hope that the jury acquits. Because if they don’t, he will be forced to rule on the motions (maybe as soon as tomorrow, since the jury seems to have reached a verdict on three counts). And if he denies the motion to dismiss, there isn’t a clearer appellate issue – insufficiency of evidence.

This has got to be one of the worst run trials that I have seen or read about in a long, long time. Testimony about the suicide of Megan Meier and her character had no business in that courtroom, yet that’s what dominated the 3-odd days of evidence. If she’s convicted, it will be solely because of the outcome of her allegedly illegal act, which would be an abomination.

There is one person who is charged with overseeing justice in this farce and that is Judge Wu. He needs to “man up” and rule on the motion to dismiss. Waiting for the jury to decide is the easy way out.

Adam Liptak’s latest Sidebar column in the NYT highlights a new study [pdf] conducted by the Chief Supervising Attorney of the Supreme Court of California, Jake Dear, and Edward Jessen, the Reporter of Judicial Decisions in California. The study, published in the UC Davis Law Review, finds that California’s Supreme Court is the most “followed” state court in the country.

Using the Shephard’s signal “followed by”, the study determined that from 1940-2005, state court decisions were “followed” approximately 24, 400 times by courts in other states. California leads the pack with 1260 such decisions. When you narrow the field to decisions followed 3 times and 5 times, California is still number one.

In each category, California beats New York handily, by 160 to 39 for three or more followed cases and by 45 to 6 for five or more. The race has tightened a little, though, in the last 20 years.

Connecticut is in the top half of the list, having its decisions followed at least once 508 times, three or more follows 28 times (putting it 18th on that list) and five or more follows 3 times.

Whoopee.

I understand that Law Reviews have to fill their pages and someone somewhere is curious about almost everything, but does this study actually help? In other words – so what?

In writing an appellate brief (and those that are far more experienced than me, feel free to chime and tell me how wrong I am), you first seek citations from within your own jurisdiction and perhaps include cases on point from other jurisdictions in a string cite. Only when there’s nothing on point in your own state do you need to look to other states (and even then, perhaps you’d look to your federal circuit court first). And even then, you would cite the sister state opinions you want your court to follow, but the number of times that opinion has been followed by other states may or may not be included in your brief. Wouldn’t you instead just cite to the other state decisions? That can easily be found by Shepardizing the opinion you’re relying on.

So I guess what I’m trying to say is that I don’t see the point of this study – other than to say “look at us”. Maybe there is no point other than to satisfy idle curiosity. Is there a point? What am I missing?

Just seems like the equivalent of whipping out the ruler and comparing.

Update: As Scott rightly points out in the comments, why is this even a column worthy of print in the NYT? Isn’t there something else going on in the legal world? Like, I don’t know, Elliot Spitzer’s mess or the absolute quagmire that is Georgia’s indigent defense system? Have we even seen a column from him on that? Or anyone in the NYT?

Also, in hindsight, I think a cleverer title may have been “The long arm of the law”. In fact, I’m going to go change it now.

The problem, now, is that the Attorney General for South Carolina is investigating whether Ray has committed a crime by doing so. The crime? The unauthorized practice of law. Oh yeah. Apparently they’ve got nothing better to do in S. Carolina. I mean, one inmate helping another to challenge his conviction is not to be tolerated, especially if that inmate is doing something that only a select few in this country can do. It’s not like there are a bazillion lawyers in America. Ray reportedly made a whopping $145 for filing that petition (I’m just guessing – 50 hours’ work seems reasonable. He makes 29c an hour). That’s half an hour that a partner at a law firm could have worked. How will he shine his shoes now?

Seriously, this is stupid. The AG should do some real work.

H/T: WSJ Law Blog

Update: Okay, I’m going to jump in. This whole “story” makes me rather upset. To portray her in a bad light because she did the very thing every competent criminal defense attorney should do just exemplifies the lack of understanding of the functioning and the importance of our adversarial system. So what if the victim was 12 years old? If the defense was that she was lying, then you have to go after her. What if she really was lying? What if she was and Hillary went soft on her? Would we be celebrating Hillary for effectively abandoning Constitution? Have we become that blinded by the media glare on sex crimes that we cannot recognize that every charge must be zealously defended or our rights will be eroded?

Lots of people are chiming in, with various views. Take this, for example:

Indeed, if the young victim were lying, one wonders why Hillary agreed to plead her client to “unlawful fondling of a minor under the age of 14, which carried a five-year sentence.”

And yes, I understand that even a child rapist is entitled to present a defense, but there are other ways to present a defense than by trying to destroy a complaining witness, especially where exoneration is not the goal, but conviction on a lesser charge, as in Hillary’s case. All-out destruction of the “opponent” is not often, if ever, required for effective representation. I’ve seen truly competent attorneys who manage to retain their moral integrity while carrying out their legal duty to their clients.

