Patterico and His Readers Discuss Jury Nullification

Seems my discussion on Patterico's Pontifications here and at our Sister Blog That Lawyer Dude (here), on the rights and obligations of juries to nullify has set off quite the discussion at Patterico's blog.

Patterico took me on (See note 52-57) and then decided that the issue was important enough to blog separately (check it all out here) He had over 90 responses before I left my response.

Here is Patterico's position on Nullification:

"Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?"

And here is my response (I am number 92!! Who knew people cared about jury nullification so much):

"Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
Ok you posit as follow:

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson."

I think the right of the jury to keep the government in check is an important jury right. It is not to be used all the time. I would have no problem with it being used in extreme cases. I believe that testilying by police hurts the criminal justice system far more long term than does any one verdict that allows a guilty person to go free. In the right case it can change the way courts and prosecutors do business. It can change the way certain police departments react as well. I do not think the Simpson jury nullified so much as I think they just didn't know what to beleive so they chose to believe none of what the prosecution offered. It is important to know however that the verdict in Simpson changed the face of how evidence is handled in LA and in many other parts of the Nation, and that is good for everyone, especially the innocent.

What a fun and interesting exchange.

Sui Generis' Monday Blawg Round Up a Must Read

If you click on the above title you will come to one of my favorite blawgs for lawyers. Nicole Black's Sui Generis. Every Monday (well at least she tries for Mondays) Nicole blogs about the best of the NY Blawgs the week before. She tries not to leave anyone out. She raises hits for us all. More importantly she helps us to keep current.

Nicole is a really good writer and she writes clearly and crisply. She is funny too! Her Blawg features regular comedic breaks that include the ridiculous things people say on the witness stand. A lot of the stuff comes out of the mouths of attorneys too.

Wednesday is a newspaper round up of the things she finds the state's newspapers are writing about.

Finally nearly everyday Nicole writes her own blog, disecting the cases and teaching us how to use them. Nicole does great work. If you are one of the lawyers who frequents my blogs, go to my blogroll and click on Sui Generis, I am sure you will not be disappointed.

By the way today Sui Generis has links to our blog and to Second Circuit blog's story on the US Court of Appeals for the 2nd Circuit ruling that a judge could not reject the 100:1 Coke to Crack ratio in fashioning a sentence, Sui links to Small Towns Lawyer Blog who writes about the amendments to the Freedom of Information Law in NYS, and there are links to a bunch of other stuff on there too. Enjoy.

Week in Review Vol. I No. 1: 2 New Blawgs; The Upcoming SCOTUS Calendar; JUST US Opposes Habeas For Innocent Man; & NY's New Court of Appeals Judge

All week I read a thousand web posts, articles, and such, wishing I had the time to blog them all. Of course I could never do that and still practice law and spend time with my family. I decided to try to put together a post on a weekly basis that let's me bring the posts to your attention and throw in my two cents where I have the change in my pocket. (Tribute to the NY Times Sunday edition whose Week in Review Section has been my favorite read for over 35 years.) I will be doing the same at our sister blog That Lawyer Dude. The difference will be the items chosen in each post will usually be a little different. Thus without further adieu here is Volume I No.1:

A. Two New Legal Blogs of Note

I want to bring to your attention two new legal blogs (or Blawgs as they are often referred to.)

The first is from down Texas way. It is aptly named The Texas Law The writer Bryan Owens is a Texas lawyer with a New England upbringing and a degree from Harvard University undergrad and Loyola Law.

I like the blog. Especially the dual civil and criminal tracks it takes. If you are interested in reading a new voice in the Blogosphere or just want to see what's happening down in the Pecos, check out The Texas Law Blog.

