Looks Like They’re Getting Ready To Prosecute The Hold Out Jodi Arias Juror

I mean, I hope they don’t go down that road, but the Maricopa County Attorney’s press release is not too reassuring.

To a lawyer, this benign sounding copy appears to be a veiled reference to an “investigation” focused on prosecuting juror #17, the sole hold out on sentencing Jodi Arias to death.

After the obligatory disclaimer that of course they do not want to single any juror out for their “decisions made in the process of jury deliberations” “[whether] those decisions are in favor of the prosecution or not…” – and that’s an odd way of phrasing the idea already suggestive of bias – the press release goes on to say:

“In instances where there is credible information of misconduct, the Maricopa County Attorney’s Office will review the matter, request an independent investigation and then seek an independent review for any potential charges and then for prosecution.”

What is “credible information”?  That’s up to them to decide.  But don’t worry, any investigation will be “independent” not to mention “independently reviewed”.  How do you know?  Well, they’ve said so in a press release, and surely the Maricopa County Attorney’s office can be trusted, right?

Seriously, there is little that could happen at this point that would make the Jodi Arias fiasco even more important, but this is one.  And it’s not a good thing.  We at Lawyers on Strike don’t think we have ever seen in our lifetime a more dangerous threat to the right to trial by jury than would occur if juror #17 were now put in the dock, even if she was guilty of some kind of misconduct.



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Houston, We Have A Problem

A few days ago our frequent foil SHG put up a post about a prosecutor who “fabricated evidence” in a case, got found out and fessed up.  Then the prosecution was dismissed.  SHG is outraged, and wants everyone else to be outraged and is using his access to eyeballs to promote this story far and wide.

And – though I’m sorry to say it – he’s all fucked up on the law in one of the most dangerous ways possible.  He should come over here and read a few things.

What did this prosecutor actually do?  He inserted into a transcript a completely fabricated exchange between a defendant accused of child molesting and his police officer interrogator, as follows:

“[DETECTIVE]: You’re so guilty you child molester.

“[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”

After some hemming and hawing the prosecutor admitted the whole thing and claimed it was meant as a joke, but everyone was outraged and the prosecution’s case was dismissed.

The problem with going on and on about this, and SHG’s determination to “…spread it as widely as possible…” is that this is basically a case of all’s well that ends well, and the prosecutor is probably not guilty of misconduct at all; or if he is, it was a minor infraction.

I take this position for two reasons:  first, the claim that the fabricated exchange was meant as a joke is plausible.  I mean, just think about it.  And if it was meant as a joke – that is, not to be taken seriously – then the prosecutor wasn’t acting in bad faith.  I can certainly agree that he was acting with poor judgment – maybe poor enough to warrant an admonition or something – but he wasn’t acting in bad faith.

If he wasn’t acting in bad faith then on these facts he didn’t violate the defendant’s right to due process of law.

The second reason is, the prosecutor fessed up prior to the trial, prior to obtaining a conviction.  And his honesty in doing that, even if a little belated, should be recognized and encouraged, not punished.

The really dangerous thing, then – well, one dangerous thing, anyway – about SHG’s approach here is that it’s entirely a function of the prosecutor’s candor in admitting what he did.  The prosecutor could have doubled down once it became a big issue and compounded lie with lie all the way to a conviction, but he didn’t.

That, by the way, would be a violation of the defendant’s right to due process of law.

Now, that prosecutor’s candor may have in part been prompted by self-interest, but nevertheless:  this was a disaster that was avoided because of that candor.  There was no wrongful conviction.

And another thing:  this is a poor case for the defense minded to tout, because by any sane measure the defendant was factually guilty.  This is a better opportunity for the prosecutor side to score public relations points than the defense side.  The vast majority of people will not have SHG’s blinders on and will recognize the likelihood that the prosecutor was just joking around, however inappropriately, and conclude that the defendant got off on a technicality, and that the soft on crime judge and defense lawyers over-reacted and let the guilty guy go free.  I mean, wait til he gets arrested on another child molestation charge, which I can assure you the cops will be looking to do, and will probably be able to do without fabricating anything.

We have a defense bar that can’t distinguish unintentional Brady due process violations from the far more basic – and far more serious – Mooney due process violations.  And this has been exploited by the worst prosecutors, some of whom have apparently resided even within the Department of Justice itself.

This is a big problem.  I keep trying to fix it.  It would be nice not to be undermined from underneath, by the defense bar.

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Jodi Arias Will Live…(Updated.)

