Court to Consider Cert of Issue of whether Jury Verdicts must be unanimous

This is being reprinted in whole from the Supreme Court Justice blog

SCOTUSblog

Conference Call: Do Guilty Verdicts Have to Be Unanimous?

Posted: 29 Sep 2008 10:39 AM CDT

The Constitution grants defendants the right to a jury trial in all criminal cases.

But when it comes to the details, the Framers were conspicuously silent.

While the Sixth Amendment requires that juries be locally drawn,

it says nothing about how many members must serve, how they should be selected,

or how convinced they must be to find a defendant guilty.

In its first conference of the upcoming term, the Supreme Court will consider

whether to grant review in a case involving perhaps the most fundamental,

and most widely assumed, aspect of jury trials: whether all members

must unanimously agree to render a verdict.

(The conference is scheduled for Sept. 29, and a decision is likely to be announced Sept. 30.

The petition is No. 07-1523, Lee v. Louisiana.)

The justices have answered the question before, in a splintered decision in the early 1970s,

holding that states could permit juries to convict or acquit defendants by as few as 10 votes.

But in a naked appeal to overrule precedent, the petitioner—accompanied by five amicus

briefs, including one from the American Bar Association—asks the justices to restore

a unanimity requirement that had previously extended back to the Middle Ages.

The defendant in the case, Derrick Todd Lee, was arrested in connection with

the 2002 murder of Geralyn Desoto, a university student who,

according to prosecutors, had allowed Lee in her home to use her phone.

(Lee, dubbed the “Baton Rouge Serial Killer,” has been linked to the

murders of six other women in southern Louisiana.)

A grand jury charged Lee with first-degree murder, a capital crime requiring unanimity for conviction.

But shortly before trial, Louisiana amended the indictment to second-degree murder—

a noncapital crime that, under state law, requires the agreement of only 10 jurors to render a verdict.

Following deliberations, the jury voted 11-1 to convict, and the judge sentenced Lee to life without parole.

On appeal, among other issues, Lee argued that the Constitution required

a guilty verdict to be rendered unanimously. Applying the Supreme Court’s

1972 decision in Apodaca v. Oregon, an appeals court swiftly rejected the claim.

In a convoluted decision, four justices in Apodaca found the constitutional

right to a jury trial mandated unanimous verdicts in both state and federal trials.

Four justices found it did not. In the middle was Justice Lewis Powell Jr.,

who concluded that while criminal defendants were entitled to jury trials

in both state and federal court, the unanimity requirement was not

“incorporated” against, or applied to, the states.

Because Powell provided the fifth vote to affirm the defendants’ convictions,

his views controlled. To this day, Oregon and Louisiana remain the only states

that do not require unanimous verdicts in some criminal cases.

With the Court already having addressed the issue, Lee’s petition for certiorari—

filed by Jeffrey Fisher, a law professor and director of the Stanford Supreme Court Litigation Clinic—

is devoted almost entirely to urging the justices to overrule Apodaca.

In his main line of argument, Fisher says more recent Sixth Amendment decisions

undercut the rationale by which Apodaca was decided.

Whereas the Apodaca plurality looked to the function juries serve in modern society,

the petition contends—citing numerous cases Fisher himself argued—

that the modern Court looks at practices as they existed when the Bill of Rights was adopted.

Fisher further points out that a line of cases beginning with Apprendi v. New Jersey (2000),

which required juries to find any factor that increased a defendant’s sentence,

have repeatedly quoted a passage from English commentator William Blackstone

that all criminal accusations must be confirmed by the “unanimous suffrage” of twelve jurors.

To overcome the Court’s adherence to stare decisis—the principle of abiding by prior decisions—

Lee argues that aside from Justice Powell, each of the other eight justices in Apodaca

believed the unanimity requirement should apply equally to both state and federal trials.

In the last thirty years, Fisher says, no justice has advanced Powell’s theory of “partial incorporation.”

Because the unanimity requirement applied in jury trials for hundreds of years

prior to the founding, the petition says the Court should be less reluctant to overrule

decisions that themselves departed from longstanding practice.

