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If You’re Charged With Felony Murder, Don’t Sucker Punch The Prosecutor

You know, losing can be tough.  Whether it’s a game of basketball, a hot dog eating contest, or even when you’re just trying to out-do your neighbors in a dazzling display “who has the bigger television,” the feeling of not being up to snuff is undoubtedly an awful one.

But what’s even more difficult than losing is fighting the urge to be a sore loser and act out against your fellow competitors and/or the audience.  However, if you ever find yourself in a losing position, it’s important to fight this urge because as the old saying goes, “nobody likes a sore loser.”  And nowhere is this more true than in the courtroom, because there they not only dislike sore losers, they always hold a particularly high disdain against violent ones who attack the opposing counsel.

Yep, an Oklahoman man by the name of Emanuel “E Man” Mitchell recently demonstrated the best way to not win over a jury.  Mitchell was standing trial for felony murder and conspiracy.  But when the prosecutor, Oklahoma County District Attorney David Prater, began giving his argument to the jury over the proper punishment for Mitchell, E Man snapped and jumped out from his chair to take a swing at Prater.  Luckily, Prater was able to take the sucker punch like a champ and unfortunately for Mitchell, Prater was able to give it back a little bit better.  The District Attorney pushed Mitchell back and caused him to topple over and dislocate his shoulder.  Quite a push indeed.  Prater came out of the scuffle mostly unscathed with only minor cuts and bruises, while Mitchell had to be sent to the hospital for his injuries.

This story also serves as a perfect example on how to lose major street cred.  I’d be horrified if I ever got beat up by some paper pushing attorney.  But I can’t imagine having it happen in front of a whole room of people, especially when everyone knows who I am.  If I was Mitchell, I’d be searching for the nearest hole right about now because I wouldn’t want to be seen until the whole thing blows over.

Speaking of Mitchell, though the length of his punishment has yet to come down, I think I’m going to go out on a limb here and say that the jury will probably try and put him away for the maximum time allotted.  I haven’t read the case brief, but let’s just call it a hunch.  (UPDATE: The jury recommended Mitchell be given life in prison)

One of the crimes Mitchell was charged with, by the way, is an interesting oddity worth exploring since many legal laypeople may be unfamiliar with it.  On first glance, the term “felony murder” may seem like any old murder charge where a person is accused of killing someone else.  But it isn’t.  Felony murder actually is a term used to describe a crime in which a third party is killed because of a felony committed by the defendant.  It’s a bit of an oddity because the defendant doesn’t actually have to be the person who kills the third party, the defendant only needs to be in the process or cause of a felony level crime committed that resulted in the murder.

Sound a little confusing?  Don’t worry, I’ve yet to meet any first-year law student who wasn’t a little bewildered by the concept.  It’s definitely one that is better explained by way of an example.  In Mitchell’s case, he’s accused of ordering his 16-year-old cousin to rob a drug store.  However during the robbery, Mitchell’s cousin was shot and killed by the store owner.  Thus the felony (the robbery) was started because of Mitchell’s orders and because his cousin was killed, under the felony murder rule, Mitchell can now be charge with his cousin’s murder.

See why it can be sort of a tough rule to comprehend?  There are many variables to consider when trying to show that a person is liable under this law.  But the most essentially element is whether it can be shown that the murdered third party was killed as a consequence relating to the felony.  The standard used to measure this, as well as the limits to actual law itself, vary from state to state.  It can be very confusing, which is why critics of the felony murder rule often point to this as one of the major faults with the law.  Specifically, that the connection between felonies and deaths that occur can often be very tenuous, and yet a defendant can easily have the charges against them exponentially increased under the felony murder rule even if the defendant can’t really be held liable for a third party’s death.

Mitchell’s case is a good example of the felony murder rule applied correctly, assuming all the facts reported are true.  The rule is designed to hold defendants responsible for the consequences of their crimes, after all.

But problems arise in those cases that aren’t quite as clear cut.  Say for instance if Mitchell’s cousin was able to rob the drug store successfully and instead went home with the ill-gotten goods.  If among the stolen items procured by Mitchell’s cousin was a bottle of poisonous pills that was mislabeled as aspirin and Mitchell’s cousin then took the pills and died from them, would Mitchell than be liable under the felony murder rule?  Depending on the state, the jury, and the skill of the attorneys, he may or may not be.  That’s the inherent problem with the rule, the abundant gray area.

Informing the Public of Jury Nullification: Is It Jury Tampering?

I’ve written before about jury nullification. I generally believe that it is a great tool that the general public has at its disposal to render laws it disapproves of ineffective. And despite some of its negative consequences, it is an invaluable check on the power of the government, but many jurors are not aware that they have a right to acquit a defendant for any reason, regardless of the weight of the evidence against them

Perhaps in an attempt to remedy this fact, a political activist has spent much of his free time standing in front of a federal courthouse, giving passersby pamphlets containing information about jury nullification, presumably in the hope that some of them would be jurors, and that they would take his message to heart.

