To pick or not to pick: learning the unlearnable

While lawyers may debate the effectiveness of jury selection, none will doubt the importance of it. The problem is, no one knows how to do it well. Some may think they do, but really, they’re just getting lucky. For the task is an incomprehensible one: to get 40-60 complete strangers to open up to you about their personal feelings and beliefs, to somehow get a sense of whether they’re in your favor or against all without mentioning the specific facts of the case at hand. As Mark Bennett says in his lecture on jury selection (more on that in a second), what we really want to do, as lawyers, is to take each juror aside and say “Psst, here are the facts. For me or against me?” and obviously we can’t. So we have to dance a dance in which we ask general questions in order to boil this stranger down to some stereotypes and make a best guess. It’s a pretty hopeless practice, made worse in jurisdictions where judges are the only ones asking questions or where there is no individual voir dire.

[To be sure, as currently practiced, jury selection is easier for prosecutors. They're not interested in learning about the person or getting them to open up; they merely want to reinforce the strong desire in people to follow the lead of authority and affirm the bias that most jurors have toward conviction. But, it can be argued, that practice is divergent from the prosecutor's true charge: which is to seek justice, not obtain a conviction. Sure, you can pick a jury by stating a general proposition of law and then asking if the juror can follow the court's instruction, but there's nothing functionally different between that and picking the first 12 jurors that walk in the door, something that I've suggested to prosecutors over the years, but for some reason they never take me seriously.]

Happy Leif Erikson Day (updated with video)

The Original Hipster: in America before it was cool; Christian before it was cool.

Leif Erikson, not to be confused with the unholy spawn of Leif Garrett and Marshall Erikson (yes I know how it’s spelled), is what those of us in know call an “OH”. He’s the guy that scientists and other people with advanced degrees now believe was the first European to set foot in North America, way back in the 1000s. That’s approximately 495 years before Christopher Columbus made his way over, bringing with him all of Europe and its cute little foibles like slavery, disease and genocide.

So, in order to celebrate my Nordic ancestry, this edition of Monday Morning Jumpstart will be in honor of those magnificent Nordic peoples, like Famke Janssen and Audi motor cars.

  • The unbearable cost of the death penalty is making some long-time supporters in CA push for abolition.
  • A fantastically heartwarming article in the NYTimes about the NYPD’s “jumper squad”: officers assigned to talking people off of tall buildings, bridges and ledges.
  • In 1982, Idaho (wouldn’t you know?) abolished the insanity defense. This is not a joke. Now, a murder suspect is mounting a challenge to that abolition and their Supreme Court will decide if the ban is Constitutional.
  • There’s a ballot initiative in New Mexico to make an independent Public Defender Commission and remove it from under the thumb of the Governor and the DOC.
  • The government is arguing – reportedly with a straight face – that the arrest of a white male carrying Arabic flashcards with a Middle East stamp on his passport was supported by probable cause.
  • Matt Brown writes eloquently about the complete disregard for truth in the modern incarnation of the criminal justice system.
  • Prosecutors are trying to shut down a defendant’s website because he’s using it to proclaim his innocence or something. I don’t know. Apparently they don’t have enough work there.
  • Chris Dodd (DODD!) says that PIPA/SOPA are dead. There was no report on whether they were bitten by the virus and might reanimate as zombies.
  • The Juvenile Justice Information Exchange has this intelligent post on Cassidy Goodson, a 14-year charged with murdering her unwanted baby.
  • Scott writes about the most facepalm inducing story of the week: the New Orleans prosecutor who got fired because a joint fell out of his pocket while he was talking to cops which led to his arrest. Prosecutors: they’re just like us; they just hide it better.
  • The embattled East Haven police department will now have dashboard cams outfitted on all their cruisers.
  • Six federal judges win a lawsuit seeking pay raises.
  • Dr. Karen Franklin has this interesting post on false confessions and the taint it causes with corroborative evidence.
  • Meanwhile, this exists (a blog about a Yalie with “Supreme Ambitions”, i.e. to get a SCOTUS clerkship. Excuse me while I go kill myself.)
  • Wait. Someone made an Angry Birds-Star Wars crossover? Faith in humanity restored.
  • Finally, in case you missed it, compare my post on State v. Fourtin with HuffPost and ThinkProgress. One of us has read the actual decision. You guess which one.

