When jurors and the Internet connect-mistrials may result

An interesting article appeared in the Washington Post which
detailed the problems that judges are having with jurors who
turn to the Internet for information .

One juror would did not understand the term "lividity" and how it
related to the victim's death, looked up the meaning on Wikipedia.
The case was thrown out and another trial ordered as a result of the
appeal's court learning what had happened.

This raises an interesting question. Why if jurors are to weigh the
evidence presented in the courtroom should they be prohibited from
using a dictionary to get a word's definition? Smartphones, laptops,
netbooks, and desktops are now a ubiquitous part of today's society.

It makes sense to instruct jurors not to post about the case on Facebook,
or Twitter or MySpace since they have long been instructed not to
discuss the case outside of the deliberation room.

You cannot compare the knowledge base of today's jurors with those
at the time of the original jury trials in the colonies. Early jurors knew
the victims and the accused and obviously brought that knowledge
into discussions with other jurors.

Experts spout statistics, but jurors may or may not know what the
numbers mean in terms of the likelihood of something matching or
occurring.

It is time to consider the knowledge that should be given to the jury
and end the "which lawyer spins the best tale" basis for a
conviction. Whether it is knowledge from "Law and Order" or "CSI,"
today's juror does not enter the courthouse with a blank screen for
a mind.

We claim that critical thinking and analysis are important concepts for
students to master. This cannot occur in a vacuum; one takes everything
heard from witnesses and viewed in exhibits to reach conclusions. These
conclusions have been influenced by our own past experiences.

"I knew who had committed the crime because of the ring." What ring?
The ring left in a tub after washing out dirty items? The ring where
boxers compete? The ring on a female's left hand? The ring of a cellphone?
etc? there are many, many different meaning of this one word. For the
testimony to be valuable, we need to know which definition of the word is
used.

The time has come to either only allow bench trials where judges may
look up information or revisit the type of information that is given to
a jury. Intelligent people want to know -- if I am on trial, I want an
intelligent jury, don't you?

Hawaii proves deterence theory works

In 2004 Hawaii state trial judge Steven Alm decided to try to do
something to stop the revolving prison doors. This article informs
us that in many states, the majority of prison admissions come not
from arrests for new crimes, as you might think, but from probation
and parole violations. Nationwide, roughly two-thirds of parolees fail
to complete parole successfully.

To a large degree when there is a positive drug test or a missed appointment
the probation/parole officer will speak with the violator but not enforce
the rules with immediate jail time. The message that goes out is that
rule compliance is not really important.

Enter Judge Alm. He called a group of sex offenders and another group of
drug offenders to his courtroom and stated quite plainly that any violation
meant immediate arrest and jail time. No ifs, ands, or buts.

While he expected to see some positive results, what actually happened
was nothing short of amazing. Within a 6-month period, violations fell
by 93%. In comparison groups the compliance rate was 14%.

The program is called HOPE which stands for Hawaii's Opportunity Probation
with Enforcement. Take the time to read the entire article and learn how
effective this type of program was in Boston where gang members were the
focus.

The time has come for citizens to demand reforms such as this. Bills are
being introduced in Congress, but we must also see that the state
legislatures get on the band wagon. Unless we contact our legislators and
let them know that this is the type of reform we want to see, nothing will
happen. We can not afford to overcrowd our prisons with violators whose
conduct could, should, and must be changed for their sake and ours.

More Prosecutorial Misconduct

A county judge ordered release for a man who was sentenced four years
ago in a child molestation case where even the victim says it was NOT this
man. The article is sure to get your blood boiling as you read how this
was a pattern in the prosecutor's office and not an isolated incident.

This excerpt gives you a small indication of what type of misconduct
was involved:

The decision casts a shadow over the career of Deputy District

Attorney Troy Benson and further tarnishes the reputation of

the District Attorney's Office, which has come under fire in

recent years for alleged prosecutorial misconduct.

Uribe's conviction on charges he sexually assaulted a young

relative was overturned by an appellate court in 2008, after

a finding that the District Attorney's Office had improperly

withheld a videotape of the purported victim's physical exam,

which was turned over only after Uribe had been sentenced.

A defense expert then reviewed the videotape and said it

contradicted the prosecution witnesses' testimony that

the child had been assaulted.

