A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an act of war, not a home-grown crime.  Criminal procedure and warfare are two entirely different things.  The courts, criminal law and law enforcement are not in the business of proactively preventing violence from taking place; they only react, after the fact.  Law enforcement tracks down whodunit.  The law prescribes the rules that law enforcement must follow, and protects the rights of individuals who are suspected or charged with crimes.  It makes no sense to constrain the gathering of military intelligence and the carrying out of warfare by making it comply with the rules designed to protect the rights of criminal defendants.  It makes no sense to get the courts involved in the first place.

When we were a kid, we lived for a few years in Saudi Arabia.  We arrived a few months before the Grand Mosque in Mecca was seized and the American hostages were taken in Iran.  We were there for the start of the Iran-Iraq war, the shooting of the Pope, the murder of Sadat.  We left soon after the Hama massacre, Israel’s withdrawal from Sinai, the death of King Khalid, and the arrival of U.S. Marines in Lebanon.  It was an eventful place to spend one’s formative years.  One of the older kids we knew there desperately and sincerely wanted to become a terrorist.  We have no idea why — he was from a good background and neither poor nor stupid.  Let’s say he did.  He’d be in his mid-40s now.  If he’s over in Afghanistan, he might be managing part of the fight by al-Qaeda or Taliban groups against the U.S.  He might be a great source of intelligence if he’s captured.  He might be someone they’d never want to release back into the world.  What to do?

Let’s say he’s captured in a way that would totally have violated his Fourth Amendment rights if it had been a civilian arrest.  Let’s say everything known about him comes from sources it would be insane to reveal.  Let’s say he’s not bloody likely to disclose any of his own knowledge voluntarily.  If he’s to be tried in a civilian court, he’s going to go free, and no useful intelligence will be gotten.  If the goal is to punish him for his crimes, then the military and our intelligence services will have to dramatically reduce their effectiveness in order to protect rights he doesn’t even possess.  If the goal is instead to prosecute the war, gather the necessary intelligence to do so effectively, disrupt the enemy’s command and control, and prevent this guy from fighting again, then using civilian courts would frustrate all of that.

It’s bad enough that seasoned commanders in the field now have to have some wet-behind-the-ears JAG lawyer okaying practically every combat decision, to comport with international law that probably doesn’t even apply in the first place.  To add the constraints of our constitutional protections and the often convoluted jurisprudence that goes with it…  That’s not how wars are won.

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Some terrorist acts, a small minority, are perfectly appropriate to be prosecuted in the civilian courts.  These are acts, not by an organized enemy, but by one-off individuals.  Timothy McVeigh, or the Unabomber, or the D.C. sniper.  Serial killers and mass murderers.  They may have had a political cause underlying their actions, but they’re not warfare.  The police can track down whodunit, follow the rules, and the bad guy gets punished for what he done.

But that’s not what most Americans think of when they think of terrorism.  Terrorism means large organized groups of people who plan and commit acts of war, for the same reasons that any other act of war is committed.  Terrorism isn’t one guy losing his shit and shooting up a school.  Terrorism is a guy who’s been launched by Hamas or al-Qaeda or Farc, trained by them, armed and supported by them, to commit violence and mayhem on their behalf.  Terrorism is equivalent to war by a non-governmental organization.

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Now, war certainly can be fought in the courts.  The islamists are actually getting quite adept at “lawfare,” as we’ve also discussed elsewhere (and a little bit here, too).  It’s a neat trick, whereby those who do not have a rule of law, and despise those countries with a rule of law, nevertheless use that very law to achieve their policy ends. 

Kennedy’s comments, unfortunately, play right into their hands.  This is precisely the attitude that islamist lawfare relies upon.

It’s hard to avoid that attitude, of course.  We’re civilized, after all.  We do value the rule of law.  We do expect all of us to be subject to the law, no matter who we are.  It’s what separates us from tyrrany and despotism.  It’s what ensures our cherished freedoms and liberties and opportunities and protections.  It’s what makes us civilized.

