In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (1) a rebuttable presumption, as a rule of evidence, that eyewitness testimony is inadmissible; or (2) allowing defendants to provide jurors with all the reasons why eyewitness testimony is not as reliable as they might think.

The first option is, frankly, stupid. But it’s the logical conclusion from the givens presented in his argument and those of the various amici, that eyewitness testimony is about as per se unreliable as it gets. If we can be forgiven a straw man here, it’s akin to the proscription against most hearsay. Hearsay is not permitted unless it’s deemed exceptionally reliable. So why not have the same rule for eyewitness testimony? Because hearsay is not prohibited because of its unreliability. It is prohibited because it cannot be tested, cross-examined, challenged. It’s a confrontation issue, not a reliability issue. Hearsay that is allowed comes in because it is so reliable that confrontation just isn’t an issue (in theory). Evidence is not precluded because it is unreliable. If something is unreliable, it is up to the other side to make sure the jury sees how unreliable it is.

As Justice Scalia implied during oral argument, unreliable eyewitness testimony is no different from any other unreliable evidence. But in practice, it is treated very differently. Sure, a judge might let the defense attorney cross-examine the witness on the lighting conditions, whether she had a gun in her face, and whatnot. And maybe the judge will let him make common-sense arguments to the jury in his closing about why that identification was wrong. But few if any will allow the defense to put on expert evidence demonstrating why this particular testimony might be wrong.

Eyewitness testimony is almost unique in this regard. Any other evidence the government might put on, the defense gets to put on its own evidence of why the government’s was wrong. Their expert says the stolen trade secret was worth a billion dollars? Your expert can testify why it was worth $12.98. Their witness says the bullet was fired from the apartment across the street? Your expert can show that it came from down the block and was deflected on striking the window. But if their witness testifies that she recognizes your client as the guy what done it, can you put on an expert to show that people of her race distinguish faces by looking at features that aren’t all that variable in people of the defendant’s race? Or that almost nobody with a gun shoved in their face in a dark alley for five seconds is going to form a clear memory of what the shover’s face looked like? Or that now, three years later, after countless retellings and waking nightmares and reassessments, the witness’s memory is nowhere near as accurate as it seems?

In most states, the answer is No. It’s either prohibited, or it’s up to the discretion of a trial judge, who’s likely to say no. (And the usual reason for prohibiting such testimony, irony of ironies, is that it’s such common knowledge that expert testimony is unnecessary.)

What Perry should have argued for, then, is to do exactly what Scalia suggested: treat eyewitness testimony like any other kind of testimony. Give defendants a chance to pry open those minds that snapped shut during the in-court I.D. Give defendants a chance to confront the evidence against them in a meaningful manner. When everyone in the world except for jurors, apparently, knows that eyewitness memory is godawful, give defendants the chance to educate them, at least to the extent that it applies to that particular case. While you’re at it, let jurors be instructed on factors affecting reliability if you like (as suggested by the majority opinion), but if you believe jury instructions make a difference one way or the other…

It’s not a Due Process issue. It’s a Confrontation issue. Allowing the defense to confront eyewitnesses and challenge their presumed accuracy is the issue. It’s not about shifting the fact-finding role to a pre-trial hearing, to assess things beyond the government’s process. Perry’s argument strikes us as not only stupid, but a waste of a perfectly good opportunity to have made some progress in this area. As it is, we may now be stuck in the status quo a few years longer than we might have been.

Thanks a lot.

Anyone who has served on a jury or tried a case knows that the American jury system is pretty stupid.  Don’t get us wrong — it is absolutely without a doubt a sacred institution designed to ensure justice better than any other system we know of — but it’s still stupid.

Think about it — You take a dozen people who probably don’t practice criminal law.  You tell them they’re going to be deciding someone’s guilt or innocence, and then you shove a few weeks of testimony and exhibits in front of them.  But you don’t tell them what the law is — what they’ll be applying — until after all the evidence is over.  You don’t tell them what they should have been listening for, until it’s too late.  You don’t let them ask questions of witnesses to clarify points they didn’t get.  When everything’s over, and it’s finally time to tell them the law they’re going to apply, you simply read it to them for a few hours.  You don’t let them take notes.  You don’t give them a copy of the law you just read them.  They are presumed to have memorized and applied correctly the intricate flowchart of criminal elements for each crime, definitions of legal jargon, and all the other attendant instructions.  If they ask for clarification later, you simply read the instruction to them again.

And that’s not even half of it.  On top of all that, you make them do the judge’s job, in addition to their own.

The jury’s job is to make findings of fact.  The judge’s job is to make rulings of law.  The jury’s job is very important — their job is to decide on the official version of the facts.  The court cannot do anything until the facts are established, and then it can take the necessary action — whether it be punishing the guilty or freeing the not guilty.  But the determination of “guilty” or “not guilty” is a legal conclusion reached by analyzing the official version of the facts.  And in our system, we tell the jury to make that ruling of law.

In fact, those who were not in that jury room will only ever see the ultimate legal conclusion, and will only be able to speculate as to what the actual facts were on which that conclusion was based.  Based on studies of jurors (and anecdotal discussions after many trials), it appears that a large number of verdicts are based on flawed application of the law to the facts — or even without any such application whatsoever.  People are found guilty of crimes where jurors did not think essential elements had been proven beyond a reasonable doubt.  People are found not guilty of crimes where the jurors were actually persuaded of the necessary elements.  Jurors hang, or screw up, because they don’t understand what they’re doing.

The system is stupid, and almost guarantees injustice.

Fortunately, the problems are easy to fix.

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One simple fix, which resolves quite a few of these inanities, would involve little more than changing the verdict sheet.