This monday morning quarterbacking is bullshit and offensive. It’s also disingenuous. At trial, the goal is the best possible outcome, be it a not guilty verdict or a guilty verdict on a lesser included. Why is “all-out” destruction of the opponent’s credibility not required? Why are we encouraging half-hearted lawyering? Different people have different styles and there is absolutely nothing wrong with what she did. Let’s see if you have the same feelings when you’re charged with a crime and your lawyer doesn’t ask the unpopular questions.

Tom, have you never gone to trial on a weak case? Have you never offered a plea bargain to a defendant despite knowing that you’d lose at trial? Then why this bs of “one wonders why Hillary agreed to plead her client”. You know damn well why.

It really is disgraceful that someone who fights to uphold the Constitutional rights of an accused individual is vilified in such a manner.

It’s the digital age and more importantly, it is the social networking age. If you don’t have a MySpace or Facebook account, you’re nobody. Especially teens. Everyone has them and then some. So when middle school resource officer John Nohejl in Florida decided to set up a MySpace account so he could communicate with students in ways they do (with the blessing of the school), it seemed like a brilliant idea.

Too bad he didn’t know Julie Amero. Or remember that in the age of Chris Hansen, people are fucking idiots.

In the goofiest waste of law enforcement time we’ve seen in weeks, an on-campus police officer for a Florida middle school is facing a criminal investigation over his MySpace account. Why? It turns out one of the people on his friends list had a link on his or her profile to an internet porn site.

Or, as the St. Peterburg Times puts it, “kids could navigate from Officer John’s page on the social networking site to ‘Amateur Match Free Sex’ in just three clicks.”

You’re reading correctly. Gulf Middle School resource officer John Nohejl didn’t have porn on his MySpace profile, and he didn’t link to porn. But one of the 170-odd people on his friends list, which seems mostly populated by students at his school, had a link to a legal adult site. Now the New Port Richey Police Department and the Florida attorney general’s elite cyber crimes unit are investigating him for making adult content available to underage children.

The AG apparently thinks inadvertently doing something is the same as intentionally doing something:

Cybersafety “is the attorney general’s highest priority,” said Sandy Copes, the attorney general’s spokeswoman. “I am sure the attorney general would be extremely concerned if a member of the trusted law enforcement community was either inadvertently or directly placing students at risk to being exposed to inappropriate content.”

Yep. You’re now responsible for other people. On the interweb.

So all of you reading out there. If I link to say, CollegeHumor, YOU’RE ALL PERVERTS AND PREDATORS AND ARE CORRUPTING TEH MORALS OF A CHILD !1!1one1!11!1!!!

(Seriously, if you’re at work or if kids are around, don’t Google CollegeHumor. You have been warned. It’s not porn, but there’s adult content.)

The kicker? The school’s website itself linked to some clipart websites which linked to g4y pr0n. Thank you, Chris Hansen, for making the world a crazier place.

So the clerk called Bashman and asked him to take it down. He refused. He explains why. Patterico compares the two versions:

First, let’s look at the passage as it reads in the Second Circuit’s amended opinion:

[Plaintiff] Higazy alleges that during the polygraph, [FBI Agent] Templeton told him that he should cooperate . . . .

This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.

Higazy then gave Templeton a series of explanations as to how he obtained the radio.

Here is the full passage, including the redacted information. As you read it, ask yourself why it was submitted under seal:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.” Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Worthy of redaction?

S.Cotus is all over this and wonders why Volokh hasn’t jumped in.

“She consented and she didn’t get paid . . . I thought it was a robbery.”

Now this is particularly curious, given that she ended up having sex with four men [one of whom paid] (a fifth noticed her crying and helped her leave), reportedly at gunpoint.

The judge, it seems, exhibited some contempt for prostitution:

“Did she tell you she had another client before she went to report it?” Deni asked [the writer of the news story] yesterday when [they] met at a coffee shop.

“I thought rape was a terrible trauma.”

A case like this, she said – to [the writer's] astonishment – “minimizes true rape cases and demeans women who are really raped.”

This is the sort of argument that, when proposed in a “brainstorming” session, results in raised eyebrows and a few uncomfortable laughs and perhaps a “nice try, old chum” or two.

Whatever her stance on prostitution, I think the judge might have picked the wrong case to state it.

More here.

After being represented by a public defender who did not call witnesses in Bell’s defense, an all-white jury convicted him

Over time, details of the incidents have emerged, but none of the trial itself. The most fleshed out paragraph about the trial and representation by counsel is this:

Despite this, when Mychal Bell, the first youth to go to trial, refused to take a deal in exchange for testifying against his friends, he was quickly convicted by an all-white jury. Bell’s public defender Blane Williams, visibly angry at Bell and his parents because the youth did not take the deal, called no witnesses and gave no meaningful defense.

So we know that the jury was all white and the defense called no witnesses. What is only now being revealed is that the jury pool was all white. Which included a friend of the victim’s father.

But let us turn to the matter of this attorney. I find it extremely difficult to believe that his attorney would not call any witnesses because he was angry. For one, if there were witnesses whom the defense could have called independently and the attorney made it clear that he wasn’t going to call them, my experience tells me that the defendant would have said something (maybe not, but so little is known at this point…). Surely there’s a transcript out there somewhere.