A new and interesting niche criminal blog is on the scene. The Environmental Crimes blog covers crimes against the environment. It is written by Walter James a former BIG LAW Partner who has decided to chuck the baggage and deliver service to clients from the point of view of the solo/small firm lawyer.
Here is Walter's take on the POV of his blog:

"This blog will explore, on different levels, environmental crimes - how they are investigated, charged, tried and appealed. We will explore what the criminal mens rea is and how it evolved. We will explore the responsible corporate officer doctrine and the open fields doctrine. We will discuss how to prepare for the environmental criminal inspection and the service of a search warrant. And we will explore other avenues of what goes on in an environmental criminal investigation."

It has been in business a couple of weeks but from what I see it looks like a well researched and well written blog. I welcome Walter to the Crim blog part of the Blogoshpere.

B. The Upcoming SCOTUS October Term

Howard Bashman (author of the authoritative How Appealing Blog, as well as a writer for Law.Com, and a practicing appellate lawyer in Philly)has this column about the upcoming SCOTUS October term argumentss at Law.com.

Howard notes that the term has a number of criminal law cases on the docket.

Of one set of appeals to be heard during the first week of the new term, Mr. Bashman writes:

"The question presented in the consolidated cases of Lopez v. Gonzales and Toledo-Flores v. United States is whether an alien who is convicted of a drug crime that is a felony under state law, and has been sentenced under state law to more than one year of imprisonment, has committed an "aggravated felony" for purposes of federal immigration law even though the same offense is generally punishable under federal law only as a misdemeanor."

October also features a death penalty appeal from California and a sentencing case that asks the question: "(Does) California's Determinate Sentencing Law violate the 6th and 14th Amendments to the U.S. Constitution by permitting California state court judges at sentencing, to impose enhanced sentenced based on their determination of facts neither found by the jury, nor admitted by the defendant?"

The whole column is an interesting read. I would note that keeping an eye on the SCOTUS calendar is a good idea. Especially in the sentencing area as the court tries to help the circuits an district courts make sense of the Booker/FanFan decision.

C. US Opposes Habeas Relief For An Innocent Man: or The Third Biggest Lie In The World, "I'm From The Government, I Am Here To Do Justice."

Duarnis Saul Perez gets deported. Why? It really doesn't matter. Why not? Because he is an American citizen and cannot be deported. He comes back to his homeland the good ole' US of A. He gets arrested for illegally reentering the country. He sits in jail for 57 months convicted of a crime HE CANNOT COMMIT. As he is about to be banished a second time, ICE (formally INS or Immigration) realizes the error.

Perez files a Writ of Habeas Corpus to expunge his record because HE DIDN'T COMMIT A CRIME!!!!!! His country's response after putting him out and jailing him for crimes he couldn't commit?

Of course, they oppose his request. What is up with that? How about we say "Sorry son. Maybe we screwed up?" "We didn't mean it?" "Here's a couple of years wages to help you get on your feet after five years of wrongful prosecution?" (After all we can afford that, look at the size of the handouts we give Haliburton.)

Karl Keys has more overhere at Capital Defense Weekly. There is a link to the NY Law Journal article but you may need a subscription. I hope someone is bringing a 42 USC Section 1983 action on Perez's behalf. Sometimes JUST US disgusts me.

D. New York Court Of Appeals Slated To Get A New Justice. Black Voters Lose only Court Of Appeals Voice, As Pataki Rejects Bundy-Smith's Attempt To Be Reappointed.

Amid a sure NYS Senate Vote to confirm his appointee, New York Governor George Pataki has nominated upstate Appellate Division Presiding Judge Eugene F. Pigott Jr to take the place of George Bundy Smith the courts only sitting black judge. Smith has been a friend to the defense bar, but I wouldn't grieve his loss at the expense of Pigott just yet. Pigott is a former civil plaintiff's guy and a former President of the Erie County Legal Aid Society. He has a very conservative/libertarian justice sitting right next to him in Judge Robert Smith who could pull him toward the defense on libertarian and constitutional issues.

If Elliot Spitzer (who right now seems destined to become our next Governor...can anyone even name who his Republican opponent is?) nominates the usual suspects to replace Chief Judge Kaye and the others on the more liberal end of the court, we could see a lot of 5-2 and 4-3 decisions in favor of liberty.