When deliberating, a jury is given a verdict sheet to fill out.  Basically, it lists each of the crimes charged in the indictment (or added later as “lesser-included offenses” when the prosecution realized it was going to lose the counts it actually charged).  For each count listed, the jury checks off whether the defendant is guilty or not guilty of that offense.  In an attempt to clarify to the jury what they are deciding, some jurisdictions have them check off whether the crime was “proven” or “not proven,” but it’s still the same thing.

The jury had no guidance, beyond orally recited instructions after the conclusion of the case, on how to reach the conclusion of guilt or non-guilt.  The jury did not have a written list of the elements necessary to establish each crime.  Nobody will ever know if they really thought each and every element was proven, or if four out of five was close enough.  Nobody will ever know if they applied the right elements to each crime.  The jurors will have to wrack their brains to remember the full list of elements the prosecution needed to prove, and try to figure out if the evidence at trial actually proved it beyond a reasonable doubt.  Their job of fact-finding is already too hard, forget about the judicial role of concluding whether the facts equal guilt.

But what if the verdict sheet itself simply listed all the elements that the prosecution had to prove?  And simply asked whether each particular fact had been proven or not proven beyond a reasonable doubt?

The elements wouldn’t even have to be grouped by charge.  An element common to multiple charges would only have to be listed once.

The jury would not have to strain to remember what the judge read to them two hours and fourteen minutes into a three-hour instruction.  The elements they would be deciding would be right there in front of them.  All they’d have to do is figure out whether each one had been proven beyond a reasonable doubt.

Once the jury had reached a unanimous verdict as to each element, the judge would then be tasked with drawing the appropriate legal conclusions from the official facts.

Gone would be the freakshow of internally-inconsistent verdicts.  Gone would be the concerns of verdicts not matching what the jurors actually believed.  Gone would be the need to speculate — at sentencing, on appeal — as to what the jurors did and did not believe.  Most importantly, gone would be the jurors’ struggle to do their job, leaving only the good and proper struggle of figuring out whether the prosecution had done its job.

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If we wanted to be really nice to our jurors, we might even give them these verdict sheets at the outset, or a modified version without the “proven” and “not proven” boxes, so they’d know what they were supposed to have been listening for throughout all that testimony.

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And you know what, if the lame-ass prosecutor still wants his lesser-included offenses, then they’re still right there in the element list.  They can still salvage their overcharged Murder 1 with a disorderly conduct, if need be.

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Isn’t this something we should be doing?

Is there any reason not to?

Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.”  In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online.  We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.

Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed.  Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it.  Stranger things have happened, though we can’t think of any offhand.

Be that as it may, the internet is forever, and it seems to get read from time to time.  Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared.  That’s when we seem to field calls about it, anyway.

And that’s what happened earlier this week.  We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time).  When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there.  (You can read the resulting article here.)

We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there.  Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.

But on second thought, we actually said some new stuff in this interview.  Some new policy considerations came to mind.  The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us.  She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it.  It was a pretty skillful interview.  Pity none of the good stuff made it into the article.  We blame the editors, of course.

So for the benefit of those who have bothered to read this far, here’s the good stuff:

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We don’t want jurors going out and gathering evidence that wasn’t presented at trial.  The trial is a tool for testing evidence, in order to determine whether the government has proven its case or not.  The burden is on the state to do the proving.  If the state doesn’t do its job, then the state doesn’t get to take away the defendant’s life, freedom, or money.  The state puts on its evidence, and the defense gets to cross-examine it.  The evidence is only admissible in the first place if it meets certain requisites of basic reliability.  Then the defense cross-examination is there to test that reliability and credibility even further.  For jurors to go out and gather evidence on their own defeats the whole purpose of a trial.  The evidence they gather is not subjected to any evidentiary rules, and is not tested by any cross-examination.  It may be perfectly unreliable, it may be less than credible.  But even if it is perfectly truthful it’s still wrong, because the state has the burden, not the jurors.

Remember, in a criminal trial, the jury’s job is not to figure out what happened.  It is not.  The jury’s job is to determine whether the prosecution met its burden, and nothing else.  It’s perfectly formulaic: if the prosecution proved elements A B & C beyond a reasonable doubt, then the defendant is guilty of crime X.  If the prosecution failed to prove A B or C beyond a reasonable doubt, then the defendant is not guilty.  It has nothing to do with whether or not the defendant committed the crime.  It’s only about whether the prosecution could prove it.

If the jurors are out there gathering additional evidence, they’re missing the whole point of their function.  They’re trying to figure out what the facts of this case really are, acting as their own witnesses, instead of assessing whether the state did its job right.  Might as well not bother having a trial, if that’s going to be happening.

But gathering evidence is different from gathering general knowledge.

Jurors should not be allowed to investigate whether person Z did act X at location C.  But there’s nothing wrong with jurors knowing on their own that location C happens to be at the corner of 23rd and Elm.  That’s just basic background knowledge.

Likewise, we’d have no problem with a juror, who happens to be a doctor, knowing that the word “ecchymosis” refers to a kind of bruise where blood leaks under the epidermis.  We’d have no problem with jurors understanding that clouds are big fluffy white things that hang in the sky and sometimes bring rain.  We’d have no problem with jurors knowing the meaning of the phrase “ordered a pizza.”  It’s all just background knowledge.

Where we go wrong is when a non-doctor juror might not have known what “ecchymosis” means.  The juror might, or might not.  But most people probably don’t.  What now?

The rule has always been that the definition has to come out on the stand, subject to the same evidentiary rules of reliability and credibility as apply to actual evidence.  We’re not talking about evidence, but mere general information, but jurors can’t get that information unless it’s treated like evidence.  If they already know the information, fine.  But they can’t go learning it on their own.  If they didn’t already know it, they have to get the information from a witness.