Update: You know what? Forget everything I just said and watch this instead:

(via io9 and Part Two here.)

Now go build some ships hexaflexagon and sail forth, but don’t forget the horned helmets.


Image via jpellgen, license details here.

The Three (or Four) Types of Public Defenders

Do you feel lucky, punk?

People on the internet search for very strange things and some of those strange searches end up bringing them here. Most of the time I can figure out what they’re searching for and every now and then I’ll put up a post analyzing those amusing search terms.

But last week, the two following searches brought visitors here and I have no clue what they’re referring to:

  1. The Three Types of Public Defenders
  2. The Four Types of Assigned Counsel

The closest I can come to an answer is: the good type, the bad type and the ugly type. I suppose the fourth could be the empty chair type.

So I turn to you, intrepid and humorous reader. What sort of result would satisfy this query, if it were yours?

Image via kivoton, license details here.

Supreme Court hates disabled people and eats children for lunch. Probably.

[Update 3: See follow-up post here.]

[Update 2: see the end of the post for the TL;DR version.]

That’s the general feeling you’d come away with if you’d read any of the media coverage of State v. Fourtin [PDF], a recent decision in which the court reversed the conviction of Fourtin for allegedly sexually abusing a woman with cerebral palsy1[yes, there's no denying that what Fourtin did is skeevy as hell].

Never one for actually reading the damn opinions in detail, much less understanding what they mean, the press has unequivocally taken to proclaiming [we made ThinkProgress and HuffPo!] that the court has ruled that the victim must prove that she physically resisted to prove lack of consent. Just look at the headlines: “Court Requires Disabled Rape Victim To Prove She Resisted, Calls For Evidence Of ‘Biting, Kicking, Scratching’2” and “Richard Fourtin Case: Connecticut Court Sets Accused Rapist Free, Says Handicapped Victim Did Not Resist”. [Hello, search engine optimization keywords!]

Well, putting aside that whole burden of proof thing being on the State, the short answer is yes and no. The court didn’t rule that victims in general must physically resist in order for there to be lack of consent. This is not some regression back to 1950s misogynist court decisions. To imply this is idiotic and an intentional lie.

But what the court did say is that under the statute that the prosecutor decided to charge Fourtin with violating, yes, if in fact the victim was capable of physically making her lack of consent known, then a person cannot be found guilty. A more accurate headline would be “Court Requires Prosecutor To Prove That Victim Is Physically Unable to Communicate Unwillingness to Consent Because That’s What The Prosecutor Alleged A Man Did’. If you’ve got more than a 2nd grade reading comprehension level, you will already have noticed that that’s not the same as “victim must prove resistance otherwise can be raped”.

So let’s break this down. Here’s the relevant statute that the prosecutor chose to prosecute:

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (3) such other person is physically helpless;

So what does physically helpless mean? Let’s go to another statute!

Juris ‘not a medical’ Doctor

Hello, Sweetie.

I’ve long joked that my favorite pickup line is “I’m a lawyer, but you can call me Doctor” and I’ve semi-seriously tried to get people to call me Dr. Trumpet for years now. My graduate degree, after all, is the Juris Doctor1. While I may play one on Friday nights, I’d sooner seek the services of one than play a doctor in court, during a trial.

Criminal cases surprisingly involve a variety of medical issues: from gunshot wounds to broken noses to neuroscience to sexually transmitted diseases. While it helps to have a more than basic understanding of how many liters of blood the are in the human body or what posterior and anterior lateral thingy muscle mean, no criminal defense lawyer should purport to try a case with material medical evidence without consulting someone who has actual training in the medicinal arts.

Take trichomonas, for example. How many here know what that is? And if you’re told that the complainant in a sex assault case contracted trichomonas, allegedly from your client, wouldn’t it behoove you contact a medical profession to ask just how likely that is?

Four links to dump