Prosecutors have since acknowledged the existence of

about 3,300 of those videotapes dating back to 1991

that were never provided to trial attorneys, as required by law

Police and Fire Departments And Budget Crunch

In an article today on the Plain Dealer newspaper web site,
Cleveland, Ohio, has announced that police and firemen will no
longer be able to automatically extend their retirement past aged
65 years. Those who wished to remain on the job after reaching
aged 65 in the past were allowed to do so nearly every time.

The decisions are now made by the Safety Director and not the
City Council. He anticipates that 20-25 will be eligible to retire
and that extensions will only be made based on the needs of
the agency. Both the Fire Chief and the Police Chief have been
asked to assess agency needs to help determine if an extension
should be considered.

You will want to read the article and pay attention to the costs of
unused vacation and sick pay to the city when someone retires. In
most non-government employment, those who do not use their
vacations days, lose them. Will the current economic crunch
cause governments to reconsider the accumulation of vacation
days and even sick days?

Do you think the current policy should remain?

Limited Immunity Yes; Total Immunity Absolutely Not

Because of a 12 million dollar settlement, the Supreme Court will not be
considering whether prosecutors should have absolute immunity from

prosecution according to an interesting article in today's Christian Science

Monitor.

The two innocent men, Terry Harrington and Curtis McGhee, had spent
nearly 26 years in prison for a murder they didn’t commit.
Once the truth was discovered and they were released,
they sued the prosecutors in Pottawattamie County, Iowa.

The investigation into their claim of innocence revealed that
prosecutors had helped to gather and present false testimony
that resulted in their life without parole sentences.

Qualified immunity that offers prosecutors protection from most lawsuits
except when they have violated a clearly established constitutional right
is the doctrine that those involved in criminal defense and the innocence
project were urging the court to follow.

Prosecutors wanted absolute immunity. Prosecutors are normally given
absolute immunity for actions taken during a trial. But the many recent
revelations about prosecutorial misconduct should require the judicial
system to back qualified immunity. No one in a democracy should ever
be allowed to violate another's constitutional rights with total protection.

A web search using prosecutorial misconduct reveals literally thousands
of articles of such instances. Many, if not most, of the cases involve
poor defendants and often members of a minority. There is a well
written book called Arbitrary Justice about the frequency of abuse
that is taking place. I wrote a review of this book for the Law and Courts
section of the Political Science Association Book Reviews; you can read it here

Judges and Warden Say Man Scheduled for Execution is not Guilty

The crime occurred in 1983, within a week an escapee was arrested, tried and
convicted of killing members of a California family. One child did not die immediately
and said 3 white men were responsible. When the escapee's picture was shown on
television, the boy said it was not that man.

The article and the reason why so many believe the man on death row is innocent,
but is scheduled to be executed, is truly frightening. The opponents of capital
punishment who have long clung to puzzling clues and hints of police misconduct
have been joined by a prison warden, 11 federal judges and five jurors now
bothered by allegations that Cooper was framed.

When serious questions of guilt arise, governors and/or boards of pardon and parole
should automatically see that the sentence is commuted to life without possibility
of parole to prevent the execution of someone who might be innocent.

Going ahead with an execution when so many raise questions appears to be a
travesty of justice

Supreme Court had a light load

In years gone by, the Supreme Court handed down over 100 opinions
by the end of a term. That is no longer the case.

In a Washington Post article, The Chief Justice who gives a
traditional State of the Judiciary Report wrote the following:

Criminal case filings rose 8 percent in 2009 over the previous year,

and the number of defendants in the federal system set a record at

nearly 98,000. "The number of criminal cases reached its highest

level since 1932, the year before ratification of the Twenty-first

Amendment, which repealed prohibition," Roberts wrote.

He said the increases came in cases related to immigration, fraud,

marijuana trafficking and sex offenses. Immigration filings

climbed to record levels, mostly because of allegations of

"improper reentry by aliens or fraud or misuse of a visa

or entry permit," according to the report.

The number of bankruptcy filings grew 35 percent from

the 2008 total, a result of the nation's struggling economy.

Roberts noted that it was the highest number of filings

since 2005, when there was a rush to file in advance

of a new federal law that changed standards.

He noted that his own court had a modest uptick in its

workload in the term that began in October 2008.

The court heard arguments in 87 cases,

and 83 of them were decided in 74 signed opinions.

That compared with 67 signed opinions in the previous term.

Another article in the New York Times provides some

interesting facts about the actual numbers of cases

heard by the federal courts.