This conduct is clearly protected speech, right? Surely, what he’s doing couldn’t be considered a crime. Apparently, some would disagree: he’s been arrested and charged with jury tampering.

It should be noted that the defendant had no idea which, if any, of the people he spoke with were jurors. He didn’t ask anyone if they were a juror, and did not discuss particular cases. The literature he passed out was simply a general explanation of the concept of jury nullification.

I would understand the government’s actions completely if this person were singling out jurors, or discussing specific cases. After all, the integrity of the jury system is essential to the functioning of our criminal justice system. And one of the most important elements of that integrity is insulation from outside influences.

On the other hand, when jurors consider the evidence presented to them, and weigh it against the law as instructed to them by the judge, they’re not expected to forget about their life experience, and the common sense they’ve hopefully acquired as people living in the real world. After all, we’re entitled to a trial by a jury of our peers, and, as our peers, jurors are expected to use their common sense and experiences, which they presumably share (to a degree) with the defendant.

If jurors learned about, and formed their opinions on, jury nullification through the ordinary course of their lives, it’s obvious that there would be no problem with this. I don’t see why it should be any different if a juror happens to find out about jury nullification right before serving on a jury.

After all, courts have repeatedly held that jurors are allowed to engage in jury nullification without any repercussions, so it probably shouldn’t matter if they learned about the concept of nullification a month or an hour before serving on a jury.

On the other hand, if the defendant were distributing information about cases he knew were being tried at that courthouse, and airing his opinions of a defendant’s guilt or innocence, he would probably be committing a crime, especially if it could be shown that he was knowingly targeting individual jurors.

This appears to be a pretty clear-cut case of political advocacy, which is unambiguously protected by the First Amendment.

Hopefully, this case will be dismissed on First Amendment grounds, before it goes any further. One of the most basic elements of a free society is the right to express information and ideas without fear of any legal repercussions. This right is just as essential (if not more essential) when it is applied consistently to protect unpopular speech.

Many people may simply believe that a guy handing out pamphlets in front of the courthouse is a crackpot or rabble-rouser. They’re free to believe that, and he could be, for all I know. But that shouldn’t matter, even if it’s true.

Even if you believe that his ideas are wrong, I don’t see how one could be opposed to letting him freely express them.

Now, the right to free speech is not 100% absolute, and can be balanced against compelling government interests. And there’s no doubt that the government has a very strong interest in maintaining the integrity of the jury system. However, it’s hard to argue that this man’s conduct did any significant harm to the jury system.

If anything, informing jurors of this important check on state power only strengthens the jury system.

With New Scientific Evidence, Some Shaken Baby Convictions Questioned

Back in the 1990s, we learned a lot about the serious physical harm that can result if a baby is shaken. While it was probably intuitively obvious to everyone, forever, that violently shaking an infant puts them at great risk of serious injury, a few high-profile cases brought the issue to the forefront. There’s absolutely no doubt that shaking a small child can easily cause serious, sometimes even fatal, injuries.

Now, however, new scientific evidence (longer article here) suggests that some of the testimony used in criminal cases to convict people of child abuse in shaken baby cases may not be as reliable as once thought, and courts may have to re-examine some of their past convictions, to the point that some experts are suggesting that innocent people might have been convicted of crimes they did not commit.

Basically, it’s looking like the internal brain and eye injuries characteristic of the whiplash-like action that shaking induces (which leave few, if any, external signs) have other causes which are more common than once thought. I should stress that this new information doesn’t even suggest that shaking a small child is less dangerous than previously thought; it’s still a recipe for disaster. It just suggests that other somewhat-common accidents can cause similar injuries, and should be considered and thoroughly investigated before a parent is charged with child abuse.

However, whenever evidence like this comes out, we have to face the extremely uncomfortable proposition of re-investigating what were thought to be open-and-shut cases, knowing full well that we may find out that innocent people have been convicted.

Several branches of the Innocence Project, which have long championed the use of DNA evidence to exonerate people wrongfully convicted of crimes, including some people on death row, have turned their attention to shaken baby cases, and this new scientific evidence, particularly in cases involving parents and nannies who had, up to the incidents in question, been model caretakers with no history of abuse or neglect.

While revelations like this are ­certainly upsetting, that should never stop us from re-investigating criminal cases when new evidence becomes available.

After all, our criminal justice system is predicated on the notion that everyone should be presumed innocent until proven guilty, and if the prosecution fails to prove someone’s guilt beyond a reasonable doubt, they must go free, even if everyone agrees that they’re “probably” guilty. This necessarily means that, sometimes, a guilty person will go free. But, that’s the price we, as a society, have chosen to pay in exchange for the knowledge that (at least in theory) it’s extremely unlikely that an innocent person will be convicted and imprisoned.

