Friday, October 3. 2008Poll the jury. Photo from website of U.S. District Court (W.D. Mi.).
Before going to trial with or without a jury, it is critical to have a good trial checklist. For jury trials, a critical part of that checklist is to have the jury polled in the event of an adverse jury verdict. Every criminal defendant has the right to require that s/he not be convicted unless his or her request is fulfilled to have each juror asked if the foreperson's verdict is the individual juror's verdict. See, e.g., Maloney v. Maryland, 17 Md. App. 609, 304 A.2d 260 (1973).
Last year, fellow Trial Lawyers College attendee Mark Bennett wrote of a mistrial that would have been missed without a polled jury: "This morning the Houston Chronicle had an article about a health care fraud jury trial in federal court in which, when the jury came back with a guilty verdict, defense lawyer Joel Androphy ... asked that the jury be polled. Judge Werlein polled the jury, and one woman said, 'That’s not my verdict.' Joel moved for a mistrial, which was granted. The accused will get another trial — not right away, probably, but, as Percy Foreman used to say, a continuance is as good as an acquittal, for as long as it lasts."
Commenting on Mark's posting, another fellow Trial Lawyers College attendee, David Tarrell, added this mini-victory from a jury polling: "[T]he lawyer asked for it, a juror hesitated and then said 'No, that’s not my verdict.' The defendant, who was obviously not cuffed during the trial, was now in handcuffs awaiting the verdict. The judge then sent the jury back and when they came back out, their verdict was unanimous to convict. The defense lawyer’s motion for a mistrial was overruled by the judge, but it was a 'slam dunk' on appeal, given the juror’s hesitation and the fact that she changed her mind only upon seeing the man cuffed between 2 deputies. It’s a lesson I’ll never forget, but I don’t think it’s requested often enough."
Why would a lawyer not have a jury polled in a criminal case? Yesterday, Maryland's intermediate appellate court affirmed a conviction where the defendant alleged inconsistent jury verdicts (the Court of Special Appeals found no inconsistency) where he was convicted of child abuse but acquitted on assault and fourth degree sex offense counts. At least from the way the appellate court recounts the entry of the jury verdict, no jury polling was requested (although the Deputy Clerk continued the practice of inserting archaic language into the proceeding: "Ladies and Gentlemen of the Jury, harken to your verdict as the Court hath recordeth it. Your Foreman sayeth..".): Continue reading "Poll the jury."Friday, September 26. 2008Flatulent defendant; albatross of domestic military patrols
Bill of Rights (From public domain.)
Today I argued a felony criminal appeal before the Fourth Circuit in Richmond, Virginia where I stayed overnight, so today's blog entry is brief, but very important.
As George Carlin said on his Occupation: Fool album from the early 1970's, "farts are fun". That is to say, when they are your own farts. Ever since becoming a father two and one-half years ago, the words fart, poop and booger flow freely from my tongue. It is one of the many pleasures of having children.
In any event, a West Virginia cop purportedly refused to let a drunk driving suspect use the bathroom, which apparently led to the the expulsion of methane/flatus. The cop claims the suspect fanned the flatulent fumes towards the cop, and claims that to be assault. Curiously, of course, one apparently would have to be very talented to successfully re-direct flatus odor by merely using one's hand to do the fanning. Kudos to the Kanawha County prosecutor's office for deciding to pass on the gas-passing assault charge, although the drunk driving charge remains. Thanks to Jonathan Turley for reporting on this (where does he find all these bizarre stories?).
Meanwhile, I would almost prefer to suffer through the above-described suspect's flatus for a few seconds than to have the albatross of domestic Army patrols, compliments of lame duck George Bush, II. (Thanks to a fellow listserv member for posting on this.) Would McCain or Obama do any differently? Jon Katz. Thursday, September 25. 2008Do you order from my client's restaurant menu, too?
- "I don't care what the contract says, it's my money that paid for your work and I am going to know from you what's going on in the case." - "He's my family. Blood is thicker than water, and I'm going to be involved in your discussions with my brother." - "My son has the mentality of a grade schooler. I know what is best for him."
What criminal defense lawyer can avoid clients' overbearing family members? Sure, I can refuse the potential client's case at the outset -- and have -- if someone else is paying for my services and if that someone else seems like s/he will blatantly disregard my standard contractual provision that says the non-client paying party has no rights under the retainer agreement and case any more than if s/he had paid anonymously. What happens, though, if such handwriting only appears on the wall in the very middle of the case? What happens if the client will not stand up to the overbearing relative or friend?