Before 2001 or so, this wasn’t such a bad rule.  Most jurors would have to go significantly out of their way to look up information they didn’t already have.  Specialized dictionaries weren’t commonly available, even at many public libraries.  The internet hadn’t yet evolved to a point where one could find accurate information on pretty much anything.  The internet’s information was still pretty spotty back then.  Books were still the way to go.  And even if one could find a resource in a library, it was time-consuming and you sort of had to know what you were looking for to begin with.  It was more akin to investigating for evidence than relying on general common background information.

But once the internet really took off, it quickly became second-nature for the vast majority of people to use it to look stuff up.  As dial-up modems gave way to cable and T1 connections, and as wireless internet evolved to a handheld browser in practically every cell phone, looking stuff up became essentially costless, instantaneous, and ubiquitous.  As the scope and accuracy of the resources online grew and grew, the accuracy and reliability of the information out there became just as good as that available to specialists.

Being able to look up information — even specialized information — is now as second-nature as breathing to a large chunk of the population.  It’s only going to get more so.

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Again, this is not the same thing as looking up evidence that the government has to prove.  The government does not have to prove that a detached retina is what happens when the retina separates from the back of the eyeball, and that it can be caused by such things as X Y or Z.  The government has to prove that the defendant injured the victim and caused the victim’s retina to detach.

So if a juror goes online and starts reading news accounts detailing facts about how the defendant injured the victim, and how that injury caused that victim’s retina to become detached?  Well, that’s flatly wrong.  Not allowed.  Defeats the purpose.

But if a juror goes online to find out what the phrase “detached retina” means, what kinds of things are known to cause it, and stuff like that?  That’s just background knowledge.  There’s nothing wrong with it.

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When we wrote that original article a couple of years ago, we said that the rule ought to be “data that is commonly available is treated as if it were common knowledge.”

That’s fine, but needs to be limited.  Data that is evidentiary can and must be precluded from independent juror investigation.  But anything that is not a specific fact about what this defendant did?  That’s not evidence.  It’s information.  And jurors should be allowed to look it up.

They’re going to anyway.  It’s as natural as breathing.  It’s an unthinking, automatic response.  As we told the reporter, these days everyone is a researcher.  You don’t know a fact, you look it up.  Instantly.  You’ve learned to assess the reliable sources and ignore the gossip and noise.

That’s what we expect jurors to be able to do at trial, when evaluating evidence.

It’s called “common sense.”

It’s time for the courts to start using it.

Plenty of us are familiar with the basic skills of cross-examination: Always lead, Don’t ask that one last question that lets the witness deny the conclusion you want to draw, Don’t ask a question if you’re not pretty sure of the answer, Don’t let the witness explain, Take it one fact at a time, Have a goal, etc.  They’re good rules to follow in pretty much every case.  But they’re not really a blueprint to follow for crafting a useful cross.  Every case is different, and each witness requires a different strategy.

One of the most challenging types of cross-examination comes in the he-said/she-said situation.  That’s not just domestic disputes, but any situation where there are only two people who really know what happened, and one of them is testifying against you.  Maybe it’s a purported victim, telling a story about a date rape that your client insists was consensual.  Maybe you’re a prosecutor in an undercover buy-and-bust, and the defendant is testifying to a story completely different from what your undercover is saying.  It happens in all kinds of cases, to all kinds of lawyers.

The he-said/she-said is especially tough when the other side’s witness is telling a cogent story that makes sense on its face.  Taken at face value, it rings true — though that doesn’t mean it is true.  A false story can be concocted out of pretty much any factual situation, and a lie that fits a juror’s worldview can be more believable than the truth.  A lying witness has lived just like anyone else, and has just as many experiences to test the believability of their stories against.  By the time the witness is testifying, there’s been plenty of opportunity to hone and perfect that story.  (And, of course, they might just be the one telling the truth, or at least the version closest to it.)  It’s hard to even prepare for such a cross.

If all you’ve got to challenge them with is your own side of the story, you’re not going to have a very effective cross-examination.  Q: “Are you telling this jury that my client’s story is wrong?” A: “Yup” — that’s not how to win a case.  But lots of the time, that is all you’ve got.  What can you do?

Well, when all else fails, there are three simple steps to a basic but effective cross-examination here.  When all else fails, and you’ve got nothing else to go with, you can always do these three things.  It may not guarantee you a victory, but if you do these three things, you will have at the very least done a workmanlike job of it.  And often enough, it gets results.

STEP 1: LOCK IN THE STORY

The first thing you do is get a lock on the witness’s own testimony.  On direct, you’ll want to take copious notes, with your thoughts

and stars and smiley faces or whatever on the side, whatever works for you.  Now, on cross, you’re going to walk that witness through everything they just said.

Don’t add anything new.  Don’t explore a single thing.  Just Q: “Is it your story that…” A: “Yes.” Q: “And you’re telling us that…” A: “Yes.”  etc.

It’s good to use characterizing words like “story” as opposed to “testimony,” to highlight that this is not fact, but merely the witness’s concoction.  Don’t overdo it, though.  But there’s no reason why your questions should ever give credence to anything the witness has said.

What you’re doing here is locking the witness into their story, so they cannot wiggle out of it later on.  They’ll have stated each thing as fact, twice, before this same jury.

You’re doing that because the goal of this cross-examination is to do a little lawyerly jiu-jitsu.  You’re taking the inherent weakness of the he-said/she-said situation, and making it work for you.  You’ve got two competing versions of what happened.  So it’s all going to come down to credibility.  Who is the jury going to believe more?  Your cross-examination here is designed to give that jury every reason not to believe that witness.

So lock them into their story.  You don’t want them to be able to change it later, or say they were mistaken.  The witness will almost always let you do this to them.  And because they don’t know where you’re going with this — especially for the ones who were making it up — it can start to throw them off balance a little.  If that happens, great.  Keep them that way.