Finally, Fisher says recent empirical studies cast doubt on the Apodaca assumption

that unanimous juries were unnecessary to ensure adequate jury deliberation.

For example, the petition explains, in one study of trials in Arizona

(as recounted in the Northwestern Law Review), members of unanimous juries

reported engaging in more thoughtful debate and fears of eccentric holdout jurors did not materialize.

Citing other studies, including a report by the American Bar Association,

Fisher writes that “members of racial and ethnic minorities are often the ones

who are outvoted in non-unanimous verdicts.”

Opposing review, the state of Louisiana contends the petition fails to demonstrate

any special need to overrule Apodaca. Filed by Chief Felony Prosecutor

Antonio M. “Tony” Clayton, the brief in opposition maintains that

unlike the rights to counsel and cross-examination, which Fisher cited in the petition,

jury unanimity is not mentioned in the Bill of Rights.

If the Court had intended to overrule a prior decision in the Apprendi line of cases,
Clayton says, “it surely would have done something more than simply quote Blackstone.”

Do you think that criminal jury verdicts should/must be unanimous?

Sheriff Joe Arpaio facing federal inquiries based on profiling

Sheriff Joe Arpaio from Maricopa County in Arizona has been in the news
during his four terms in office.
He built his secondary jail out in the desert and placed the inmates in these tents
wearing pink underwear.
He stopped serving coffee when it got expensive and
meals became cold meat, often bologna, sandwiches.

He is currently running for a fifth term and seems likely to be re-elected.
But dark clouds are also descending on the Sherrif and his operation.
The current concern involves arresting illegal immigrants and other legal resident
Hispanics.

"A federal lawsuit by the Mexican American Legal Defense and Education Fund

accuses the sheriff’s department of racial profiling and detaining legal residents

and American citizens for long periods while their status is checked.

The Government Accountability Office, a watchdog arm of Congress,

is re-evaluating a program under which federal officials trained the deputies here

and elsewhere in immigration enforcement.

And the mayor of Phoenix, Phil Gordon, has asked the Justice Department

to investigate the tactics employed by Sheriff Arpaio, who first gained national attention

years ago for forcing inmates to wear pink underwear, housing them in tents

and feeding them food of a green hue."

The quote is from a New York Times article that details the accusations.

The focus of the challenges is that the Sheriff's deputies are using racial profiling

and requiring not only a driver's license from Hispanics but a social security card

or other secondary items as well. Anglos need only show a driver's license

when stopped. In addition all are asked about their immigration status.

It will be interesting to watch developments in the various investigations.

There is divided opinion across the country on the constitutional role

police and/or sheriffs should play in respect to the capture of illegal immigrants.

Where do you stand on this issue?

Helping Families When a Mother or Grandmother is in Prison

An excellent article appeared in USA Today about a monthly program in Missouri that
allows young children to have
contact visits with mothers and grandmothers. The setting bears resemblance
to a day care room and allows the children to see that they are not the
only ones with a maternal relative in prison.

In addition the prisoners take courses to help their parenting skills and the visitors can see
the changes as they occur.

Many prisons across the country are beginning to realize the need to address family issues.

This article should be read. Then think about whether our state should consider such a program and
whether it would be accepted by both the public and the correctional institutions.

Share your thoughts with those of us who read this blog.

Public No Longer favors mandatory minimums for non violent offenses

With nearly all American eyes on Washington trying to discover how the financial security of the United States will be handled by Congress, it would seem that mandatory minimums is not the topic to be discussed. However, as we face a mammoth federal deficit and state budgets having problems, this is probably an excellent time to consider where taxpayer money is going and begin to raise some questions about the wisdom of some programs. Prison costs are eating up a greater percentage of budgets in some states than is being allocated for higher education.

60% Oppose Mandatory Minimums For Nonviolent Crimes: Survey

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Americans may be starting to rethink one of the toughest recent anticrime practices: mandatory minimum sentences for drug offenses, says the Christian Science Monitor. A new survey finds 60 percent of respondents opposing mandatory minimums for nonviolent crimes, including a majority of both Democrats and Republicans. Nearly 80 percent said judges are best qualified to determine sentences for crimes; nearly 60 percent said they'd be likely to vote for a politician who opposed mandatory minimums. "The public is ahead of the politicians on this," says Julie Stewart, president Families Against Mandatory Minimums (FAMM), which commissioned the poll. "This is a message members of Congress haven't heard. [] As a country we believe in individualized justice."