And now, an extra article for those that hung on until the end:

E. Now Just Talking About Government Secrets Is A Crime.

This Washington Post article is chilling. There has never been a "Government's Secrets Act" in US history, however our friends at Justice got a court to recognize one, even though Congress never passed one. (Remind me again... Bush is the one that wanted non-activist courts right?? How hypocritical.)

Some judge in the US District Court in Virginia (otherwise known as the Bush Rubber Stamp Court) agreed with the administration that it was a crime to have government "secrets" (no definition offered) and talk about them with others even if there was no intent to commit espionage.

Now while that may make some sense at first blush, it seems that it would mean no more reporting such as that done on the NSA Domestic Spying Case and could one even testify about it before the Congress? What about if a piece of information came to a reporter inadvertently, that showed the government was torturing American citizens??

There is a reason no court has ever held this law to read this way, even though it has been on the books since before 1920. There is a reason Congress has never passed a Government's Secrets act. It is patently unconstitutional. It is a complete violation of the First Amendment (you remember..."Congress shall enact no law...Abridging the freedom of speech, or of the press...")

In this time of abject government fear of terror, they let the terrorists win. Americans don't want a leader who fears our opponents so much that he would put our freedoms asunder. We want a leader who will cherish our freedoms and protect our freedoms in the face of attack by others. We would die for our freedom. Not our standard of life, our way of life. I know I would be willing to die for those principals.

I wonder if America will ever be America again.

A Few Decisions of Import To The Criminal Trial Lawyer: A Big Week For The Prosecution

Being on Vacation, I have had some extra time to read. I just ordered the e-edition of the New York Law Journal, not to be confused with its sister e-publication NYLJ.com. The edition I ordered is in fact the whole actual paper downloaded onto my computer. I read it using a "reader" called NewsStand reader. It seems you can get a lot of major newspapers and magazines this way. I am still playing with it, but so far-so good. A fast round up of interesting decisions is what now follows:

PROBABLE CAUSE FOR CAR STOP

As announced last week on our sister blawg That Lawyer Dude, one of my favorite judges has decided to resign from the bench. Judge Ken Gartner is resigning. I will miss appearing before the judge. It was always a good experience win lose or draw. He had a tremendous judicial demeanor, and was good natured on and off the bench. On behalf of myself and my staff at The Law Offices of Anthony J. Colleluori and Associates L.L.C. we wish him well. As a final goodbye, the judge leaves us with a case. In People v. Vonthaden Nassau County District Court Case No. 2494/04, the court was faced with a car stop based on an officer's decision that the car's window tint was too strong. Stating that the tint made it impossible to see into the car, he stopped the vehicle ostensibly to issue a summons. (In NY one cannot have a window tinted that blocks more than 30% of sunlight). On stopping the vehicle the officer observes that the driver has glassy eyes and a strong odor of Alcoholic beverage on his breath. He arrests the defendant and a Intoxilyzer 5000 finds a .19 BAC, more than 2x the legal limit of .08 BAC.

The defense attempted to suppress the findings and all statements noting that the officer had no special training in judging Window tint percentage and did not have a tint meter in his vehicle to aid him in determining the percentage of tinting. Relying on People v. Tompkins 6 Misc 3d 30 (App. Term 2d Dept. 2004)the defendant argued that since the police officer was not trained on detecting the proper amount of tinting on windows and did not have an appropriate tool to help him in such a determination, he would be unable to issue a ticket for the infraction.