STEP 2: ATTACK THEIR CREDIBILITY

So far, you probably didn’t need to be on the attack.  You may well have chosen to be perfectly amiable, if only to lure the witness into a false sense of security.  And you may choose to remain amiable, whatever works.  But now the witness is definitely going to sense that things have changed, because now you’re going to be attacking their credibility.

You may not have a lot to work with.  If you’re a prosecutor, all you know about the witness may be what’s on their rap sheet.  If you’re a defense attorney, you may know even less about the witness.  It doesn’t matter, though.  Use what you’ve got.  Anything from the past that the judge will let you use, use it.  No need to get emotional about it — just a matter-of-fact recitation of the fact, followed by a “yes” from the witness, is all you need.  All you’re trying to do is put the germ of a thought in the jury’s heads.  All you want here is for the jury to start thinking hey, there’s more than meets the eye here.  Get them ready to at least be receptive to the idea that this person might not be the most honorable one they’ve seen.

Because once this background has been attacked, and you’ve raised the possibility that this person might not have been completely honorable in the past, you now want to get the jury considering that perhaps this witness wasn’t being completely straight with them here in the present.

If you’re lucky, the witness’s story has an obvious hole in it, or an internal inconsistency.  It happens, so make sure you’re listening for it on direct.  If you’ve spotted a glaring problem like this, now is the time to pounce on it.  Go to it.  You’ve already gotten the witness to reaffirm the very statements at issue, so your work here should be fairly straightforward.  Just don’t, do not, ask the witness to explain.  Because they will.  Don’t ask rhetorical questions.  Don’t get cute.  That just gives the witness a chance to repair the problem.  (And often enough, it’ll be something you don’t want to go into here, but would rather save for closing argument.  Use your own judgment.)

But you’re not always going to be so lucky.  You’re going to have to work at finding inconsistencies.  Fortunately, there are ways of doing it.

As we’re just giving the rudimentary when-all-else-fails steps here, the rudimentary when-all-else-fails method is to break down the conclusions.

Almost every fact in a given witness’s testimony is really a conclusion.  ”We left at 9 p.m.” is not a fact, but a conclusion.  How does the witness know they left at 9?  ”I looked at a clock as we left.”  That’s still a conclusion.  Where was the clock?  ”It was in the hall.”  Still a conclusion.  On the left or on the right?  ”It was on the right.”  Digital or analog?  ”It had hands.”  How long did you look at it?  ”A few seconds.”  Where were the hands pointing?  ”The big hand was on the nine, and the little hand was on the twelve.”  Exactly? “It may have been a little off.”  One minute off?  ”Sure.”  Two minutes off? “Maybe.”  Three minutes off?  ”I don’t know.”  You were walking out side by side, you said?  ”Yes.”  And he was on your left, you said?  ”Yes.”  So you turned your head away from him to look at the clock as you left?  ”Yes.”

Depending on the rest of the facts, there’s plenty of closing ammunition in there.  They were so sure of the time on direct, but now they aren’t, and maybe every minute counts in this case or maybe it doesn’t, but they’re not so sure any more.  They looked away from their companion for a good few seconds to make a note of the time, but who does that, and if there’s no testimony about any good reason for doing so then it might not ring true.

Similarly, what about a police officer’s testimony that, when he encountered the defendant in the building lobby, he saw the defendant drop that bag of heroin he’s now charged with possessing?  Seems like a straightforward fact.  But it’s really a conclusion.  Where was the defendant standing?  ”Next to the staircase.”  Where were his hands when you first saw him?  ”In his pockets.”  What hand do you say he dropped the bag with?  ”His right hand.”  Did you see his right hand come out of the pocket?  ”Yes.”  It was closed, right?  ”Yes.”  What did he do with his hand?  ”He put his hand behind the railing and dropped the bag.”  His hand was behind the railing?  ”Yes.”  The railing is a solid wall?  ”Yes.”  When his hand came back up, it was still closed?  ”Yes.”  You did not see it open?  ”No.”  You didn’t recover anything from his hand?  ”No.”

By breaking it down into little facts, you might here be able to argue that the officer didn’t really see what he claims to have seen.  He just drew a conclusion that the guy dropped the drugs there.  But for all he knows, the drugs had already been there.

Breaking down the conclusions — and every story is made up of conclusions — is also far and away the best method of catching a liar.  Liars tend to invent only a surface story.  Nobody has the time or the inclination to invent every little detail about an event.  Even the most verbose novelists only give you a veneer, a summary of what they’re depicting.  The rest of the details are left to the listener’s own imagination.

But a liar is going to invent facts to fill the gaps, if you ask them to.  An honest person might not have noticed, but the fabricator won’t often say that.  They’ll give you a fact.  And they won’t have prepared for it.  They won’t have thought this one through.  (If they try to, don’t let them.  Interrupt long pauses with something like “please answer my question” to highlight to the jury that they’re taking their time to come up with an answer — something you can later argue is not commonly done by truth tellers.)  The more facts you can elicit from a liar, the more likely they are to contradict themselves or other evidence.  They’re going to give you gold.  Make sure you’re paying attention, so you can spot it.

Take your time with this step.  Have fun with it.  Use the witness’s own story to undermine their credibility.  It can be very effective.  If you’ve got nothing else, you’ve always got their own testimony.

STEP THREE: HIGH CONTRAST

You’ll wind up this cross-examination by making it painfully clear to the jury that there are two incompatible versions of the facts here, and they’re going to have to pick one.  After you close on the nuggets you gleaned in Step 2, you want the choice to be obvious that they should believe your version, not this witness’s version.  So you need to point out specifically where they differ.