I love my work. However, if asked what most annoys me about my work, it often is overbearing friends and family members of my clients. Certainly, criminal clients and their close ones often are worried about their cases, and clients sometimes feel more comfortable including them in discussions (good luck explaining how such discussions can lose attorney-client privilege protection when third parties are present). However, so long as the lawyer is doing a good job, what justifies perverting concern into being outright overbearing and abrasive?
How to handle such problems? One approach is to use "I" statements, rather than "you" statements, for instance:
- "Mr. ________; I will be delighted to defend you were it not my concern for your brother who's paying your bills. I need to be effective for your case, and your brother is already laying unnecessary obstacles in the way to effectively defending you" v. "You spineless wimp. Why can't you stand up to your family. Maybe if you had stood up to the cops the night of your arrest and remained silent, you would not have this criminal case against you in the first place?"
- "I need my evening family weekend time to be refreshed to do battle for the client" v. "You are are so selfish. What nerve you have to call my cellphone repeatedly late Saturday night, insisting that I should not wait until Monday to set the prosecutor straight through reciting the Magna Carta verbatim?"
- I understand your frustration that I am holding private conversations with your brother on this, his court date. I am sure we will have some additional breaks where you will also be involved" v. "You WILL get out of my way now, and you WILL exercise at least a sliver of self control."
- "You have the right to vent. The question is, though, whom to vent to, how politely to vent, and how long and intensively to vent. I already agree with points A, C, and D about your child's case, so might we move forward?" v. "You want to vent? Go find a psychologist to do that, while I do the real lifting in your relative's case."
- "In all seriousness, [client's parent], I am not sure I am willing to take your son's new case. Just last month your spouse was monologuing on and on and on about nothing, to me, about this case" v. "How do you put up with such a selfish f--k of a spouse? He seems to have a mouth but no ears." Response from the parent to my "I" statement: "My spouse is ADHD; that's why he talks on and on."
- "I am not so sure I want to take your son's new case." Parent: "Why?" JK: "You repeatedly drone on and on when you call me, without even asking if I have been interrupted" [Note: I take the case and the parent is no obstacle, after the parent explains that such droning is ingrained in him since elementary school] v. "The nerve of you to come back to me after all your abuse I deflected from you on the last case."
I can count on one hand the number of potential clients I have refused to sign up due to ominous handwriting on the wall of irreconcileable differences with client's family members plus a client who does not seem likely to put his foot down. Some honest "I" statements and reasonable reassurances about the lawyer's time to talk with the family member and to prepare the case defense, sometimes can make the whole problem go away. Also, some inward- and soul- searching and reflection can help the lawyer learn how much of such exasperation is internally-rooted rather than externally exacerbated.
What do you do in such situations? Jon Katz Wednesday, September 24. 2008D.C. Jail is on lockdown status.
(Image from Bureau of Prisons' website).
The District of Columbia jail is one of the most unpleasant of the over twenty or so jails and prisons I have visited. My experience would be a picnic compared to what the inmates must endure.
Thanks to a fellow listerv member for getting the word out that the jail is on lockdown until 6 October, and that all legal visits need to be made through the staff entrance. Jon Katz. Tuesday, September 23. 2008Unreasonable suspicion.
Bill of Rights (From public domain.)
What made me become so skeptical of cops? Certainly, plenty of socializers tried to keep me and my school classmates enamored of cops from the earliest age. I played with cop and fireman toys. I watched Dragnet, Adam-12, Hawaii Five-O, Baretta, Columbo, Police Woman, Kojak, and plenty of other entertaining police shows that shined a favorable light on cops. When, at age five, I passed by a man being led away in handcuffs near the bank, a man nearby counseled me that "crime does not pay." Cops spoke to students for assemblies, and convicts only came to the Scared Straight presentation telling us crime does not pay (but apparently this was an effort to get parole release). Fortunately, I missed the D.A.R.E. program.
Then, I saw Al Pacino in 1973's Serpico, which was based on a true-life New York cop who got shot by his own when he refused to join them in police corruption: being paid off by drug dealers and skimming off the top from seized cash. It all made sense: Cops are mere humans and not superhumans. The buttons proclaiming that my town's "Fairfield Cops are Tops" were propaganda pieces that should instead have proclaimed "Preserve and Protect the Bill of Rights."