Not everyone believes mandatory minimums should be changed. Attorney General Michael Mukasey opposed the efforts last year to reduce sentences for crack offenders. The Fraternal Order of Police advocates mandatory minimums as an important deterrent to drug crimes. Says the FOP's Jim Pasco: "Nothing focuses the mind on consequences like knowing that you're going to get, for instance, a five-year minimum sentence." FAMM argues that there's no evidence mandatory minimums have helped reduce drug crime, and in fact, often focuses law-enforcement efforts on small-time players rather than drug kingpins.

The full article is here.

Where do you stand on this issue? Should we push our leglators into revising sentencing laws? Should we push for more alternative sentences for non-violent first offenders?

More than 20 years in Solitary

This article appeared in the NY Times on September 23, 2008

September 23, 2008

Two Decades in Solitary

By JOHN ELIGON

He is one of New York’s most isolated prisoners, spending 23 hours a day for the past two decades in a 9-by-6-foot cell. The only trimmings are a cot and a sink-toilet combination. His visitors — few as they are — must wedge into a nook outside his cell and speak to him through a 1-by-3-foot window of foggy plexiglass and iron bars.

In this static existence, Willie Bosket, 45, seems to have gone from defiant menace to subdued and empty inmate.

It was 30 years ago this month that a state law took effect allowing juveniles to be tried as adults, largely in response to Mr. Bosket’s slaying of two people on a New York subway when he was 15. He served only five years in jail for that crime because he was a juvenile, sparking public outrage. But shortly after completing his sentence, Mr. Bosket was arrested for assaulting a 72-year-old man.

He once claimed to be at “war” with prison officials. He said he laughed at the system and claimed to have committed more than 2,000 crimes as a child. He set fire to his cell and attacked guards. Mr. Bosket was sentenced to 25 years to life for stabbing a guard in the visitors’ room in 1988, along with other offenses, leading prison authorities to make him virtually the most restricted inmate in the state.

Now Mr. Bosket, who has gone 14 years without a disciplinary violation, does mainly three things: read, sleep and think.

“Just blank” is how Mr. Bosket described his existence during a recent interview at Woodbourne Correctional Facility, about 75 miles north of Manhattan. “Everything is the same every day. This is hell. Always has been.”

He is scheduled to remain isolated from the general prison population until 2046.

Mr. Bosket’s seclusion is part of a bigger debate over the confinement of troublesome inmates and the role of the prison system. Some say that Mr. Bosket’s level of seclusion is draconian, that he should be given an opportunity to rejoin the general population.

“He is a very dangerous person; he’s killed people,” said Jo Allison Henn, a lawyer who helped represent Mr. Bosket roughly 20 years ago when he fought unsuccessfully to have some of his restrictions removed. “I’m not saying he should be released from custody entirely, just the custody that he is in. It is beyond inhumane. I don’t think that too many civilized countries do that.”

But proponents of Mr. Bosket’s restrictions say he has proved to be something of an incorrigible danger to prison guards and other inmates and cannot be trusted in the general population. He is evaluated periodically, meaning he could rejoin the general prison population before 2046, said Erik Criss, a spokesman for the Department of Corrections.

“This guy was violent or threatening violence practically every day,” Mr. Criss said. “Granted, it has been a while, but there are consequences for being violent in prison. We have zero tolerance for that.”

From 1985 to 1994, Mr. Bosket was written up nearly 250 times for disciplinary violations that included spitting on guards, throwing food and swallowing the handle of a spoon, according to prison reports.

Few, if any, of the state’s current inmates have been in disciplinary housing longer than Mr. Bosket, said Linda Foglia, a spokeswoman for the corrections department.

Mr. Bosket says he wakes up at 7:15 every morning and gets a visit from a counselor at 8. At 9, he gets his first of three doses of medication for asthma and high cholesterol, he said. Lunch comes at 11:30, followed by more medication at 1 p.m. and 5 p.m.