So walk the witness now through your side of the story.  Get them to categorically deny every single fact where their story is different.  ”So you’re saying it’s not true that Susan gave you a beer?”  ”So Bill didn’t have any awkwardness getting his penis into your vagina, and you didn’t help put it in?”  ”So you never met anybody even resembling that undercover?”

Be sure to break it down here, too.  You want as many different contradictions as possible.  You don’t want the other side to be able to explain this away as normal human error, just remembering little details wrong.  You want it perfectly clear that this witness’s story is simply incompatible with your story.  There is no way they can both be true.  All your work so far is going to be for nothing if you fail with this step.

But of all the steps, it’s the easiest.  Just walk them through it, and get them to deny as much as possible.

-=-=-=-=-

If you’ve got absolutely nothing else to go on, you can always do these three simple things.  And if you’re paying attention, and you do them right, you will have performed an effective cross.

At the very least, you’re going to be able to argue to the jury that they’re going to have to pick one story or the other.  You’ll be able to argue that they should not believe the other side’s witness.  You’ll be able to argue why your facts are the right ones.

For a situation where you’ve got nothing else to work with, that’s not half bad.

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth -- that's "Truth" with a capital "T" -- is not the goal.  It's preferable for the official facts to be as close to the Truth as possible, but even with video cameras and the testimony of a thousand angels, the real Truth is always unknowable.  At least one of the necessary facts is going to deal with what an individual was thinking at the time.  That can only ever be inferred.]

Interestingly, however, jury nullification has little to do with findings of fact, and everything to do with drawing legal conclusions from those findings of fact.  Jurors offer conclusions inconsistent with their assessment of the facts only when they are given an opportunity to do so.

The question is, why do we give jurors that opportunity in the first place?

The only purpose of a jury is to figure out whether A, B and C happened.  The problem arises when we ask them to draw the conclusion of whether the defendant is Guilty of crime X.  That’s where the nullification happens.

Jurors are told to go back into the room and figure out if A, B and C were proven beyond a reasonable doubt.  But they don’t vote on that.  They only vote on the conclusion — whether the defendant is guilty or not.

If you want to get rid of jury nullification, the simple answer is to limit the jury’s role to match its purpose.  Make the jurors vote on whether A was proven beyond a reasonable doubt, and B, and C… …and that’s it.  Let the judge do the math and determine whether the facts decided by the jury constitute a crime or not.

This would eliminate inconsistent verdicts, as well.  It can be a huge problem when a jury comes back with a Guilty on count 1 of the indictment, and a Not Guilty on count 2, when both counts shared one or more of the same elements.  Often this will happen when the jury is throwing a bone to the prosecution, acquitting what they think is the more serious charge and convicting on what they think is the lesser one (not always accurately).  That’s injustice to both sides, no matter which way you look at it, but it’s a common example of jurors trying to be fair.

If they were merely voting on whether certain facts were proven or not, and one of those facts is common to multiple counts, then the jury would only have to vote on that fact once.

So, for example, let’s say there’s an indictment charging crime X, which consists of elements A, B and C; and also crime Y, which consists of elements B, C and D.  The jury should only be given a simple form that looks like this:

And nothing more.  If a particular element requires other things to be proven (as is fairly common), each of those underlying facts should be listed, and not the general one that encompasses them.  (So if element D is only proven if the jury can find E, F and G, then D should not be listed, but E, F and G should be.)

It is not rocket science to then determine whether the jury has found the defendant to have committed any particular crime, without asking them to apply any law.  Just let them come up with the official facts, and let the judge apply the law.

Now you’re not hoping unrealistically that the jurors can remember all the instructions given to them orally, after the evidence was in, and apply the various formulas of the law perfectly.  That’s not their job, anyway.  Now you can reasonably expect the jurors to simply tell you whether facts were proven or not, which is all they’re supposed to do in the first place.

And now you’re not risking as much nullification — a juror who wants to say “Guilty” despite a lack of evidence isn’t going to be able to do so quite as easily.  Ditto for one who wants to say “Not Guilty” when they can’t deny that the elements really had been proven.

And you eliminate any chance of an inconsistent verdict.

So how come we don’t do this now?  Is there something wrong with this approach?  If so, we’d be glad to hear it.

The news is full of reports today about the hung jury in the Blagojevich trial — they found the governor guilty of a single count of lying to federal agents something like five years ago, and hung 11-1 in favor of conviction on the remaining counts.  All kinds of pontificators are pontificating about why this happened.  Scott Turow, for example, says it’s because corporations have too much freedom to contribute to political campaigns, so bribery becomes perceived as the norm. 

That’s a bit of a stretch.  It’s hardly likely that the jurors were considering such things as the corrupting consequences of the extension of First Amendment protections to corporate campaign contributions.  Like most commentors, Turow seems to be slapping his own politics on top of a more prosaic observation — that to some, the governor’s actions just don’t seem criminal.  This observation, without all the other nonsense attached to it, was actually quite astute.  According to the jury foreman, the holdout appears to have thought Blagojevich’s actions were “just talk,” and nothing criminal.

From what we’ve seen in the newspapers, that’s not an insane perspective here.  It sure reads as if Blagojevich was just thinking out loud sometimes, or bouncing stupid ideas off people that never got carried out.  And the forman says the other jurors respected the holdout’s right to her position here.  It doesn’t seem like an unprincipled, irrational vote.

But other reports highlight a different take on the holdout’s position.  Another juror is on record saying that the holdout wanted more clear-cut evidence, tantamount to a videotape of a murder, before she’d ever have convicted.  And if, as is likely, the holdout was Jo Ann Chiakulas, then she had already made up her mind weeks beforehand that the governor was innocent.