…for now anyway.  The jury hung, and because that’s the second time the death penalty is off the table.

The judge has the option of sentencing to LWOP or Life, eligible for parole after 25 years, and of course she’ll do the former.  The lynch mob is already angry.  Twitter is entering tilt mode from all the traffic from people who wanted a death sentence.

The whole thing doesn’t speak well of us, or our collective ability to reason.  That there was even one juror that would have voted for death in such an obviously inappropriate case is yet another testament to the power of official accusation.  If a defendant ever offered a defense so obviously unwarranted he would be laughed out of court.

In any case, it’s an appropriate result for two reasons:  1) you basically can’t sentence someone to death for the only crime they have ever committed in their life; and 2) the determination of guilt is about as doubtful as any could be.  The trial was a circus; the prosecutor was a blowhard and an idiot; and the investigation was directed by a moron who ignored everything but the easiest target, as if he simply didn’t have the brainpower for a modicum of curiosity, imagination or objectivity.

The bad part of the sentencing outcome is that the case will get far less scrutiny on appeal and in “post-conviction review”.  This case should get a lot of attention, because there’s a reasonable prospect that the whole thing turned out wrong.

Update:  Sheriff Joe seems to identify with Jodi Arias’ …

“…thirst for adoration and attention, Arias is willing to corrupt these young
girls, all to satisfy her own narcissism. That needs to stop,” Arpaio says.
and so a whole bunch of people are being banned from visiting Jodi Arias in jail.
I don’t really know how Arias can be held responsible for the intense interest – most of it viciously directed at her, so far as I can tell – in her and this case.  But one of the collateral consequences of being a convicted felon is that people feel very free to blame you for things other people wouldn’t be blamed for.
There’s a primitive impulse behind it all.  As I’ve said many times, this whole area needs a lot of study.


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Throwing Down The Gauntlet….

…in Alabama.  This is sort of extraordinary.

We’re not taking a position on the underlying issue; that is, whether there’s a constitutional right to marry another person of the same sex.  We would note only: 1) that once the SCOTUS waded into the whole marriage thing with Loving v. Virginia, holding that “miscegenation” laws were unconstitutional, it became difficult to see the boundaries of the fundamental constitutional right to marry; and 2) the necessary implications for polygamous marriages are too obvious to belabor.  There is no honest, principled way to hold that there’s a right to same-sex marriage while denying that this same right would include polygamous marriages.  And maybe that’s a Good Thing.

In any case, the real story here is that this is something of a constitutional crisis down there in Alabama.  That it is Alabama and not, say, Louisiana, is on the face of it fortunate for same-sex marriage-is-a-constitutional-right advocates echoing, as it does, the notorious role of Alabama in some of the civil rights struggles of the 1950’s and 60’s, and of course those advocates really like that comparison.

On the other hand, there are pitfalls here. At some point the moral equivalence of sexual orientation discrimination and racial discrimination, which has been an appealing line of argument, could break down, and that might be a real setback for the gay rights cause.  We’re not saying it will or won’t (break down, that is) but we find it difficult to imagine that fire hoses are going to be turned on anyone over a same-sex marriage debate that is taking place not so much in the streets but in the courts:


And it’s equally difficult to imagine that Washington will send troops to force clerks and judges to issue marriage licenses.  But at this point a scenario is developing where the Alabama state officials involved are going to be necessarily violating someone’s court order – state or federal – because it’s not possible to comply with both.  What if it pans out that some officials go one way and others go the other way?  So you can’t get your marriage license in one county you just drive over to the next one?  Is there going to be any civil unrest over that state of affairs?  Again, difficult to imagine, not to mention that’s pretty much how it’s panning out already:

It is undisputed that at that time respondent probate Judges King, Martin, Ragland, and Reed began issuing marriage licenses to same-sex couples in their respective counties.  Probate judges in some other counties refused to issue any marriage licenses pending some further clarification concerning their duty under the law.  Still other probate judges continued to issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples.

But the deeper problem, if indeed that’s how it pans out in Alabama, pertains to the idea that the United States Supreme Court is the ultimate law-giver.  Certainly that has been the popular perception, but it’s never been as intellectually secure as the SCOTUS worshipers would like.

For quite some time, the SCOTUS held off on doing anything about the same sex marriage issue.  It was playing out in the states and localities of the country quite nicely without constitutionalizing it, but some federal appeals court judges forced their hand and now they’ve indicated they’re going to make a ruling.  It appeared there was a fragile consensus on the SCOTUS that maybe they should just stay out of it.