However, as we’ve seen in other criminal cases, especially when DNA evidence is involved, the justice system values finality almost as much as it values fairness. So, courts are often reluctant to re-open cases where the defendant has been convicted, and exhausted all appeals. At that point, after all, the whole thing is supposed to be finished. But ultimately, everyone recognizes that re-opening these cases, especially when they result in exonerations, is the right thing to do.

Another unsettling element of this story is the fact that many physicians who have built their careers studying and treating injuries characteristic of shaken children have also turned their services as expert witnesses into extremely lucrative side careers. One aspect of the legal system that surprises many people who don’t work in it is the vast amounts of money that expert witnesses can charge for their services.

Intuitively, the idea that a witness in a court of law can charge money for his or her testimony seems ridiculous. And most witnesses cannot (though they can be reimbursed for any expenses the incurred in testifying, such as fuel costs and the like). Expert witnesses, however, can charge thousands of dollars per hour, on the grounds that they usually have to conduct a lot of research and possibly experimentation in preparation for their testimony. In an effort to avoid ethical problems, the fee an expert charges cannot be contingent on the outcome of the case. Nonetheless, there are still concerns that expert witnesses, being paid by the party that’s calling them, might have some incentive to skew the data in favor of their clients. That doesn’t mean that the services of expert witnesses aren’t essential, of course.

But it’s important to remain critical when examining their testimony, and always being open to the possibility that the scientific consensus might change, and that new evidence casting doubt on the outcome of an old case might become available.

bail bonds

America’s Bail System Needs To Be Reformed

In case you missed it last week, National Public Radio ran a fascinating three-part series on America’s bail system.  The whole series is available here.  If you happen to have some free time on your hands, you should definitely check it out as it does an amazing job of pointing out how messed up on country’s legal system can be if you’re poor.

The NPR report points out a number of deficiencies with the way America’s bail system is currently set up.  The problem is essentially one of access and the disparities in treatment received by those with money versus those who are lacking in it.

Basically, in America when someone is arrested for a crime, that person is placed in jail until the time of their trial.  This isn’t true for all criminal offenses as laws vary from state to state; however, typically for most felony level offenses the defendant is placed in jail until their trial begins.  The only option for defendants in this situation is to either wait it out in jail or post bail, but without money, jail it is.

The rationale for this holding system is that for those who commit serious offenses, the judicial views these suspects as more likely to try and flee formal prosecution because of the heavier consequence they face compared to those who commit infractions or misdemeanors.

Now certainly the government’s fears aren’t completely unfounded.  A felony conviction carries real prison time, very high fines, and also damages a person’s record, which makes it harder for the convicted defendant to get a job and even qualify for loans.  There’s a lot more reason for someone facing these possibilities to try and run away from police custody versus those who commit lesser offenses.  Forcing them to post bail for their release guarantees that the government can at least recoup some of their losses from having to expend resources to track and re-arrest a suspect who flees the court’s jurisdiction.  It also provides some incentive for the suspect to stay and fight their case as an innocent verdict will entitle the suspect’s bail payment to be returned to them.

However, the problem is that most people arrested for felonies generally don’t have enough money to afford to post bail.  And if you think it’s because bail is overly expensive, you’d be mistaken.  Certainly, bail can be high, but for destitute people, even a couple of hundred bucks can be enough to keep them from being released.  The current bail system can devastate a person’s life, especially the working poor – those with jobs who get paid only enough to survive.  For these people, not being able to post bail prohibits them from working at their jobs and can often cause them to lose their employment and livelihood.  This loss not only hurt the arrestee, but also their loved ones who depend on their income to live.

It’s a heartbreaking situation that’s compounded all the more by the bail bond industry, which for most felony offenders is the only place to turn to for bail money.  Bail bondsmen loan defendants the money needed to post bail.  The catch is that they do it at a high interest rate.  However, if the defendant is found innocent, the loan is returned to the bondsman from the court.  But, as you all are probably already aware, our legal system is quite congested and most criminal cases are dealt with via plea bargaining where the defendant accepts a guilty or no contest plea in exchange for a reduced sentence.  This may be a faster way for the defendant to return to his or her life, but pleading out in this way means that they are now responsible for paying back their bail bond with interest.

The NPR report suggests the better way to handle felony defendants is the get rid of the bail system altogether and use alternative means of monitoring such as ankle bracelets.  This would be much cheaper for tax payers whose money would otherwise go toward housing and feed the suspect while they’re in jail, and it would also allow the suspect to return to their normal lives.  I certainly agree with NPR’s sentiments and support greater use of alternative monitoring for suspects.