Both takes ring true to us, and are not mutually exclusive.  It seems probable that the holdout had decided weeks ago, after the close of the prosecution’s case, that the government hadn’t given her that whatever-it-is she would have needed to vote to convict.  Jurors vote to acquit all the time, in even the most solid rock-crusher cases, and the most common reason given is that “there just wasn’t enough evidence,” or they “needed more.” 

Jurors can never articulate what “more” they would have needed.  That’s because this is humanspeak for ”you could never have convinced me to convict.”  It’s a rationalization of a gut feeling. 

It can happen for all kinds of reasons — perhaps the criminal statute is seen as unjust, perhaps the defendant is sympathetic, perhaps the juror just doesn’t want to see another young black man go to prison, perhaps the alleged conduct is just not seen as criminal regardless of the law.  All of these are forms of jury nullification. 

When a juror says “there wasn’t enough,” in a seemingly strong case, that’s code for jury nullification.

-=-=-=-=-

As we wrote last year, this seems to be happening more and more lately.  There has been a massive rise in the number of hung juries in recent years, leading some to call for majority-vote verdicts instead of requiring unanimity.  That’s not the solution.  The solution is to realize why you get holdouts, and try to adapt your jury selection accordingly.  The burden falls to the prosecutors to try to keep them off — especially in stronger cases where the defense might actively desire a holdout (as we once heard Brendan Sullivan say, “the government needs all twelve… I only need one”).  That’s not always true though — once when we were a young prosecutor we won a case because of a holdout for conviction (who everyone else thought we were nuts not to have excluded) who wound up doing a 12 Angry Men in reverse and convincing the other 11 to convict over several days of deliberations.

-=-=-=-=-

So what does this mean for the inevitable retrial?  Does it signify that Blagojevich is probably going to get convicted the second time around, because the odds of another holdout are slim to none?  Should he cut his losses and take a plea, hoping for more lenity than he’d get after a second trial?  Not at all.

Each jury is separate and unique, just like a coin toss.  Just because the last toss of the coin was heads, that doesn’t change the 50-50 odds of the next toss.  You never know what you’re going to get with a jury.  We have zero faith in jury consultants and those who think they can pick ‘em — all jury prognostication is bunk.  You never know what you got until it’s all over.  You can try to keep out the most obvious potential difficult personalities, you can try to identify those who are likely to nullify, but you can never tell with most people.  People are just too complex.  Apart from the most obvious, you’ll never know, and only a fool believes he can.

So the odds of success next time around are just as good as they were this time around.  Presumably, both sides are going to try to make their cases better, but who knows how well they can?

Who knows, maybe next time it’ll be 11-1 to acquit?  Anything can happen.

Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t read those instructions to the jury until after all the evidence is in and both sides have summed up.  So the whole time the jury is listening to the evidence, they don’t know what they’re supposed to be listening for.  The judge never told them what the elements are that the prosecution has to prove.  And woe unto any lawyer who tries to do the judge’s job and instruct the jury beforehand.  No, the jurors now have to go back in their memory and figure out if the evidence they remember satisfies each of the elements.

This is all the more difficult in that most jurors don’t get to take notes.  They’re just presumed to have remembered everything that was said, which of course is impossible.  And they can’t take notes during the instructions, either.  They’re just presumed to remember all that mumbo-jumbo as well.  Don’t imagine for a moment that they do.

-=-=-=-=-

It’s as if we stick 12 good citizens in a box and tell them another human being’s fate rests in their hands.  If they do the wrong thing, somebody is going to suffer severe, life-changing harm.  An innocent person could lose his life or his liberty.  A victim could be unvindicated.  A dangerous person could go free to harm again.  It’s a massive responsibility to do the right thing. 

They don’t know any of the relevant facts, and were in fact specifically chosen because they don’t know anything about the case.  We’re going to give them a whole bunch of facts with which to make that determination, but some of the testimony might be wrong.  It’s up to them to figure out what to believe.

Some of the stuff they’re going to hear will be very important.  Some won’t be.  We’re not going to tell them which is which.

They won’t know until it’s all over what they should have been listening for.  And we won’t let them take notes to jog their memory.

They will be given the testimony and instructions in the absolute worst possible way, by spoken word.  They cannot read the instructions themselves.  They cannot read the minutes of the testimony themselves.  It can only be read to them.  Even if they are actively listening — a rare event to begin with — humans simply do not recall much of what is merely spoken to them.  And what they do recall, people tend to get wrong, filling in their own words and meanings.

So we put all the pressure on our juries, then make their job far more difficult than it has to be.

Is it any wonder that experienced lawyers say a jury trial is a crapshoot?  Nobody ever knows what a jury is going to do — if they say they do, they’re deluded or lying.  Nobody knows what a jury is going to do, in large part, because the jury doesn’t even know what it’s supposed to do.

-=-=-=-=-

The solution is simple.  Give the jurors a written list of elements, and what they mean, before the trial starts.  Let them take notes.  Let them bring the transcript with them into the jury room.  Let them bring the instructions with them into the jury room.  There is no rational reason not to do any of this.  The only reason we don’t now is because of this arrogant “they can’t be trusted with it” attitude, that supposes jurors would interpret things wrong, or stop paying attention to read or write stuff down.  This is contrary to real life, where being able to re-read and digest written words improves accurate understanding, and where taking notes increases attention and retention.

The solution is simple.  Folks have been proposing modest fixes like this for years.  And yet nothing changes.  We in the law tend too much towards the “it was good enough for us back in the day, it’s good enough for us now.”  We forget that it never was “good enough,” and it can certainly be better.

In the meantime, our jury system will continue to defeat the justice it is supposed to serve.

—–

[P.S. No, we didn't just lose a trial.  We haven't lost a hearing or a trial since 1999.  This is a legitimate gripe, not sour grapes.]

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

-=-=-=-=-

So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was what might happen in the event that they should wind up being deadlocked. The judge totally forced the deadlock language onto the record.

