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Tweet From the Juror Box, Go to Jail

I’ve blogged plenty of times before about jurors, and other participants in the legal system, getting themselves into trouble by using social networking sites at inappropriate times, in inappropriate ways. Usually, these cases involve jurors or judges expressing bias in a case, or lawyers absentmindedly publishing confidential information on the Internet.

There tends to be a common theme in discussions of this issue: the legal system has trouble keeping up with technology. But, it looks like California is going to become one of the first states to make a serious effort to close this gap, by clarifying the rules governing technology and courtroom decorum, and that there are still places in the modern world where tweeting, texting, and posting on Facebook are simply not acceptable. And, more importantly, reminding people that some information still shouldn’t be made public, no matter how easy it is to do so.

And this proposed law is not messing around: it requires jail time, and requires judges to explicitly explain to jurors that communicating to the outside world about the case, or doing any independent research on the case, is prohibited, and imposes jail time for jurors who violate these rules.

I think it’s very unfortunate that a rule like this is necessary, but it’s necessary, nonetheless.

The legal system in the United States still relies very heavily on juries to make decisions, more than perhaps any other country. Even in the UK, where our jury system originated, the use of juries has been reduced significantly over the centuries. So, because juries are such an integral part of the American legal system, maintaining the integrity of juries, and individual jurors, is absolutely essential.

Many people are incredibly cavalier about their use of social networking services like Twitter and Facebook. Some people share every aspect of their lives online. If that’s how you want to live, nobody should stop you. However, when you are serving on a jury, somebody’s life may, quite literally, be in your hands. While you have the right to share every aspect of your life on line, if you want to, you don’t have the right to toy with the life of another person.

Even if posting information about a case doesn’t directly prejudice a juror’s decision, it can harm the image of the jury system in the eyes of the public. And this isn’t just vanity – the jury system’s effectiveness is largely dependent on the public’s acceptance of its legitimacy.

And when jurors are tweeting from the jury box, or talking about deliberations on Facebook, anyone who reads these postings would seriously question that juror’s impartiality. In one case, a juror even tweeted, before the trial was over, that she was looking forward to convicting the defendant.

Thankfully, these occurrences are relatively rare. The purpose of this new law seems to be to ensure that it stays that way.

Jail time may seem harsh, but as long as the sentences are not excessive (certainly they should be no more than a year, and probably significantly less than that), I think that this is just the deterrent that jurors need to take their responsibilities seriously. And because the law requires judges to clearly explain these new rules to jurors, as well as the consequences for breaking them, nobody who is convicted of violating the law will be able to claim ignorance (not that that’s an excuse, anyway).

While it’s usually pretty easy to determine if a juror has posted information about a trial online (where everyone can see it, and it’s usually attached to their name), what’s more difficult is stopping jurors from consulting outside sources during a trial, especially if it’s a high-profile trial.

When deciding on a verdict, jurors are only supposed to consider the evidence that’s presented to them by the lawyers for each side of the case, the testimony of witnesses that have been called, and the judge’s jury instructions. However, if a trial is being covered by the media, you can be sure that the airwaves (and the Internet) will be rife with news reporting about the trial and the events leading up to it, and, perhaps more dangerously (to a juror’s impartiality), constant speculation and debate. Since anyone with a cell phone that was made in the last 5 years or so can access the Internet at virtually any time, they have access to all of this outside information and speculation, which is virtually guaranteed to shape their views of the parties and witnesses, especially when the media delves into subjects irrelevant to the case at hand, like their personal lives.

I’m really not sure how we can prevent jurors from accessing outside information. The fact is, in this modern, interconnected world, if a juror wants to access outside commentary about the trial they’re sitting on, they can, and if they’re discreet, it’s unlikely that anybody will find out.

Hopefully, these rules, when explained to jurors, will deter such conduct, not because of the risk of getting caught, but because they will impress upon jurors the importance of the task at hand.

If You’re a Juror, Don’t Ask The District Attorney on a Date

A word to the wise: if you’re a juror in a criminal trial, and find yourself attracted to one of the lawyers, it’s probably not a good idea to slip a note to the judge asking for the “cutie” Assistant District Attorney’s name and phone number, while also asking if the judge can recommend a good divorce lawyer.

The defense attorney thought that this amounted to juror misconduct, and moved for a mistrial. The judge, after considering the arguments from both lawyers, and speaking with the juror in question, decided that the juror, while showing exceptionally poor judgment, did not demonstrate bias toward either party in the case, and refused to declare a mistrial. The defendant was convicted of manslaughter, and sentenced to prison.

