Saturday, December 16, 2006

Inside the jury room

Yesterday, Constant Partial Attention (which actually sounds like what most attorneys jurors of paying to the case) wrote a lengthy and informative piece about her experience serving on a jury in a drug case.

As you're walking into the jury deliberation room a man is already volunteering to be the foreman. You know nothing about him but would rather not be the foreman yourself so when he asks if anyone has any objections, you say no. And so he proceeds to be a crazy, raving lunatic who keeps using the phrase "skimpy police work," doesn't seem to have any actual point beyond that and will listen to no one but himself. The only other person in the room who doesn't think the foreman is crazy is a mild mannered lady who is not very bright. You know she is not very bright because even though it has been stated about four thousand times that the picture that was admitted into evidence of the bag of rock cocaine is the actual bag of rock cocaine found at the scene, (Why wouldn't it be?) she claims that she heard it was a different bag of rock cocaine and requests a read-back of the testimony. Which takes about half an hour longer than you actually have to deliberate. So you walk the six blocks, three of them up hill, back to your car, drive home in rush hour traffic and prepare to come in the next day, hoping it will be your last.

Most attorneys have bizarre and complex theories about jury selection, but the truth is that we all have no idea what makes jurors tick. Once the case leaves your hands and gets into theirs it is all just a roll of the dice. I have won cases based solely on jurors following their own hunches and coming to conclusions that neither side thought were possible.

On the whole, I get why we have juries in this country- before the state takes a man's freedom, it needs the permission of its citizens. "You say this man committed a crime? Well, you need to prove it to us first." But in actual practice, it amounts to a sing and dance, and a hope that they get it right.

Friday, December 15, 2006

The shrinking/growing docket

A couple weeks ago, much was made of Tom Goldstein's post about the declining Supreme Court docket. The Court, he noted, is just taking fewer cases.

The Court returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there. By this point last Term, the Court had granted 26 cases (10 from the “Long Conference,” plus 16 more in the first 6 Conferences of the Term). But this Term, the number is only 18 (9 from the long conference, but only a total of 9 in the six succeeding Conferences).

Then this morning I found this item at (perhaps the best site on the net for search and siezure).
On July 7th, I said that the number of U.S. District Court cases on Lexis would hit 90,000 this year. It reached that number today. 2005's total was 45,000; 2004's was 24,000.

This does not seem to compute. The lower courts, particularly at the trial level, do not generally publish opinions unless the case is likely to result in some precedent at higher levels. However, the Court at the highest level does not seem to be setting any precedent. Even the cases the Court has decided lately are practically useless as precedent- Musladin comes particularly to mind (my prior coverage here).

It almost makes you wonder if the lower courts are trying to provoke some reactions.

Hearty congratulations!

To Gideon's Guardian, a fellow PD somewhere who saved his client's life.

I never thought I'd be thrilled to hear the words, "life in prison without the possibility of parole" but I am.

And I am thrilled for you, too. Pour yourself a drink and a take a rest, you've earned it.

Thursday, December 14, 2006

Volokh has obtained the transcript from a hearing in which a small claims judge gave a Muslim woman two choices- testify without her veil, or have her case dismissed. I previously wrote about this in October.

THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?

[MUHAMMAD]: Yes, sir.

THE COURT: Okay, and what is your suggestion or what are your thoughts on that?

[MUHAMMAD]: I said, "No, I can't."

THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.

[MUHAMMAD]: Yes, sir.

THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.

[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.

THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -

[MUHAMMAD]: Well, that's your preference, sir.

THE COURT: — I think it's a custom thing and –

[MUHAMMAD]: That's your preference.

THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --

[MUHAMMAD]: That's what I'm saying.

THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."

[MUHAMMAD]: Well, that's not correct.

THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.

[MUHAMMAD]: And I respect you, Your Honor, and --

THE COURT: Fantastic.

[MUHAMMAD]: — I would like to ask for a change of venue.

THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --

[MUHAMMAD]: Yes, sir.

THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.

[MUHAMMAD]: Thank you, sir. You have a great day.

THE COURT: Okay. Well, first of all tell me what you wish to do.

[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.

THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.

[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.


[MUHAMMAD]: Thank you.

THE COURT: You're welcome, ma'am.

Okay. Enterprise, case is dismissed.

After reading the transcript, it seems like the Judge was fair and respectful, and as I noted before one's facial mannerisms are vitally important to one's credibility. This is why poker players hide behind sunglasses.

However, I am concerned about the propriety of a Judge deciding what is religious and what is customary. What constitutes religious adherence is, at a certain level, a matter best left to the adherent. Is self-flagellation sacrament or custom? The answer, I would argue, is that it depends on whom you ask.

Courts should not be in the business of deciding what constitutes a genuine religious belief, or whether those beliefs are sincerely held- simply not their bailiwick. I don't know anything at all about the case, and it is hardly a matter of vital importance, but I hope she gets her day in Court.

The answer to a question no one asked

Apparently, it is now illegal to melt your nickels and pennies. Turns out the metal is worth more than the face value of the coin itself. So instead of coming up with a newer and better method to dole out money, we instead protect the inefficient present system?

Puts the phrase law and economics in a new light...

Wednesday, December 13, 2006

Ugh- this is scary...

As a defense attorney, I have represented both snitchers and snitchees. Cooperating with the police is a risky business, for obvious reasons, and in the current climate on the streets it could be fatal if an informant's identity is revealed.

Which is why even I find this to be an outrage- for only $10 a month, you can subscribe to a national database of known informants. The operators of this site- whomever they are- had better not hope any one of these people gets killed. They would definitely be civilly liable under the Anarchist's Cookbook theory, and it would not take much for a smart prosecutor to make out a criminal case- I think it would survive prima facie for at least accomplice liability.

Tuesday, December 12, 2006

FTC ends croudsourcing?

Part of what makes the Web 2.0 so wonderful is its bottom up, viral nature. Somebody has an idea, then shares it- peer to peer. Few things are as effective as saying "I think this is cool- you should check it out."

The top down mainstream marketers have figured that out too. Jason Calacanis reported today that PR firms are paying highly ranked diggers to submit and/or digg up stories. Netscape officially responded by threatening to ban any users founds to be on the take.

Now, the feds are going after them too. The FTC announced that companies using paid P2P marketers must disclose the relationships. Theoretically, any word of mouth marketing could be affected- from fake viral YouTube videos, to people chatting up a movie. It also means the certain end of pay per post.

As a blogger, I say it's about time. These kinds of scams are an insult to true sharing; but as a lawyer, I have to wonder how the FTC will regulate it. Will it be the digger's duty to disclose? Who will pay the penalties? How can the government tell someone that they can't talk about something- not make sales claims, just talk about something? Someone will challenge this for certain.

Monday, December 11, 2006

Robertsian jurisprudence

Remember when the new Chief Justice said that he preferred to decide cases on the narrowest grounds possible so to assure substantial majorities?

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case," Roberts said at Georgetown. "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."
Today, we got a real taste of that kind of jurisprudence.

In Carey v. Musladin, decided today, the Court unanimously reversed the Ninth Circuit, which itself overturned a California murder conviction (i.e., SCOTUS reinstated the conviction). The defendant shot and killed a man outside his ex-wife's home. The decedent's family attended the trial wearing buttons displaying the decedent's picture. Timely objections raised, affirmed on direct appeal. In a federal habeas action, the conviction was overturned by the Ninth Circuit, citing the same principles that prohibit forcing a defendant to wear prison garb, or to be surrounded by police throughout the trial.

So what did the Court decide? They didn't rule that allowing the family to wear the dead man's picture was prejudicial. They didn't rule that it wasn't prejudicial either. They ruled that they hadn't ruled.
Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” [28 U.S.C.] §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.
In other words- they punted. Final score 9-0 to reverse- six in the majority authored by Justice Thomas, Justices Souter, Stevens, and Kennedy each filing an opinion concurring in the judgment.