Terrorist organizations and their supporters take advantage of that.  They use our courts and our laws and our protections as a weapon against us.  (To his credit, Obama shut down a little of that last week, by signing the libel tourism law, and that’s a good start.)  They call it “legal jihad” or “soft jihad.”  They use lawsuits to shut down opposition.  They cynically take advantage of their opponents’ sense of justice and fair play, to win concessions and control their message.

Kennedy’s comments can only give encouragement to such an enemy.

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.

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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.

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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.

We’re taking the week off to go camping with the wife and kids up in Maine.  With any luck, we won’t see a computer till we return. 

We know you wanted to read what we’ll have to say about the Blagojevich verdict when it comes down, or about the latest absurd contretemps in the law.  Sorry, but you’ll have to wait.  To tide you over, we are thrilled that the jury did the right thing, we are appalled that the jury failed in its duty, we think the new law is stupid, we think the new law is just fine no matter what everyone else is saying, we think the court made the right decision must missed the point, we think the court’s decision is at odds with its overall jurisprudence, we think a burrito would taste really good right about now, and we know for a fact that our readers are the best-looking folks in the whole blawgosphere.

See you when we get back!

So we’ve been hearing about this new blog, “UnemployedJD.com,” where some guy named Ethan is documenting his hunger strike “to bring awareness to the concerns of [his] classmates. Their primary concerns are inaccurate employment statistics, ineffective career counseling, and rising tuition costs. [His] intention is to have these concerns addressed by law school administrators.”

Really?  A hunger strike?  Because most law students aren’t guaranteed a high-paying job on graduation?  We figured it had to be a joke.  Some hipster irony, or an Onion article being taken seriously, or something like that.  But no, it turns out this kid is totally serious.  (Well, not totally.  He’s letting himself drink juice.)

Putting aside his sincerity, it’s a stupid tactic.  It’s not as if awareness needs to be raised — the news has been saturated for a couple of years now with stories of law firms cutting back, not hiring, and law schools continuing to pump out graduates without jobs.  And it’s not a problem that law school administrators can fix, much less one that they ought to fix.  It’s up to the students, not the school, to make sure they’ve built the necessary transcript and resume to get the job they want.  The school can provide the opportunity, but only the student can do the work.  It’s not the school’s fault if the student didn’t do what had to be done.

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Here’s the deal: High-paying entry-level law jobs are extremely rare.  They are offered to the top sliver of students from the top sliver of “national” law schools.  Top students from regional schools will be in the running for local firms, but not for firms in other parts of the country.  And if you’re not a top student from a top school, you can forget about getting a big-money job.  Period.

Of course, if you’re going into the law for the money, you don’t belong in the law.  There’s nothing wrong with making a good living as a lawyer, but if that is the reason for wanting to be lawyer you simply don’t belong in the profession.  People who are going into law school because it seems like a meal ticket are doing it for the wrong reasons.  Ditto for people who go to law school by default, because it seems like a safe placeholder until they figure out what they want to do with their lives or until the economy picks up again.  They’re wasting all that time and money on law school, for all the wrong reasons.

And if you’re going to a lesser law school, in order to make the big bucks when you get out, you’re not just wrongheaded but stupid.  The school you go to really does matter to what kind of job you get on graduation.  If you weren’t good enough to even get into a top school, what makes you think you can compete with those who not only got in, but outperformed everyone else who also got in?  To think that somehow you’re entitled to a high-paying job after graduating in the bottom of your class from a second- or third-tier school… that’s beyond unrealistic.

Apart from the money, nobody has ever guaranteed that simply going to law school will result in a job.  No law school has ever made that representation.  And it is just silly and inane for a prospective law student to decide to go to law school with the expectation that employment is guaranteed on graduation.  Even in the best of times, that’s wrong.  To think that in the job market that we’ve had for the past few years is beyond dumb.  It shows that one didn’t do one’s homework before making a huge life decision.  The law requires intelligence and judgment, and that kind of thinking is yet more proof that one doesn’t belong in the profession.

Also, law schools don’t exist to get people jobs as lawyers.  They exist to meet the demand of people who want a law degree.  Whether people want that degree for all the wrong reasons is not really the law school’s fault.  Someone wants the education, they’re more than willing to provide it.  There is a huge demand for a law degree, even (or perhaps especially) in tough economic times.  The law schools did not create that demand.  They merely serve it.  (And in so doing, they often become huge cash cows for universities — they can pack in a few hundred students per class at staggering tuition, which more than covers the cost of a small faculty and a library.  It costs a bit more to operate an ABA-accredited school — oh, were you considering going to an unaccredited school?  Really? — but even there the profit margin is still quite high.)