The defense appealed, making the same argument that they made at the trial level. The highest court in New York has finally weighed in, and agrees with the lower courts that such action, while inadvisable and inappropriate, does not necessarily warrant a mistrial or the overturning of a conviction.

Still, the fact that such conduct even occurred is somewhat disturbing, and the fact that it created a plausible (though ultimately rejected) grounds for a mistrial is telling. Courts are extremely wary of anything that might give the impression that a juror is biased, or that there has been improper contact between a juror and one of the parties to a case. If you’ve ever served on a jury, you were probably told by the judge that any contact with the lawyers or parties on either side of the case was 100% prohibited. The judge usually says that it doesn’t matter how innocent or trivial the contact is.

This is because a public perception of impartiality is absolutely essential for the judicial system to maintain a sense of legitimacy. And if members of the public see an attorney or judge speaking with a juror outside the courtroom, even if it’s over something as trivial as the weather, they might get the impression that something improper is going on, undermining the public’s trust in the impartiality of the legal system.

Now, in this particular case, the judge decided that the juror’s conduct, while very inappropriate, did not serve as evidence that she was prejudiced toward one side or the other. She simply found the DA attractive, or was possibly making an extremely ill-conceived attempt at humor. After being advised by the judge and, presumably, both attorneys that her conduct was unacceptable, she indicated that she understood this, and assured all parties involved that she could render an impartial verdict.

The court, and subsequent appeals courts, seemed to believe her, and upheld the jury’s conviction.

Nonetheless, this should serve as a cautionary tale for jurors. If you’re called to serve on a jury, you’re playing an essential role in America’s justice system. The U.S. is one of the few countries that still uses juries in most trials. Although the jury system, as we know it, originated in the United Kingdom, that country uses juries far less often than it did before. The jury system is certainly open to criticism, but it’s currently the system we’ve got, and it’s therefore up to every juror to ensure that it operates with integrity and fairness.

So, if you’re called to serve on a jury, here’s a word of advice that should go without saying: do whatever the judge tells you, and don’t initiate any type of contact, no matter how innocent or trivial, with the lawyers or parties to the case.

In a broader sense, simply remember that you are charged with deciding the fate of another human being. If you go into jury duty determined to treat it with the seriousness it deserves, chances are you’ll avoid pulling any shenanigans like the juror in this story.

Remember, it’s entirely possible that you could be on trial one day. If this happens, wouldn’t you want your fate decided by jurors who take their responsibility seriously? I know I would.

Lawyers Take Courtroom Antics to a New Level

An attorney from a well respected mid-size Chicago firm recently filed one of the most ridiculous pre-trial motions to date.  What is especially shocking is this pre-trial motion was successfully filed and responded to.

Frivolous motions are not uncommon in litigation.  What a person has to take away is the harsh truth that at times, the judicial system is less about justice and more about useless games and malicious strategies.

Defense counsel from the firm Gauthier & Gooch filed a motion objecting to a particular person sitting at the plaintiff’s table.  Was this person violent or disruptive?  Not at all.  However, this individual woman seemed to have a large chest.  Defense counsel argued the following in his motion:

Defendant’s counsel is anecdotally familiar with the tactics and theatrics of Plaintiff’s counsel, [redacted]. Such behavior includes having a large breasted woman sit next to him at counsel’s table during the course of the trial. There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff’s Counsel’s table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant’s in this or any other cause. Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel’s table during the course of this trial.

What defense counsel is essentially saying is that the other side was using the woman to distract the jury from paying attention to the defense’s argument, therefore hurting the defendant’s chances of winning.

If you feel this may have been one of those rare, awkward occurrences, you are wrong.  In a 2009 trial defense counsel objected to the plaintiff’s attorney because he wore “hole-ridden Cole Haan loafers.”  The defense attorney argued that by wearing such shoes, his opponent was trying to appeal to the jury members by showing them that he was just a “humble and simple guy.”  The logic behind this claim is based on the fact that most people have their own ideas about attorneys, often not favorable ones.  Therefore, an attorney who can disprove such negative stigmas, perhaps by showing a simpler, more humble side, can therefore help his or her case by appealing to a jury member.

In both these instances, while defense counsel writes motions to claim that the other side is using malicious strategies to win over the jury; can the other side not argue that the defense is using their motions to distract the court proceedings?  Both sides are playing games and using cheap tactics to try to help their side.  However, neither side is using legally-oriented strategies to win their case.  In law school, we are taught to argue based off of merit and substantive facts.  Yet, courtroom antics seem to stem far from these principles of justice.

I guess the lesson to take away is to think before taking someone to court, because it may be that your lawyer gets carried away in issues that have nothing to do with your case.

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.