The court did not agree. It cited the case of People v. Andeliz 3 Misc. 3d 384 (Sup. Ct. Kings County 2004) in which a court held that untrained police officers could still stop a car even if the officer could not ultimately sustain the charge.
Noting the difference in reviewing a case for proof beyond a reasonable doubt (as was the Tompkins court) and reviewing evidence for determining the legitimacy of a stop the court held that while the observation may not have been sufficient as proof beyond a reasonable doubt to prove a violation of the Vehicle and Traffic law was committed, a lesser standard is used for determining whether a stop is good. That standard is whether the tinting was sufficiently obvious enough, something a common sense observation could sustain. Noting that the officer said the window was so tinted he could not see through it, the court held that such a condition was sufficiently obvious enough that common sense could determine the appropriateness of the stop.

Practice Tip: Calling a Auto mechanic or even another observer, could have negated the police officer's testimony. While this was not a close case, all things being equal, the prosecution would not carry the day if the officer's testimony is properly challenged. The defendant has promised an appeal, I think the decision will probably stick though it seems that if you can't prove the violation, you are giving somewhat free reign to police to stop cars pretextually. Courts really need to be vigilant when faced with this type of testimony that the stop was in fact based on real evidence of a substantially obvious violation. Either way LI(C)TL says goodbye to Judge Gartner. Good Luck your Honor.

SORA REGISTRATION

In the Bronx Judge Megan Tallmer ruled that despite the fact that there were no allegations of sexual conduct, where children are placed in a situation where the could be sexually abused there is a constitutionally rational basis for requiring that the defendant be required to register as a sex offender.

In People v. Citron 7821/87 (Bronx Sup. Ct. 2006)the court heard a motion from five defendants whose cases seem to have little/nothing to do with a sex offense against the children who were unlawfully imprisoned or kidnapped in the cases. Noting that there are two other cases from lower courts on the issue which set different standards for applying the law, Judge Tallmer refused to get involved with setting a judicial standard for when to apply SORA to a defendant's case. Holding that treating kidnapping and unlawful imprisonment of a child a sex offense for the purpose of SORA is rationally related to the legitimate government objectives underling the reason for SORA.

The court's final "advice" to unhappy defendant's is to take it up with the state legislature or stop committing crimes that create a risk of sexual abuse. Some advice for the judge, stop trying to fit square pegs into round holes. If you want to expand SORA to include any crime against children, take it up with the Legislature. When appealed, I predict this case is going to be overturned, at least as to four of the five defendants.

DNA TESTING

In People v. Byrdsong 2001-05643 the Supreme Court Appellate Division Second Department held that a Defendant who pled guilty to Murder, are not entitled to test DNA that may show they are not the person who committed the crime. Writing for the majority, Judge Gloria Goldstein held that a defendant who pled guilty is not entitled to relief under Criminal Procedure Law section 440.30. She also suggested that the defendants address their complaints to the state legislature.

I am concerned that the court ignores two realities of criminal law: one is that people faced with possible death or life imprisonment will take the lesser of two evils and plead guilty to something they didn't do rather than chance a more terrible sentence. The second reality is that, Convicts have no lobby. The legislature could usually care less. It seems that the Court should care that, where there are issues, we get the right answer. Public policy demands we not keep the wrong people locked up for crimes they did not commit even if they swore that they did. It is a waste of taxpayers money. I truly wonder when I see decisions like this one, if anyone cares about that. No wonder the guy on the street doesn't understand the judicial system...Sometimes I don't either.

A Couple Of Sentencing Decisions Discussed over at That Lawyer Dude

I have been blogging about the inherent unfairness in the Federal Sentencing Guidelines for most white collar crimes based on the national over-reaction at our sister blog That Lawyer Dude. Today's post deals with a very thoughtful and correct decision by SDNY Judge Rakoff. You can catch the discussion by me, here, or an even better treatment over at Second Circuit Sentencing Blog here.

A Couple Of Sentencing Decisions Discussed over at That Lawyer Dude

I have been blogging about the inherent unfairness in the Federal Sentencing Guidelines for most white collar crimes based on the national over-reaction at our sister blog . Today's post deals with a very thoughtful and correct decision by SDNY Judge Rakoff. You can catch the discussion by me, here, or an even better treatment over at Second Circuit Sentencing Blog here.