Too many jurors, prosecutors, judges, and members of the public at large unfairly cloak cops in shrouds of honesty that they do not deserve. They are mere humans, and most humans lie, and lie again. Certainly, as one cop told me when I complained to the nearby Whole Foods grocery store about why this store had armed cops when the stores in ritzier neighborhoods do not, he would risk taking a bullet meant for me even if I kept my healthfully skeptical view of cops and all people. But that does not make him any more honest than if he would not take that bullet.
Again and again, judges issue search and arrest warrants; and refuse to suppress stops, searches, seizures, and interviews of defendants, without carefully enough considering whether the cops are telling the truth and whether their information is sufficiently reliable or sketchy. Praised be lawyers Andrew Ferguson of the District of Columbia Public Defender Service and Damien Bernache of the Nassau/Suffolk Law Services Committee for their recent article in the American University Law Review entitled: "The 'High-Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis." The title speaks for itself. Thanks to the American University Law Review for publishing an article with this level of pro-Fourth Amendment teeth. Jon Katz Monday, September 22. 2008Defending online copyright infringement.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
On May 23, 2008, I blogged about bucking the trend of 94% of federal criminal prosecutions resulting in guilty pleas, by proceeding to a jury trial in Alexandria, Virginia, federal court for alleged criminal copyright infringement. Wired's blog -- parroting the assertion of the Recording Industry Association of America's news release -- describes my trial as the first federal trial for online criminal copyright infringement that primarily involved music; that does not mean that others have not entered guilty pleas for such accusations, because they have.
On September 19, 2008, I went to sentencing with my client for this online copyright infringement case. Fortunately, the judge varied substantially below the sentencing guidelines, saying that they are excessive for my client's case, after having addressed such factors as the sentences of co-conspirators that were much lower than my client's sentencing guidelines (of course, those who plead guilty get the opportunity for a lower offense score due to acceptance of responsibility) and the below-guidelines sentence of a federal criminal defendant in another conspiracy case who was sentenced earlier this month for the same type of conspiracy as well as choate online copyright infringement.
Although the sentencing judge did not agree with me, I vigorously contested the sentencing guidelines, including my assertion that the guidelines should look at the loss to the alleged victims, and not at retail price multiplied by the number of times the item was downloaded. I argued that even though the guidelines comments for copyright infringement say to use retail value, I said that they are but comments, and do not jibe with the theft guidelines to which the reader is further referenced for infringement exceeding $5,000, which theft guidelines discuss loss, not the value of the infringed items. On that topic, here is a relevant excerpt from my sentencing memorandum:
The seminal treatise on Copyright law acknowledges the difficulty in precisely calculating industry loss from infringement of copyrighted material:
“’Most such efforts [at gauging the extent of piracy] are either anecdotal or uncritically dependent on data provided by trade associations and other interested parties, since those engaged in pirating intellectual property have not been considerate enough to compile statistics for academic researchers.’ [Quoting from W. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization 6 (1995).] But a problem in methodology attaches here: to the extent that the pertinent figures rely on an assumption that current infringers would pay list price rather than cease using the pirated product, then they represent the very high end among a spectrum of possibilities. Particularly where high-priced software packages are at stake, the actual receipts of the proprietors – even in the unlikely event that piracy could be wholly obliterated –- might turn out to be far lower than those industry projections.”
Melville Nimmer & David Nimmer, Nimmer on Copyright, § 15.01[A][1] at 15-3.
Furthermore, a recent scholarly and in-depth professorial study that includes an analysis of relevant raw data, helps blunt the notion that industry loss can be gauged by such an oversimplistic approach as assigning a retail value to each allegedly infringed item multiplied by each download:
“The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.
F. Oberholzer-Gee and K. Strumpf, “The Effect of File Sharing on Record Sales – An Empirical Analysis,” Journal of Political Economy, 2007, vol. 115, no. 1 (this article is available in full at http://digital.music.cornell.edu/files/political_economy_filesharing.pdf (last visited September 17, 2008) (emphasis added).
If you are defending online copyright infringement cases, please let me know. Jon KatzWednesday, September 17. 2008 |