The biggest part of the deal is this: The law is an extremely competitive profession.  If you want the good jobs, if you want the high pay, you’re going to have to earn it.  You’re going to have to compete against all those other people applying to law school, and get into a good one.  You’re going to have to compete against everyone else in your class to get the best grades, get on law review, edit your law review, do moot court, and otherwise be one of the stars of your school.  You’re going to have to compete for summer jobs.  You’re going to have to compete for your first job.  You’re going to have to compete against everyone else out there who wants your job.  You’re going to have to compete for clients — good clients come to lawyers almost exclusively based on reputation, and reputation can only be earned by results.  It’s not about your potential, it’s about what you actually do.  None of this is the kind of competition where someone else can make you lose; it’s not a battle.  Nobody’s pushing you down as you all struggle to reach the top.  There is always room at the top for anyone good enough to get there.  It’s just a matter of whether you’re good enough.

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Ethan’s blog has an account of a typical victimized student, an example of what he’s fighting for.  You can read it here, but we can sum it up for you pretty quickly:  (1) The student went to law school, not because he actually wanted to be a lawyer, but because his friends were going to graduate school, and he didn’t want to be a teacher or a doctor, so he opted for law school by default.  (2) The student got into a lower-tier school, and figured that even with a $60K salary he “couldn’t afford not to go.”  (3) At this less-than-impressive school, he got even less-impressive grades.  He doesn’t seem to have done anything exemplary, like law review or moot court or a clinic.  (4) He did an internship with a solo practitioner his first summer, but didn’t work his second summer, and didn’t line up a job before graduation.  (5) He flunked the bar exam.  (6) Once he finally did pass the bar, he finally got in touch with the career counselor at his law school, who could only provide leads for jobs he wasn’t qualified for (it’s hard to imagine any jobs that he was qualified for).  Somehow, the fact that he could not get a job was the law school’s fault.

In the comments to that post (some of which are priceless for their inanity), others post their own horror stories.  “Angel the Lawyer” wanted to work here in NYC, but the best school she could get into was a regional school that had nothing to do with the Big Apple.  She racked up massive student loans anyway.  Only through nepotism — and even then only by fighting tooth and nail — has she been able to work in NYC since graduating 10 years ago.  And then she got laid off, and only blogs now.  Now she wishes she never went to law school, and whose fault is it?  “Law schools need to be held accountable for their shortcomings and misinformation,” she says.

So what we seem to have here is a bunch of people who went to law school for all the wrong reasons, with unrealistic expectations, and then didn’t even do all that well anyway — and who are now angry at their school because there isn’t some cushy job waiting for them on the outside?  Correct us if we’ve got this wrong, but that seems to be pretty much it.

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Well, we’re just not sympathetic.  It’s nobody’s fault but your own if you decided to go to law school for all the wrong reasons.  It’s nobody’s fault but your own if you didn’t assess the demand for your services before entering the market.  It’s nobody’s fault but your own if you didn’t do what it takes to get into whatever law school you needed to get into to pursue the career of your choice.  It’s nobody’s fault but your own if you didn’t do what it takes to do well in law school (even the best law schools aren’t really all that difficult — the winners aren’t necessarily the brightest, but rather those who put in the time to do all that work, starting before Day 1).  It’s nobody’s fault but your own if you didn’t pass the bar (the bar is not that high, folks).  It’s nobody’s fault but your own if you didn’t prepare yourself to get the job you wanted.  It’s nobody’s fault but your own if you didn’t earn the transcript and resume that employers are looking for.

If you did all that, and you still can’t find a job — well, then we do feel bad for you and it’s probably not your fault.  But you’re not one of the people this guy is doing his hunger strike for.

Ethan’s doing his strike for the wrong reasons, on behalf of the others who’re doing it for the wrong reasons.  And it’s not going to get any results.  We hope he gives it up before all that juice gives him hyperglycemia.