However, I wouldn’t go as far as supporting a complete abolishment of the bail system; rather a better way to go about it would be to merge the two monitoring methods.  This can be accomplished by modifying the traditional bail and ankle bracelet systems to be offense-specific.

For instance, more serious crimes, such as manslaughter should require the posting of bail and possibly even an ankle bracelet depending on the crime’s severity.  Lesser felonies on the other hand, such as grand theft, should only require an ankle bracelet and no bail.  This system would ensure that only those accused of serious crimes be subject to the higher bail requirements, while leaving non-violent offenders free to return to their lives while they await their trial.

Now certainly there is always the possibility that an innocent person wrongly accused of a serious felony could end up having their life destroyed under this system.  However, compared to the current system where every felony offender, regardless of their felony’s severity, faces this possibility, the modified system proposed here would ensure that a lot less innocents endure such an injustice.

The Montana Pot Rebellion and Jury Nullification

There’s an interesting story coming out of Montana involving what may be one of the most extreme cases of jury nullification I’ve ever heard of. In a criminal case involving possession of a small amount of marijuana, an entire jury panel refused (also seen here) to sit, each of them saying that they would never convict a defendant for possession of a fraction of an ounce of marijuana.

The defendant ended up pleading no contest, which is not an admission of guilt, even though it usually has the same practical effect.

This case raises some extremely interesting questions about marijuana laws, jury nullification, and just how responsive the courts have to be when public opinion is overwhelmingly opposed to a particular law.

First of all, public opinion seems to be shifting against criminalization of marijuana, or at least extremely harsh punishments for its possession and use. Obviously, this is a matter of personal opinion, policy preferences, and priorities, on which reasonable minds can differ.

The fact remains, however, that the public (at least in some parts of the U.S.) is firmly on the side of decriminalization of marijuana, or greatly reducing the criminal penalties for possession of the drug. So, what happens when the state calls on members of the public to serve on a jury where the defendant is charged with an act that the public doesn’t believe should be criminalized?

If you’ve ever been called to jury duty, you probably know the drill: the judge and the lawyers for both sides tell you that you have to render a verdict based solely on the evidence presented by each side, and the law as instructed by the judge. You’re told that you have to put your personal views on a particular law aside, and if you’re unable to, you will probably be dismissed from the jury pool.

However, what the court rarely tells the jury about is the practice of “jury nullification.” This is when a jury finds a defendant not guilty, even if they believe that the prosecution has proven all of the facts alleged against the defendant, because they disagree with the law the defendant broke.

The exact nature of jury nullification is sometimes hard for people to wrap their heads around. It’s not a special right of jurors codified in the constitution, or any other source of law, nor is it some secret cheat code.

It’s simply a by-product of the basic nature of the jury system: when a jury renders a verdict, the jurors don’t have to explain their reasoning. It’s that simple. U.S. courts have held that, while jury nullification isn’t exactly a “right” of jurors, jurors can never be punished for rendering an “incorrect” verdict, unless there is clear evidence of misconduct. In criminal cases, unlike civil cases, a court cannot under any circumstances direct a verdict against the defendant. This makes sense, because our constitutional right to a trial by jury in criminal cases wouldn’t mean much of the jury’s verdict could be easily overridden by the court.

This makes jury nullification an extremely powerful tool, and if juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective. After a while, prosecutors start to focus on prosecuting other crimes, and with a law going completely un-enforced, lawmakers may reconsider its wisdom.

However, this case went a step further: during jury selection, every prospective juror stated that they would not convict the defendant, regardless of the evidence, to the point that an unbiased jury could not even be impaneled. I’ve never heard of anything like this happening before, and if you’re in Montana, and believe that marijuana should be decriminalized, you might take this as a sign that public opinion is shifting in your favor.

So, what do you do if you’re picked for jury duty and are strongly opposed to the law that the defendant is charged under? That’s actually not an easy decision. If you simply state your views on the law, the prosecution is almost certain to dismiss you as a juror. However, if you really want to be on the jury specifically for the purpose of nullifying the charges, you have to lie when asked about your ability to be impartial. Obviously, it’s best to simply tell the truth.

Interestingly, David Simon, the creator of The Wire, has called on Americans, when called to serve on juries in cases involving non-violent drug offenses, to vote for acquittal, regardless of the evidence. It’s unknown how effective this campaign has been, but it’s an interesting idea. But is it a good one?

Jury nullification is not without controversy. Some have argued that it amounts to mob rule, and undermines our unique brand of representative democracy (as opposed to direct democracy). On the other hand, if a person is called to serve in a jury – an important civic duty – they effectively become part of the criminal justice system, and can serve in the role of the justice system’s conscience, and can serve as a direct check against government overreaching. If the people are the “fourth branch” of government, jury nullification is their primary means of exercising their power.



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