Posts Tagged ‘mistrial’

Feeling Left Out

Thursday, May 12th, 2011

You’ve probably heard, by now, of this Joseph Rakofsky kid.  You know the one — the newly-licensed lawyer who took on a murder trial without any trial experience, who is alleged to have told his investigator to “trick” an eyewitness into denying having seen anything, and whose performance was so bad that the judge had to declare a mistrial.  You know the one — the guy who, after causing that mistrial and getting reprimanded by the judge, went online and bragged about the mistrial like it was some kind of success.  You know the one — the one who quickly became a laughingstock, as soon as the story got picked up by the ABA Journal, the Washington Post, and half the blawgosphere.

Well, you’d think he’d have wised up.  You know, let it all blow over.  Take the time to rebuild his reputation with hard work and diligence.  Memories are short.  Old news gets buried even on the seemingly permanent internet.  It was already happening — it’s only been a month or so since the brouhaha, and he’d already dropped off the radar.  It could have all been forgotten — even perhaps forgiven, if he’d manned up, admitted his error, and moved on.

But no.

Instead of doing the smart thing, this Rakofsky kid demonstrated once again some amazingly poor judgment, and filed a lawsuit.  Against the ABA Journal, the Washington Post, and half the blawgosphere.  In other words, everyone who covered or commented on his doings.

Brilliant.

So now, everyone who’s already demonstrated a willingness to write about his conduct, now has yet another thing to write about.  And you’d better believe they’re gonna.  We expect to be sipping our coffee in the morning and chuckling ruefully at responses by some of the numerous defendants.  As they’re some of the most heavily-read blawgs out there, we expect that by this time tomorrow, the name “Rakofsky” will have attained the same tragic/comedic status as “Santorum.”  Yet another shining example of the Streisand Effect.  Well done.

And of course we’re nowhere to be seen on the complaint.  Lucky us, we were on trial and not posting too much, and it blew over pretty fast.  But now being on that complaint is going to be something of a badge of pride.  And we’re not there.  Dammit.  Maybe he’ll amend his complaint to include us now, or maybe one of the defendants can do one of those… uh, civil procedure thingies… where you bring someone else into a case?  Whatever.

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For those who want to read the complaint (and we can’t advise it — it’s so badly written it’s actually painful to read) you can find it on Scribd here, under the delightful title “Rakofsky v Internet.”  Sure to become an instant classic, never to be forgotten.

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UPDATE: It seems there already is a badge of honor, compliments of Amy Derby.  Link.

More Google Mistrials

Friday, January 21st, 2011

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 (more…)

Double Jeopardy Deadlock

Monday, March 29th, 2010

 

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….”

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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 (more…)

No More Google Mistrials: A Proposal for Courts to Adapt to Modern Life

Wednesday, March 18th, 2009

google-mistrial.png

“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.

Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.

The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.

So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.

But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.

There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.

Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.

It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.

It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.

That’s a simple fix, and an intellectually honest one.

What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.

So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.

The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.

In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.

So no more Google mistrials, please. Efficiency would be improved, and justice would be served.