The Criminal Lawyer

“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.

18 U.S.C. § 1346 expands the definition of mail & wire fraud to include “a scheme or artifice to deprive another of the intangible right of honest services.” That’s short and sweet, but what does it mean?

The courts have been left to define the crime for themselves. Unfortunately, they differ wildly in what the theft of honest services means. The Fifth Circuit says it’s only a crime if the deprivation of services was also a crime under state law. The Seventh Circuit says the crime is when someone abuses their position for private gain. The Third Circuit says gain is irrelevant.

In general, they agree that employees and public officials have a duty to act only in the best interest of their employers and constituents. But there are lots of ways to act otherwise, and the courts seem to agree that not all of them ought to be criminalized. There is a spectrum of behavior, ranging from the socially acceptable to the abhorrent. Where the line ought to be drawn is undefined and uncertain.

So the Supreme Court finally had a chance to clear it all up, define what “honest services” means, and give straightforward guidance to the courts and to all the employees and officeholders out there. Sorich v. United States, No. 08-410 came to the Supremes on a cert petition, asking them to define the crime and settle the issue at last. That’s what the Supreme Court likes to do, after all — if the circuits can’t agree, it the Court’s job to define the correct approach.

Instead, the Supremes punted, and denied cert.

Scalia wrote an intense dissent, pointing out that this is precisely the kind of issue that the Court ought to resolve, that the split among the circuits is causing confusion in the law, and that real injustice is resulting. “It seems to me,” he wrote, “quite irresponsible to let the current chaos prevail.” We can’t help but agree.

“If the honest services theory… is taken seriously and carried to its logical conclusion,” Scalia pointed out that all kinds of actions would be criminal. Not all ought to be. “A state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection,” a perfectly normal and expected aspect of electoral politics, would be a federal crime. “A mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation,” a perhaps obnoxious act, but one hardly worthy of punishment, would also be included. “Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.”

“What principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified.” Failing to define what the crime actually means invites unjust prosecutions by “headline-grabbing prosecutors.” Furthermore, nobody knows if their actions would be considered criminal or not, and “it is simply not fair to prosecute someone for a crime” that won’t be defined until the judge’s ruling that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?”

Scalia closed with an excellent dictum, quoting from another useful dissent — that of Hugo Black in Green v. United States, 365 U.S. 301, 309 (1961) — “Bad men, like good men, are entitled to be tried and sentenced in accordance with law.” It is truly unfortunate that the Supreme Court has passed on an excellent opportunity to ensure just that.

Omar al-Bashir seized power of the Sudan in 1989, and has ruled ever since as the military dictator of one of Africa’s most ruthless regimes. In the Darfur region of western Sudan, a war has raged for about five years, with government troops and proxy fighters committing massive bloodshed against rebel groups as well as civilians and entire villages seen to be sympathetic to the rebels. Despite enormous outcry from the rest of the world, and pressure from the U.N. and powerful nations, al-Bashir has shown no inclination to temper or cease the bloodshed. On the contrary, it appears that his regime has only ramped up the violence in a war that is estimated to have killed hundreds of thousands of human beings through murder, combat, starvation and disease.

But earlier this week, al-Bashir announced a unilateral ceasefire.

He did so, not because of governmental pressure or diplomacy, but because the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, asked for al-Bashir to be charged personally with multiple counts of genocide, crimes against humanity and war crimes.

Charges have not been formally brought, but the ICC is expected to go forward soon. If he is formally charged, he will be the only head of state to face ICC criminal proceedings. This would harm his position at home, especially if he were to be prosecuted for genocide, and if the charges were to stick. Despite appearances, al-Bashir is believed to truly fear a conviction under international criminal law.

To avoid that possibility, al-Bashir took advantage of a technicality permitting the U.N. Security Council to defer legal action. China, one of the five Security Council permanent members, is tight with its major oil supplier, and would likely go to bat for Sudan. Russia, another permanent member, has significant economic ties to Sudan, particularly as the supplier of weapons and attack helicopters used by the regime to such deadly effect.

He still needs to get the approval of the United States, Britain and France, however, if he wants to get a deferred prosecution under Article 16 of the Rome Statute (which established the ICC in 2002).

We know what you’re thinking — these three modern, civilized, Western powers would never go along with that. Well, you might be wrong. Letting the ICC prosecute a head of state would be a terrible precedent for the U.S., which routinely declines to be held to “international” standards of conduct. Britain and France are perceived as open to “positive responses” that make the problem go away.

Hence this week’s ceasefire. It’s a “positive response” that might help appease Britain and France. There’s more al-Bashir can do, of course. Sudan’s Minister of Humanitarian Affairs — the person responsible for the aid effort to Darfur — is already indicted on 51 war crime counts. Throwing the minister to the wolves would be another nice gesture.

And if all else fails, he can just terminate Darfur aid, kick out UNAMID (the wholly ineffective joint U.N.-African Union peacekeeping force), and then blame the resulting death and suffering on the West. That could work, too.

So far, however, it looks like he’s taking the plea. The world is watching to see if the ICC will actually be effective in halting the ongoing tragedy.