But a defendant doesn’t always have to call witnesses. The State bears the burden of proof and the defendant can choose to leave the State to its burden. This is a frequent jury instruction and almost always a question during voir dire in a criminal case.

It is counter-intuitive, for sure. You have been accused of doing something, you tell your side of the story. If you have a defense, an alibi, you will present it. Prospective jurors, upon question, usually state that they understand why the defendant can choose not to present a defense. But do they believe it? I think the Jena Six coverage has a hint of that. He didn’t call any witnesses!?! is the incredulous tone.

Now, it’s possible that Bell’s attorney should have called witnesses – I don’t know what the evidence presented was – but it disturbs me a little that people automatically look at it unfavorably. It is a dilution of the burden of proof and we must believe that.

The second thing I wanted to say (I guess as a response to this question by Prof. Berman) is that we should study this case for the racial disparity in the charging process, keeping in mind that this is not a one-off thing. Racial disparities in charging and sentencing are wide spread and are being documented more and more. As this CSM piece points out:

Nationally, black youths are significantly more likely to be tried as adults than are white youths, according to a January report from the National Council on Crime and Delinquency. The same report states that while black youths make up 16 percent of the general adolescent population, they make up 38 percent of the approximately 100,000 youths being held in local and state detention facilities.

The irony, some say, is that mass outpouring of support in cases like the Jena 6 may, in fact, obscure the real issues, where many criminal-defense lawyers can point to examples of prosecutorial zeal when dealing with black defendants.

“The public at large basically thinks that these cases are aberrations, and that’s one reason why so much attention is paid to them,” says Professor Nunn. “It’s the idea that it’s the redneck sheriff doing this and not the way we sort of stack the odds against black criminal defendants. We can point to a few bad apples, say, ‘See, it’s them,’ and the rest of us feel great because we’re demonstrating how we disagree with racism.”

Wow. This post has reached Greenfield-esque proportions, so I’ll stop now.

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.

The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.

Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.

The full report is long and I hope to get through it in the next few days, but for now I’ll rely on CDW’s encapsulation of the main points:

• “Cases with time-barred claims took 47% to 112% more days to finish than cases not time-barred, once other factors were taken into account.”
• “Each capital habeas filing appears to be taking at least twice as long to finish, on average, than prior to AEDPA. The Federal Judicial Center study prior to AEDPA found that the average disposition time for a capital habeas case involving a first petition was 15 months, significantly shorter than the average disposition times that we found in this study. We found averages of 29 months for the disposition of terminated capital cases, 30.4 months for non-transferred first petitions, and 37.3 months so far for all cases including those still pending. It is not known whether AEDPA has had any effect on total processing time for all habeas challenges filed by a given death row inmate. No information about processing time per prisoner (as opposed to per filing) is presently is available for comparison before or after AEDPA.”
• “Neither the presence of an evidentiary hearing or discovery significantly affected either processing time or likelihood of termination, once other factors were taken into account.”
• “Cases with a defaulted claim took longer than cases without such a ruling.”
• “Terminated capital cases in which the court granted the writ on any claim took 54% to 74% more days to complete, a finding consistent with pre-AEDPA findings that it takes a reviewing court longer to disturb than to affirm a capital conviction or sentence.”
• “The presence of an evidentiary hearing in federal court was associated with a 21 to 32 percentage point increase in the likelihood of relief, after controlling for other factors. Also associated with an increased likelihood of relief (9 to 12 percentage points) was an order authorizing a deposition or mental or physical examination.”
• “Of nine categories of claims examined, three were associated with a greater likelihood of relief in capital cases. A claim alleging a violation of Roper, Atkins, or Ring raised the likelihood of relief by about 10 percentage points. The presence of a claim of ineffective counsel at sentencing raised the likelihood of relief by about 8 percentage points. A claim raising new evidence of innocence of guilt raised the likelihood of a grant by 10 to 12 percentage points. In none of the 33 cases receiving relief did the federal court grant the writ based on a claim of factual innocence itself. Instead, the presence of an innocence claim made a grant of relief on a different claim more likely”
• Consistent with pre-AEDPA research, petitioners raising fewer claims were more likely to receive relief. Additional claims increased processing time but not the odds of relief. Lengthier periods for the preparation of the petition did not raise a petitioner’s chances either. Because some of the districts with the longest preparation times also had the fewest cases terminated, these findings may change once pending cases are resolved.
• The study suggests that fewer death row inmates are receiving relief in federal district court after AEDPA. About one in eight or 12.4% of 267 terminated capital cases that filed in 2000, 2001, and 2002 received relief. This is much lower than the 40% grant rate reported by Fagan et al. for the much older capital cases that had already made it through both the federal district and appellate courts by 1995

As Karl correctly points out, the study brings to light important points regarding the effectiveness of certain types of claims. This is very important not only for Federal practitioners, but also those who practice in State court with an eye to subsequent Federal petitions. Stay tuned to CDW for further updates.