He is entitled to three showers a week. Other than one hour of recreation a day, also solitary, he may leave his cell only for medical visits and haircuts. The recreation area measures 34 feet by 17 feet, surrounded by nearly 9-foot-high walls with bars on the top. Mr. Bosket said he was chained to a door during his recreation time and could not walk more than six feet, but corrections officials disputed that account, saying he was allowed to roam freely during his hour like other inmates.

And while other prisoners in isolation are escorted to a visiting room when they have guests, he must stay in his cell, speaking through the plexiglass.

Most of his waking hours, he said, are spent reading books, magazines, newspapers and anything else he can get his hands on. His favorite magazine, he said, was Elle.

“It’s very colorful,” he said. “It keeps me up to date on technology and the world.”

Mr. Bosket has long been known as a paradox, a man of charm and extraordinary intelligence but also of inexplicable fits of rage.

“It was like a terrifying metamorphosis when this spark within him went off, and you could see the rage in him building,” said Robert Silbering, a former prosecutor who tried Mr. Bosket for the subway murders. “I never have seen anything like that before or afterward.”

The killings led Gov. Hugh L. Carey to sign a law allowing people as young as 13 to be tried as adults for murder. Mr. Bosket said he saw it as something of an honor that he could drastically change a justice system that he said made him a “monster.”

“If I’m the perfect example, then I’ve been taught well,” he said.

At the sight of a recent visitor, Mr. Bosket cheerfully nodded and, revealing a small gap between his front teeth, gave a friendly, “Hi, how’s it going?”

He spoke with the aura of a professor, using deliberate gestures and emphasizing the ends of many words. He often spoke in metaphors and used stories and quotations to explain his philosophies.

As he contemplated his words, Mr. Bosket often folded his right arm across his bulging stomach and lay the fingers of his left hand across his mouth and nose. He sometimes rocked in his chair.

Despite his bleak situation, Mr. Bosket refused to concede defeat: “I’m not broken down and never will be.”

His life has always been empty, he said.

“I grew up with nothing,” he said. “I was born with nothing. I still have nothing. I will never have nothing. Forty-five years of living the way I have lived, I like ‘nothing.’ No one can take ‘nothing’ from you.”

Mr. Bosket, who has spent all but two years in some form of lockup since he was 9, also said he had formed a “breastplate” from a lifetime of incarceration.

“I’ve become so callous to the poking of the sword that, literally, instead of bleeding to death, the blood was drained and I became absent of concern, void of emotions, cold — plain cold to the degree that not much affects me anymore,” he said.

Yet Mr. Bosket did hint at something of a life of suffering.

“If somebody came to me with a lethal injection, I’d take it,” he said. “I’d rather be dead.”

His change from vicious to quiescent, Mr. Bosket said, was a calculated move. Growing up in Harlem, Mr. Bosket said, his heroes were revolutionaries like Huey Newton and Assata Shakur. He said he believed blacks needed to use violence to survive in the 1970s and ’80s.

But in 1994, he said, he sensed a change in society. “Blacks don’t need to go and attack to get their message across,” he recalled thinking.

He said that he also wanted young people to see positive in his life, and that continued violence could be counterproductive.

“I don’t believe at this point it’s strategic for me to be aggressive or violent,” he said. “I’ve made my point.”

“I’m not proud of a lot of the things I’ve done,” he added.

Mr. Bosket’s sister, Cheryl Stewart, 51, said her brother had expressed remorse in letters.

“What was done was wrong, and if he could redo it, he wouldn’t do it again,” she said. “He knows what was done was wrong and is just sorry for what all has went down.”

Though she corresponds with her brother, Ms. Stewart said she had not visited him in 23 years because it was difficult to see him so confined. Mr. Bosket is lucky to receive more than two visits a year.

Adam Mesinger, a television and movie producer, said he had visited Mr. Bosket seven times over the past four years and is shopping a script for a movie about Mr. Bosket’s life. He said that Mr. Bosket had always been warm and open with him and that he would consider him a friend.