Too late for that now, though.  SCOTUS is in the soup now, and so are the rest of us.


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Interest Rate Two-Step

Via Drudge, behind a link questioning whether the Fed is ever going to “raise rates”, it appears at least that it won’t be any time soon.

We’ve been over this beforeLots of times.  But to recap briefly, the idea – basically by now thoroughly discredited to any reasonably informed and intelligent person – that “low interest rates stimulate the economy” is a self serving mythology of the financial and government class that is sold to the rubes in fly-over country to falsely assure them that what is being done by their representatives is all in their interest (no pun intended).  The truth is that the banking system is protecting itself and its privileged economic position, and all those who have come to rely on that position.  Which is a not insignificant number of people, and not all of them are masters of the universe billionaire types.

The political considerations here are formidable.  That’s why I rarely view this stuff in terms of good and evil.  I think everyone feels trapped, even those who are ostensibly running things.  It’s just not quite fair that they are trapped where they are, and others are trapped into, say, homelessness.

Can they keep rates low for a really, really long time and let banks who would otherwise collapse re-order their balance sheets so that when rates finally rise those banks won’t go under?  It would seem this is the plan.  What is the human cost of it?

I’m going to have to mull that over for a bit.

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Gamso v. Greenfield (Updated)

Is the Innocence Project anything more than a pain in the ass?

One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.  You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people, Justice Scalia excepted.

The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.  The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern.  The guilty are throwaways.

SHG has a point.  A small one.  Without debating the matter at length, we would agree that to any fair minded person almost no one should be a ‘throwaway’, such that we just, say, sentence them to death and that’s the end of it.  At the same time, “…focusing public concern on the innocent…” does not come at the expense of concern for anyone else, unless the public concern is some sort of zero sum game.   We don’t know why SHG would think that.  We don’t know why anyone would.

We’ll say this, though, for SHG:  he’s consistent on this point, at least in the larger sense, insisting that the CDL perspective is to defend them all, innocent or guilty.  This, too, is not in the least problematic.  Unless it becomes some kind of dogma with far reaching – and completely unnecessary – implications.

For example, does consideration of the government’s offer of leniency in the form of a plea bargain in any way depend upon the actual guilt or innocence of the defendant?

Meanwhile, Gamso writes another compelling piece about a death penalty case in Texas that’s conscience shocking by any sane measure; and yes, it involves a guy who has been in the Texas prisons since 1996 and appears not only to be innocent, but to have been framed by a cop.

That scenario certainly resonates around here.

Ordinarily Gamso agrees with SHG (and for that matter, Justice Scalia) in oft opining that innocence doesn’t matter.  But with Gamso there’s a qualifier:  “…until it does…”, you might say.  For SHG, well, like we said he’s consistent on the point.  It’s a dogma.

Here’s an interesting thing, though:  SHG seems to believe that innocence concerns make his job harder.  We have often said that SHG’s dogma makes every other CDL’s job harder.  And especially ours.

Who’s right?

Update:  Pretty funny how the comments to SHG’s post of today that prompted this post are finishing up at the moment.  Apparently SHG has never heard of the four cardinal virtues.


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Malevolence v. Incompetence

It’s this Brady-Mooney thing again.

It’s easy to see why prosecutors blur the distinction between the two.  It’s a lot more difficult to understand why the defense bar does:

Until prosecutors are held personally accountable for concealing Brady, nothing will change. And that won’t happen as long as they’re immune from liability for their incompetence or malevolence.

“Malevolence” – that is, the intentional suppression of evidence tending to show a Defendant innocent by a prosecutor – has been a clear due process violation since 1935.  Because Mooney.  “Incompetence” – that is, prosecutors not knowing the evidence they have, or not realizing its exculpatory nature, and failing to disclose it – is sometimes a due process violation, and sometimes not, since 1963.  Because Brady.

The point being that this distinction is pretty important, not to mention settled law although it seems many who should know that, don’t.

Some time ago I wondered – worried, really – about the criminal defense bar being as unaware of this distinction as the organized prosecutor’s groups have intended for the last, oh, 30 years.  I further worried that the criminal defense bar might even be hostile to the idea of recovering this distinction.

Given the above quote, Greenfield is either unaware of the distinction, or hostile to it.  Neither is a good sign, inasmuch as SHG is nothing if not a representative sample of one highly regarded portion of the criminal defense bar.

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