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Thursday, May 26, 2011

Two Cases: One Lone Juror & 37,000 Prisoners

Two appeals affecting criminal cases made news this week.
In one, the US 9th Circuit reversed a conviction of the robbery murder defendant because a trial judge had removed a juror who was the lone holdout for innocence. The replacement made the guilt judgment unanimous. (Williams v. Cavasos ,filed May 23, 2011,)

Judge Reinhardt’s opinion begins this way:

“Consider two scenes:
Scene One
Juror #8: I just want to talk.
Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.
Juror #10: I want to ask you something: do you believe his story?
Juror #8: I don’t know whether I believe it or not — maybe I don’t.
Juror #7: So how come you vote not guilty?
Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two
Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .
Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two thirds of the jurors have tried to persuade — have actively tried to persuade . . . him that his current view is incorrect. . .
Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . . .
Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said. . . .
Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

"The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted.

"The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict.

"Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction.

"We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed.

"Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment.

"We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ."

This case reflects a practical truth about the criminal justice system:

Trial judges are under great pressure to prevent hung juries. Trials are expensive, the law has a strong preference for “finality”, and the truth is that almost all judges are biased in favor of conviction. The 11-1 for guilty hung jury is the bane of every prosecutor. The notion that one loony iconoclast can thwart justice is infuriating, to the judge, the D.A., and to the eleven who see clearly the same way.

Judges have tried to influence the verdict by exerting pressure on the hold out, using so-called “blockbuster” instructions, urging holdouts to bend to the majority vote. Appellate courts have decried the practice, but the pressure persists.

The facts of the case as detailed in the appellate opinion clearly support the appeals court conclusion that the trial judge violated the Sixth Amendment right to a jury trial. 

First, he violated the long established rule that in questioning deliberating jurors, the judge may not inquire which way the allegedly offending juror is inclined to vote. Second, he misinterpreted almost every statement the juror made to justify his conduct. For example, when the juror said that he in a murder case, he had to be “very convinced” beyond a reasonable doubt, the judge concluded that he was wrongly applying a higher standard than the prosecution was required to carry.

In the second case, the U.S. Supreme Court ordered California to reduce its prison population by about 37,000 inmates, finding that the prison overpopulation (@157,000 in facilities designed for half that number) resulted in violation of the Eighth Amendment (cruel and unusual punishment) because of grossly deficient medical and mental health care which was documented in lengthy hearings in the District Court.

The opinion was 5-4, with separate dissents by Scalia (joined by his mate, Thomas), and Alito (joined by his partner, CJ Roberts). The majority opinion was by Kennedy, joined by Ginzburg, Breyer, Sotomayor, and Kagan. (Brown v. Plata - filed May 23, 2011,)

Of course, this case has far reaching implications. The dissenters provide ample fodder for conservative law and order types to scream bloody murder (and rape and robbery, etc) citing the imminent fall of civilization when the prisons are emptied of violent criminals.

This is highly unlikely to occur. A sizeable number of inmates are there because of non-violent crimes: drugs and thefts with “strikes” that extended their sentences because they once suffered “serious” prior convictions.

 Some are suggesting out of state transfers or privatization of the prison system and Gov. Brown had suggested transfer to county jails (not L.A. County, which is in worse shape than the prisons, already so overcrowded that it has long been under scrutiny by the U.S. District Court).

The expensive alternative of upgrading medical and psychiatric facilities, and investing in rehabilitation programs in the institution and counseling and parole supervision on release, is not even on the table.

Nor is any serious adjustment of the disastrous sentencing system that results in disproportionately long mandatory minimum sentences and appointment to parole boards of citizens disinclined to release anybody from prisons.

Sunday, May 08, 2011

The Casablanca Lesson

Although released in 1942, "Casablanca" seems to speak to us today with insights to human behavior.

Remember the scene when Major Strasser orders Vichy puppet Captain Renault to close the "Cafe Americain" after the embarrassing singing of "La Marseillaise" drowned out the Germans songfest? 

Renault, who has been playing roulette all evening, follows the orders, finding an excuse.

"I’m shocked," he says. "There’s gambling going on here." He is then given his winnings.

Sixty-nine years later, we hear the Pakistan government echo Captain Renault after the U.S. Navy Seal Bin Laden compound raid.

And what is their response?

Reports from Pakistan are that the embarrassed "intelligence" leaders there have arrested many in Abbotabad and are conducting an "investigation" to determine how Bin Laden could have lived there.

In other words, they are following Captain Renault’s orders after the killing of Major Strasser:

"Round up the usual suspects."

And speaking of the usual suspects, the responses by Republicans have been just as predictable and ineffectual. 

First, at least from the more rational, a more or less grudging acknowledgement of President Obama’s win. 

For most, that was not enough.

There had to be a "but." 

The buttheads followed as the night the day: but he was only following what we started. Cheney, Rumsfeld, Rice, and others emerged to remind us that torture, er, tough interrogation, helped start the ball rolling.

Fun fact. Some American nuts and Islamic conspiracy theorists still choose to disbelieve the killing of Bin Laden on the order of the American president.

As Seth Myers said on SNL, a rare event when people deny that a black man is responsible for a killing.