All the judge had to say was “it’s none of your business what decision I may or may not make based on your decision. But I can’t do my job until you’ve done yours. So if that hypothetical query was your only question, please get back to work.”

-=-=-=-=-

After the mistrial, Lett had to go through a whole second trial. The prosecutors had now seen the defense’s cards, knew what arguments the defense would make, and presumably did a better job of shutting them down, because this time the jury had no problem finding Lett guilty.

Lett appealed, on Double Jeopardy grounds. This was in Michigan, and the state’s supreme court said no, the judge did everything right under Perez.

Lett petitioned the federal court, which granted habeas on the grounds that the trial court did “fuck-all” to ensure that the jury was really deadlocked. (Ed.: Citation needed again.) The Sixth Circuit agreed.

So Michigan appealed to the Supreme Court, and that gets us to this morning’s arguments.

-=-=-=-=-

It was quite an argument. Neither lawyer seemed to have real mastery of the issues, and so they were wide open to attack from opposing justices. And so sympathetic justices would throw out lifelines. It was like a legal game of catch-and-release.

Justice Sotomayor kicked things off by wondering out loud how anyone could find “that the court was acting deliberately, responsibly, and not precipitously.” Michigan’s lawyer replied that “you have to look at the totality of the circumstances” — weasel words, in our experience, used when the facts are inconvenient. The circumstances were that you could sort of interpret that the jurors were “acrimonious” and you could sort of interpret that they had been deadlocked.

This was not particularly convincing. So Justice Ginsburg fed the state’s lawyer an argument, asking “are you urging that, because the trial court judge was there on the spot, saw the jury, worked with the jury, that that’s something that deserves a special measure of respect?” The grateful lawyer — as everyone seems to do when lobbed a softball like this — replied, “Absolutely.”

That was beside the point, of course. The issue was whether the trial judge had taken reasonable steps to ensure that a verdict could not be reached. Justice Kennedy got everyone back on track, gently suggesting that the judge might have excused the jurors and then asked the lawyers whether they thought a mistrial was appropriate. Getting the input of both counsel is typically considered part of the judge’s weighing of the situation in these matters, after all.

After some back-and-forth, Justice Breyer pointed out that of all the cases where a mistrial was declared, very very few are going to have facts like these. “What do you want me to read,” he asked, “to see that this is not an extreme case that counts as an abuse of the judge’s discretion?” During a long colloquy, Michigan’s lawyer never was able to answer the question. He started to admit that it’s pretty rare, when Scalia jumped to his rescue, pointing out that it’s not the state’s burden to prove it’s normal, but rather it’s the defendant’s burden to prove it’s abnormal.

It was clear that Scalia was irritated at the lawyer for not responding to these questions as he could have. But he was still on Michigan’s side. That did not seem to be the case for the other justices who spoke up. It was pretty obvious the rest of them thought the judge hadn’t done enough.

Scalia was waiting to pounce on the defendant’s lawyer, to ask how they’d met their burden of proof to show that there was not a deadlocked jury. Counsel didn’t do a great job with this, trying to somehow argue that there was no factual finding of a deadlock, though it was implicit.

And the defendant’s counsel didn’t do so hot during a tag-team by Alito and Breyer, where they got her to admit that there was no case out there where something like this was held to be an abuse of discretion. The Chief Justice tried to help her out, but she flubbed it, citing only a general principle against irrational and precipitous decisions. Scalia would have none of that, pointing out that what’s needed here is proof that the judge’s decision was contrary to, or involved an unreasonable application of, clearly established federal law.

(We do our share of habeas petitions, ourselves, so we ought to mention that Scalia’s correct here. You can’t just say it was an abuse of discretion. You have to say that there’s a federal standard that was applied, and it was applied wrong.)

Stevens jumped to her rescue, pulling her away from the precipice of whether there was an abuse of discretion, and feeding her the line that the issue is really “whether there was a manifest necessity” to declare the mistrial.

There was some back-and-forth with the Chief on this, unfortunately without much meat to it. But it did contain our favorite quote from the term so far:

CHIEF JUSTICE ROBERTS: I’m sorry, please finish your sentence.

MS. McCOWAN: No.

CHIEF JUSTICE ROBERTS: Okay.

Sotomayor finally got the lawyer to say something worthwhile, by asking how the state court unreasonably applied federal precedent. The lawyer remembered that Arizona v. Washington requires that the judge exercise sound discretion, and here the judge didn’t exercise any discretion. And failure to exercise discretion is an abuse of discretion. The Michigan supreme court improperly applied federal law by failing to see that.

And here she was on solid ground at last. Scalia’s retort she could now easily clarify. The Chief spelled it out for her a little better, that some abuses of discretion aren’t going to be enough for a habeas challenge, but they will be if the state supreme court unreasonably applies the federal standard to make its call.

That’s how she should have started her argument, but at least she got to it in the end.

The rest of the defense’s argument was spent parsing the jury’s note and the transcript, to figure out what was really being said, what might have been meant, and what else might have been said. That’s important, because it means the justices were getting to that issue. They had crossed the threshold of whether the legal standard applies here, and were now diving into the merits. And that’s good for the defendant, because it’s hard to say that the judge was acting anything other than precipitously here. (Ed. note: Are you sure the correct word isn’t “precipitately?”)

-=-=-=-=-

So, given the way the argument went, how do we think the Court will decide the case? We’ll say 6-3 in favor of Lett. Scalia is not convinced that the AEDPA was satisfied here, and Thomas will probably go along with him (though statistically, he doesn’t side with Scalia any more often than other similar justices side with each other). Alito didn’t seem all that taken with the defense side. But Roberts, Stevens, Breyer, Kennedy, Ginsburg and Sotomayor all seemed slightly on the side of calling this an abuse of discretion.