If this is the Chief Justice's vision, then dark days lay ahead jurisprudentially speaking. Here is a unanimous decision that is virtually useless as precedent. With the Court taking so few cases, it makes little sense that they would take a case and then decide it on narrow procedural grounds. Expect no Browns or Mirandas anytime soon.

It is so frustrating...

The law is free, and I mean that literally. Opinions, statutes, regulations, whatever- these are public documents that are produced in the course of official business.

So why is this stuff so hard to find?

In my state, precedential opinions are posted on the Court's web site for immediate consumption. However, unless you go and physically check the site you will never know it. It would not be difficult for the Court to get the word out via RSS, but they don't do it (and do not get me started on the Pennsylvania Statutes! There is no- NO- official online site containing the statutes. The only site that exists is maintained by an attorney, but it has not been updated in quite some time- much stuff is out of date.)

In fact, using Google Reader as my search tool, the only jurisdictions I could find that officially syndicate their opinions are the state courts of West Virginia, Nevada, and Utah; and the Eleventh Circuit. New Jersey opinions are available through my alma mater's library.

I understand that the law is a (small c) conservative profession, dominated by technophobes and people who have a vested interest in maintaining the status quo, but making it so hard to track down what is public domain, what anyone can access by right makes no sense. Courts should want this information to be freely available. Citizens, who are expected to know the law, ought to access it without the rigmarole (prob! w/20 fidu! & exec!) that 1Ls are taught to endure by Lexis and West. Those services exist not so much because they provide you with the cases and statutes (which they do not own), but because they tell you how to find it.

And I don't know why the profession is okay with that.

Sunday, December 10, 2006

More on the McDonald's sandwich patent

The initial press stories overstated the patent application. McDonald's is not trying to patent the sandwich. They are, however, patent the process involved in making a sandwich. From the application itself:

In accordance with another aspect of the invention, a method of making a sandwich composed of at least a bread component and sandwich garnish is provided, comprising placing sandwich garnish material on a sandwich assembly tool. The sandwich assembly tool has a region for holding sandwich garnish material to be applied to a bread component of a sandwich and the tool comprises at least one cavity. Sandwich garnish is placed in the cavity, a bread component is placed over and adjacent the cavity and thereafter the sandwich assembly tool is inverted while the bread is adjacent and covering the cavity to cause the sandwich garnish to be deposited from the cavity to the bread component. In a sandwich assembly tool having two cavities, sandwich garnish is placed in both cavities, and the sandwich assembly tool is inverted while a bread component completely covers both cavities to cause the garnish in the cavities to be deposited on the bread component.
In other words, you take some meat and/or cheese, vegetables, and condiments and squish them between two pieces of bread. Using the sandwich assembly tool, of course.

It is one thing to patent a tool. It is quite another to patent sandwichmaking.

hostes humani generis

Augusto Pinochet died today, aged 91. As Chile's dictator, he murdered thousands and plundered millions. He was under indictment in Spain, exercising universal jurisdiction over crimes against humanity, and under house arrest in Chile, perpetually too old and sick to stand trial or go to prison.

Ironic, isn't it, that he should escape his so richly deserved fate, because of concerns for his human rights? After all, Pinochet himself once said, "Human rights? That's an invention of the Marxists." (Contained in the CNN story above.)

There will be no state funeral, no official mourning. Good- he doesn't deserve them.

What is the point of law if the powerful and wealthy can avoid punishment by virtue of their wealth and power? Saddam- an enemy of the most powerful nation in history- will get the noose. Pinochet was an American ally- in fact, we probably helped him rise to power- thus assuring that no special tribunal would ever sit in judgment.

This man did not get what he deserved. Tyrants are a dime a dozen, both grand and petty. We'll get the next one.