“I have no fear of him,” Mr. Mesinger said. “I don’t think he would ever harm me. I don’t think he ever really wants to harm anybody.”

But not even Mr. Bosket would say that his days of violence are behind him.

“When you’re in hell,” he said, “you can’t predict the future.”

Copyright 2008 The New York Times Company

With no violations in 14 years, do you think he deserves a chance to be in general population or is the risk of harm to others too great to take that chance?

Public Defender in Tenn wants alternatives for juvenile

This is being copied from the Tennessean

Public defender wants alternatives to juvenile detention

By KATE HOWARD • Staff Writer • September 22, 2008

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  • Buzz up!Nashville's new public defender says she is most proud of two things: the good work her office does in representing the city's poor and being the city's first woman to hold the office.

Dawn Deaner, a 12-year veteran of the office, was appointed by Metro Council Tuesday night to lead the office until 2010. She'll be completing the term of Ross Alderman, who was killed last month in a motorcycle accident.

"I can't say enough about how proud I am to be a part of this office," Deaner said. "And how lucky Nashville is to have had the great public defenders we have had."

Deaner sat down with The Tennessean last week and talked about her respect for the history of the public defender's office and her vision for the future.

Ross Alderman was well respected in your office and in the community. Tell me about some of the qualities he possessed that you admired in him.

He cared deeply about our clients. He was doing this job because he cared, and saw humanity in each client we dealt with. Whether they were a homeless person charged with panhandling, or somebody who had committed a very serious offense, he saw their humanity. I think that's one of the most admirable qualities about him.

He was patient, with all of us. He took the time to listen to all of our gripes, rantings and insecurities, any problems that we had whether they be legal or personal, and didn't look down on any of them. … He would cut through all the emotions of it and give me a clear answer on where I needed to go from there.

What is your philosophy on the role of the public defender in the community?

First and foremost, the role of the public defender is to be an advocate for the community, to provide quality legal defense representation to the poor.

I think in the larger community of the city of Nashville, the public defender can play a role in helping citizens to understand the importance of the criminal justice system, and the importance of the public defender's office to a fair system.

I also think the public defender is somebody who can try to create a positive impact in the communities that we primarily serve. … I heard somebody say there's been plenty of blue-ribbon panels everywhere to try to resolve the issues of the rise in juvenile violent crime, recidivism rates, and lots of issues like that, that predominantly come out in the justice system.

The public defender can't find all the answers to that, but I think the public defender can play a role in finding the answers, by working with the communities those crimes impact. …

I think the public defender has a very important role to play in trying to be creative, finding new ways in the criminal justice system to address root causes of crime, rather than watching as our clients get sent off to jail or prison. One really important thing the public defender can do is look for alternate treatment programs, solutions to the problems that cause crime rather than simply represent people as they go to jail or prison.

What policies or programs that Ross Alderman started do you hope to continue?

The mental health court program (spearheaded by Alderman) I think is important. I think it's important that program continues and it would be great to be able to expand it.

Federal and state money available to the mentally ill in our community is dwindling and dwindling away. It's not only the mentally ill, but the mentally retarded as well. The dollars available are smaller every year.

A large part of the reason we see individuals dealing with those issues is that our criminal justice system is not where they belong. … They should be in treatment, getting the type of special services they need and they wouldn't be in the criminal justice system.

Continuing with the Drug Court programs and trying to find creative solutions for individuals addicted to drugs — and as a result of that are involved in criminal activity — is very important as well. I think most of us in the criminal justice system would say that an overwhelming majority of the offenses we deal with are motivated by drugs in some way.

I think also what needs to be addressed, what I would like to look into, is the issue of juvenile crime and how we can better deal with that. Simply transferring juveniles who commit serious offenses to criminal court for treatment as adults is not, in my opinion, the right solution.

I think I'm interested in seeing if there's some alternatives, some programs that we can develop in our juvenile court system to try to address some of the issues that are more and more affecting juveniles.

What challenges are the public defenders in your office facing today?