So we predict they’ll say the judge should have at the very least gotten some input from trial counsel, and maybe even some more solid evidence of deadlock, before calling a mistrial. That was an abuse of discretion, and the Michigan supreme court improperly applied Supreme Court precedent in finding otherwise. And the abuse of discretion was severe enough that the defendant got screwed, triggering the protections of Double Jeopardy.

We’ll find out if we’re right in June.

The Supreme Court is back in session, well rested from a three-week vacation. (We don’t remember the last time we took three weeks off. Wonder what that must be like.) They opened the day this morning with two interesting per curiam decisions.

The first, Wilkins v. Gaddy, is about what counts as “excessive force” against a prisoner. There was some confusion among the circuits here.

This was a case coming out of North Carolina. A prisoner named Wilkins asked a prison guard for a grievance form. The guard, Gaddy, lost his temper. Wilkins claims that Gaddy threw him to the ground and beat him up, until another officer came and pulled him off. At the end of the day, though, his only injury was a bruised heel and some lingering pain.

The Fourth Circuit said that didn’t count as “excessive force,” because there wasn’t much injury. The main case on point was Hudson v. McMillian, 503 U.S. 1 (1992), which the Fourth Circuit had been interpreting to mean that the prisoner’s injuries had to be more than de minimis. And a bruise on your heel is about as de minimis as it gets.

The Supreme Court reversed, saying that’s not at all what Hudson was saying. Calling the Fourth’s reading of that case “strained,” the Supremes clarified the rule in no uncertain terms: the focus is not on what happened to the prisoner, but on what the corrections officer did.

The issue is not how significant the injuries were, but whether the correction officer’s force was “nontrivial,” and “was applied maliciously and sadistically to cause harm,” rather than as part of “a good-faith effort to maintain or restore discipline.”

So, just because a prisoner got hurt, that doesn’t mean he was subjected to cruel and unusual punishment. People can get hurt for other reasons; that makes sense. What matters is whether he was assaulted, subjected to unjustifiable ill treatment. The extent of injury doesn’t have anything to do with whether his rights were violated in the first place — they merely go to “the damages he may recover.”

-=-=-=-=-

The second case decided today, Thaler v. Haynes, is a Batson case out of Texas.

This was a death penalty case, so the stakes were high. There’d be some pressure on everyone involved to do it right. But the criminal law being what it is, things went weird from the get-go.

When the attorneys questioned potential jurors during voir dire, they were in front of Judge Harper. But when they sat down to exercise their peremptories, they were in front of a different judge, Judge Wallace, who hadn’t been there for the questioning. An unnecessary wrinkle that only caused problems, as it turned out.

Because the prosecutor struck a Black woman named Owens, and the defense cried Batson.

(Batson, for those of you playing along at home, is a case that says race cannot be a valid basis for a peremptory challenge, which ordinarily can be for any reason. It’s a strange decision, because it’s not written to protect the rights of the individual defendant. It doesn’t matter if the people being excluded are of the same race as the defendant. The prosecutor can raise a Batson challenge to defense peremptories as well. The reasoning is that it’s not the defendant’s right’s being violated, but the rights of potential jurors. Seriously. We told you it’s a strange one. But we use it as if it somehow were protecting the defendant’s rights, perhaps to a representative venire or some such.)

After crying foul, the defense had to make out a prima facie case that the prosecutor was excluding Black people. They seem to have done so, and so then the burden shifted to the prosecutor to give an explanation for striking Owens that had nothing to do with race.

The prosecutor said Owens’ demeanor and body language indicated that she wasn’t taking the proceedings seriously, and that she wouldn’t be neutral when considering the death penalty.

The defense argued that there was no way Judge Wallace could assess that explanation, because he wasn’t there to see the jurors’ demeanors himself during questioning.

Judge Wallace ruled that there was no Batson violation, the case went to trial, Mr. Haynes was convicted, and he was sentenced to death.

Haynes appealed on the Batson issue, lost, and the Supremed denied cert. He lost a state habeas petition, and then went for federal habeas. The District Court said no, but then the Fifth Circuit found otherwise:

An appellate court applying Batson arguably should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror’s demeanor upon which the prosecutor based his or her peremptory challenge.

So the Fifth Circuit said no court could ever adjudicate this issue here, because all anyone has is the paper record of Owens’ questioning, and there’s no record of her demeanor. So they ordered a new trial, a complete do-over.

This morning, the Supreme Court reversed. The two cases cited by the Fifth Circuit, Batson and Snyder v. Kentucky, nowhere say that a judge can’t accept a demeanor-based explanation unless that same judge was also a witness to the demeanor. Batson said the judge has to consider all possible explanatory factors. Snyder dealt with a peremptory challenge where the prosecutor gave two explanations, one of which was demeanor; the judge didn’t explain why he overruled the objection; the Supreme Court then held that the demeanor explanation could have been enough, but there’s no way to know whether the judge relied on it or on the other one, which wasn’t good enough.

In Snyder, the Court even specifically said that, although the trial judge’s observations are of great importance when the explanation is based on demeanor, they’re not necessary — as when the judge doesn’t remember that particular juror’s demeanor.

So today, the Supremes clarified once and for all that there is no requirement that the trial judge had to have observed the juror’s demeanor, when that’s the explanation given after a Batson challenge.

This is going to give prosecutors a little more wiggle room to just make up some bullshit story when they have a Batson challenge, but only in cases where the judge got replaced halfway through (impossibly rare), or where they’re confident that the judge wasn’t paying attention (sadly not rare at all). We’d like to say that no prosecutor would ever do something like that, but we’ve seen even worse, so this isn’t exactly heartening.

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

* * * * *

The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.