Tag Archive for 'stevens'

The Last 100 Years of The Supreme Court

So, the census is upon us again.  It’s a time that many people, whether foLast 100 years Supreme Courtr work or leisure, take the time to reflect on where we’ve been and where we’re going.  Since the 1910 census a century ago, American society has changed drastically.  Our population has ballooned by 200%, and we’ve suffered through dozens of wars and societal transformations.  Many cities have been rebuilt out of whole cloth, and most of the ancestors of people now living in the U.S. were then living in other countries.  Still, the largest professions today were about the same as they were a hundred years ago, in name at least.  In practicality however, selling a cell phone is a lot different than selling a fur hat.  And with all this change, it’s certain that what the framers of the constitution thought of judges and lawyers is vastly different than what they have come to be today.  And yet, our legal system continues to work the same way.

Or does it?  Just look at the highest judicial authority in the land, the Supreme Court.  This group of nine justices oversees a judicial system that has grown exponentially.  While originally set up to handle only the most controversial or difficult cases under the law, the Supreme Court received over 10,000 petitions in 2009.  This is a very stiff burden for a true “court of last resort” to handle.  In 1910, most people did not even know where to find a lawyer, but today the average person is more likely than not to be a party to a lawsuit at some point in life.

And as the legal system’s responsibilities have increased, so has the petty political infighting in judicial appointments.  In 1910, Republican president William Howard Taft saw through party differences enough to elevate Edward White to Chief Justice, who was both a Democrat and a former Confederate soldier.  And the senate at the time thought that its duty to affirm the appointments of new associate justices was in place to prevent incompetence, not press a political agenda.  Today, judge Sotomayor’s confirmation was almost exclusively along party lines.  And well, just about everything George W. Bush did during his second term was put to heavy scrutiny, including his judicial appointments.  At the butt of the joke is a field of professionals who have committed themselves to being above the cracker-barrel, misleading political ideologies.

But the rise in the quality of medical care has perhaps presented the greatest change to the Supreme Court dynamics.  Justices today are living longer, fighting fewer gentlemen’s duels, and just generally remaining productive far later in life.  Justice Stevens is 89 years old, and although older justices have sometimes been criticized for their diminished mental faculties in the past (one even tried to commit suicide), there was a longstanding tone of passive respect for public officials in earlier eras.  The same respect has not survived the century.  Surrounded by a retinue to assist him, some have even questioned whether Stevens’ written opinions on the Court’s cases are, in fact, written by his young, inexperienced legal clerks.  This would be a serious ethical violation, and the accusation is one stark indication of a political group that wants Stevens to retire so that Obama can fill the vacancy with an ostensibly more liberal justice.  Others perceive the issue of age as something more systematic.  They have discussed an amendment to the constitution that sets term limits for justices, whether through a mandatory retirement age or by defining a specific number of years that an appointment would last.

And if the Supreme Court is oddly criticized for excessive productivity, it can be imagined what is happening within the legal world as a whole.  Certainly, the profession has done much better with producing qualified lawyers and judges than it has at actually finding needful roles for them to fulfill.  Unemployment for lawyers at the entry level is at an all time high.  Meanwhile, cases are taking longer to conclude, there are more of them, and decisions are appealed much more often.  So in many ways, the legal field has changed in the same way others have.  It is spurred to be more and more productive, while from all sides the costs are expected to be kept low.  To all the overworked, underappreciated justices of the Supreme Court, we feel your pain.

Crooks in Congress: What’s New?

Recently, Alaska Senator Ted Stevens was convicted on seven counts of fraud – and yet the law does not require him to resign from his seat and allowed him to still run for Congress!  It’s of little comfort to me to know that the Senate could decide to censure Stevens (as it’s done to nine other senators in the past) because unfortunately this action would not remove him from office.  It’s a little more encouraging to know that if Stevens were elected (he barely lost), the Senate could expel him by a two-thirds vote; however, it’s not clear whether they would actually vote him out of office . . .

Although four senators before Stevens have been convicted of crimes, two resigned, one died, and one’s term expired before the Senate had a chance to vote on his expulsion.  According to Senate historian, Don Ritchie:  “The Senate is a very collegial body and really doesn’t like to act in that sense.”  As such, they would probably wait for any appeals to be decided before taking action.  So, when will Stevens be considered “convicted”?  A majority of scholars believe a jury’s verdict seals the deal; however, most precedent says a judge’s formal entry of judgment and sentence is definitive. 

At least Stevens couldn’t cast a vote for himself – or anyone – for now since Alaska law denies felons convicted of crimes involving moral turpitude the right to vote until they’re “released from all disability arising under a conviction and sentence, including probation and parole.” 

It baffles me that questions have been raised as to whether Stevens’ crimes involve moral turpitude.  According to the Alaska statute, felonies involving moral turpitude include crimes that are “immoral or wrong in themselves such as murder  . . . extortion, coercion . . . theft, forgery . . . scheme to defraud, falsifying business records . . . bribery, receiving a bribe, perjury, perjury by inconsistent statements . . . and criminal mischief.”  Given that bribery is listed as a crime qualifying under the statute, it seems clear to me that Stevens was engaging in more than enough “moral turpitude” to be covered by the law.

Jurors Gone Wild

During Senator Ted Stevens’ corruption trial, the jury foreperson urged U.S. District Judge Emmet Sullivan to dismiss one juror, whose “violent outbursts” and disrespectful behavior were disrupting jury deliberations.  In response, Judge Sullivan counseled the jurors to be “courteous and respectful of each other.”  It seems that, at least in this case, a warning was enough to make jurors behave . . .

Judge Sullivan’s reluctance to meddle with jury communications is understandable; after all, a mistrial could be declared if it were found that he exerted unfair influence over the jury.  Yet, if judges adopt overly lax attitudes and fail to remove problematic jurors, other problems can arise. 

For example, in the 1985 case Hernandez v. United States, a trial court for the Eastern District of New York failed to dismiss one juror when the others complained that she was mentally incompetent.  Although the court eventually dismissed the troublesome juror, it did so during deliberations in which she was the sole hold out; as a result, the Second Circuit reversed the trial court, stating that by delaying dismissal, the court created the improper appearance of dismissing to avoid a hung jury. 

During the course of trial, jurors can be dismissed for a variety of reasons, such as incompetence, illness, death, or death of a loved one.  Commonly, dismissal is based on a juror’s inability to remain fair and impartial.  For example, a juror’s impartiality can be tainted if he or she gains access to forbidden media coverage of the trial, even if that access was inadvertent.  In addition, according to the Second Circuit, jurors can be removed based on evidence that they intend to nullify the law.  

Traditionally, jurors have received limited instructions regarding deliberations.  Basically, they’re told: consider the evidence, talk with other jurors about it, but don’t change your opinion just to conform to others’ views or to reach a verdict. 

Are these minimal instructions sufficient though?  It seems to me that a juror could easily mistake dissatisfaction over another juror’s performance (i.e. incompetence) for a disagreement over evidence – an improper ground for dismissal.  

Defense lawyers commonly view tension among jurors as positive, as it ups the chances that they won’t reach a unanimous decision required for a guilty verdict.  Unfortunately for Stevens (and his superstar lawyer, Brendan Sullivan) his jurors, including the especially riotous one, agreed on at least one thing – the senator was guilty.