Obviously, I'm still learning about those challenges, having only been in this position for my third day now. But the challenges oftentimes here are retaining attorneys, qualified and high-caliber attorneys. The law school debt for most students coming out of law school is enormous. … While their hearts may want to come to the public defender's office, their bills are telling them
they need to go somewhere else.

We have a lot of lawyers here that work second jobs. I know in the district attorney's office as well, a lot of lawyers work part-time second jobs to try to make ends meet.

It's a challenge, retaining lawyers after they've been here a while so you then develop a second tier of qualified, experienced attorneys to handle some of the more serious cases we have. …

In the last budget year, the council and the mayor were gentle to this office, and we didn't see large reductions. We're able for the most part to continue providing the same level of services that we have in the past. … In criminal courts, an average (caseload) is between 25 and 35 indicted cases. On top of that, they usually have 20-40 bound-over clients, who have been through General Sessions Court and are bound over to the grand jury.

How do you think the African-American community in Nashville perceives your office, and what do you plan to do to address those perceptions?

That's a really hard question to answer. I think that members of the African-American community who have had a reason to deal with our office, for the most part, have a positive perception of the office because we do provide high-quality representation here at the office. However … there are clearly some individuals in the community at that forum (last Monday at Jefferson Street Missionary Baptist Church) who expressed a sense that the African-American community here in Nashville perceives that they are not getting high-quality criminal defense representation from our office. I think that's a misperception.

I think what I have to do in the coming months and years ahead is to work harder to try to reach out to members of the African-American community who perhaps don't know firsthand a lot about our office.

One idea was utilizing our Web site more than we have in the past, keeping it more current, and perhaps publicizing a little better through our Web site. I'm also thinking about monthly memos to leaders in the African-American community about some of the successes of this office. … We can be out there more talking about our good news rather than just being dictated by the bad news, our perception being dictated by that.

You said the night you were appointed that you were proud to move from a public defender to THE public defender, because you can shape how the criminal justice system treats your clients. What does that mean to you, and what do you hope to accomplish in this more public role?

I think, what I meant by that is that as the public defender, you are a participant in policymaking decisions, within the larger criminal justice system. For instance, if there's going to be a meeting about whether a particular docket should exist or not, the public defender has the opportunity to offer input into what would be the best outcome for our clientele. …

As an assistant public defender, I viewed my role as helping whatever client I was serving at that moment, and trying to be the best advocate for that client. As the public defender, part of my job would be to advocate for all our clients across the board, and potentially be able to do things that will positively impact what happens to them within the criminal justice system, rather than just on a case-by-case basis.

Court requests video be part of the record

This was taken from law.com

Video from 11th Circuit Excessive Force Case Finds Way to YouTube

When Judge Beverly B. Martin this month dissented to a federal appeals decision

in favor of a sheriff's deputy accused of civil rights violations for using a Taser

on a handcuffed man, she urged that a video of the events in question be published with the opinion.

The suggestion of Martin, a district court judge sitting by designation

with the 11th U.S. Circuit Court of Appeals, went unheeded.

But James V. Cook, the Tallahassee, Fla., attorney representing plaintiff

Jesse Daniel Buckley, apparently took Martin at her word.

On Monday Cook placed a copy of a video shot by a squad car camera on YouTube.

The six-minute video can be found under the term "Buckley v. Haddock."

Cook said Tuesday he is preparing a motion for an en banc rehearing.

The video shows how Florida sheriff's deputy Jonathan Rackard three times used

a Taser on Buckley, who had been stopped for speeding and then refused to sign

the traffic citation. Buckley is handcuffed, sobbing and sitting cross-legged on the ground.

Each Taser jolt administered a five-second, 50,000-volt electric shock, according to the 11th Circuit decision.

In the majority opinion, Chief Judge J.L. Edmondson found that Rackard's actions were

"not outside the range of reasonable conduct under the Fourth Amendment."

Judge Joel F. Dubina concurred, although he wrote separately that Rackard's

third use of the Taser against Buckley was unconstitutional.

Martin disagreed, writing "that the Fourth Amendment forbids an officer

from discharging repeated bursts of electricity into an already handcuffed misdemeanant --

who is sitting still beside a rural road and unwilling to move -- simply to goad him into standing up."