Thursday, June 22, 2017

Implicit Bias

One of the dirty little secrets of the criminal justice system is implicit bias.  This article by the Marshall Project shows what one district court is doing about the problem:
There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.
The source is a 10-minute video — believed to be the first of its kind — that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffrey Robinson, an attorney for the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”
Here's the video:

Will our District employ such a video?

Judge Milton Hirsch's Constitutional Calendar has this entry today:

On June 22, 1933, in the Limestone County, Alabama, Courthouse, Judge James Edwin Horton did one of the bravest and most principled things a judge can do.

Judge Horton had presided over the trial of Haywood Patterson, one of the "Scottsboro Boys." Patterson was a young black man charged in connection with the rape of two white women; and although it was perfectly obvious that there was no real evidence against him, he had been convicted with a recommendation for death. Horton had been cautioned by an emissary from the state capitol that if he were to grant the defense motion to set aside the verdict and order a new trial, there would be no chance of his being re-elected. "What does that have to do with the case?" he replied.

On that warm day in June, Judge Horton read aloud in open court every word of his order. It took over an hour. The defense motions were granted.

As he knew he would be, Horton was defeated overwhelmingly in 1934, and never served as a judge again. Haywood Patterson was re-tried in a case presided over by Judge William Callahan, who instructed the jury, inter alia, that if there was evidence of intercourse between a white woman and a black man, the intercourse was presumed as a matter of law to be rape.

If you'd like to be added to Judge Hirsch's email list, contact him at

Wednesday, June 21, 2017

Senior Judge Roger Vinson order cross removed from park

Senior Judge Roger Vinson has this interesting and sure-to-be-challenged order removing a cross from a Northern Florida park:

A cross that has stood in Bayview Park for the last 48 years must be removed within 30 days, a federal judge has ruled.
U.S. District Court Judge Roger Vinson ruled Monday that the cross in the city park violates the Establishment Clause of the Constitution and must be removed within 30 days.
The American Humanist Association, a group that works to protect the rights of humanists, atheists and other non-religious Americans, and the Freedom From Religion Foundation filed a lawsuit in 2016 on behalf of four Escambia County residents who said the cross at Bayview Park violated the separation of church and state.
Attorneys for the city of Pensacola and the American Humanist Association presented their oral arguments to Vinson on Wednesday.
Vernon Stewart, spokesman for the city of Pensacola, said on Monday that the city had received a copy of the order.
"We are currently in the process of reviewing this with our legal counsel," Stewart said. "However, Mayor Hayward is traveling, and he will be the one to ultimately decide how to proceed."
Monica Miller, senior counsel with the American Humanist Association's Appignani Humanist Legal Center, said in a press release that she was pleased with court's ruling.
"The cross was totally unavoidable to park patrons, and to have citizens foot the bill for such a religious symbol is both unfair and unconstitutional,” Miller said.

Monday, June 19, 2017

Should there be a retrial in Cosby?

Many have been asking why the Double Jeopardy Clause of our Constitution doesn't prohibit a retrial of Bill Cosby after his hung jury.  Although the Supreme Court decided this issue back in the early 1800s and said that Double Jeopardy doesn't kick in when there is "manifest necessity" for a mistrial (and generally hung juries constitute "manifest necessity"), perhaps it is time to revisit this issue as citizens should simply not be forced to fight the Government more than once on the same facts:
“The underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187–188 (1957).
 If the Government cannot prove its case beyond a reasonable doubt at a trial, that should be it: “A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.” United States v. Jorn, 400 U. S. 470, 479 (1971) (Harlan, J., plurality opinion).

Justice Stevens (in his dissent in Renico v. Leit) pointed out the lengths that judges at common law would push juries to reach a verdict because the thought of a second trial because of a hung jury was too much (cleaned up without footnotes):
At common law, courts went to great lengths to ensure the jury reached a verdict. Fourteenth-century English judges reportedly loaded hung juries into oxcarts and carried them from town to town until a judgment“‘bounced out.’” Less enterprising colleagues kept jurors as de facto “prisoners” until they achieved unanimity. The notion of a mistrial based on jury deadlock did not appear in Blackstone’s Commentaries; it is no surprise, then, that colonial juries virtually always returned a verdict. Well into the 19th and even the 20th century, some American judges continued to coax unresolved juries toward consensus by threatening to deprive them of heat, sleep, or sustenance or to lock them in a room for a pro-longed period of time.
Mercifully, our legal system has evolved, and such harsh measures are no longer tolerated. Yet what this history demonstrates—and what has not changed—is the respect owed “a defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). Our longstanding doctrine applying the Double Jeopardy Clause attests to the durability and fundamentality of this interest.
 In our own District, there was a mistrial for a defendant last week after an 8-week mortgage fraud trial.  The prosecution should not be permitted to retry that defendant.  It's just not fair to have to fight the power of the Government a second time even if the mistrial was necessary because of a hung jury. 

Friday, June 16, 2017

RIP Phyllis Kravitch

RIP 11th Circuit Judge Phyllis Kravitch. She was 96 and was quite a woman. From the Daily Report:
When told she couldn't come to court, a white girl in a Southern town sneaked up to the courtroom's "colored" balcony in the 1930s to see her father defend an unpopular client.
Long before Harper Lee wrote about Atticus and Scout Finch in "To Kill a Mockingbird," a teenage Phyllis Kravitch yearned to watch her father work in the Savannah courthouse. Kravitch abandoned the idea of becoming a ballerina.
Kravitch learned from her father, lawyer Aaron Kravitch, that everyone deserves equal treatment under the law, although neither law nor custom was granting it to African-Americans or to women in those days.
 Graduating from Goucher College in 1941, Kravitch wanted to attend Harvard Law School, but it wouldn't admit women for another nine years. (African-American men had been getting Harvard law degrees since 1869.) At other elite law schools, women were admitted but were ignored or marginalized by professors.
So Kravitch went to the University of Pennsylvania law school. At the top of her class after her first year, she was elected to Law Review and graduated in 1943, having slipped to the No. 2 rank in her class.
She applied for clerkships in federal courts, but no judge would hire a woman. She did get an interview at the U.S. Supreme Court, which had no female clerks, she told a 2009 luncheon gathering sponsored by the Atlanta chapter of the Federal Bar Association. Kravitch didn't name the justice who interviewed her but said he told her that she was his second choice, the first one being a man with a Harvard law degree.
She sought work at law firms in New York and Philadelphia but again was turned away because of her gender or, in at least one case, because she was Jewish. So she returned to Savannah to practice law with her original mentor.

Wednesday, June 14, 2017

Ervin Gonzalez

Curt Miner, one of Ervin Gonzalez's partners at Colson Hicks, sent this very nice email to his firm which captures Ervin:*

I walked to Starbuck’s a little while ago and came across this gentleman holding this sign out front.  His name is Chaunce O’Connor.  I introduced myself and thought maybe he had been a client of Ervin’s.  I asked him how he knew Ervin.  Chaunce said that he sits in his wheelchair out in front of Starbuck’s often and that Ervin is the only person in a suit that had ever stopped to take the time to talk with him.  He said that he would often see Ervin going to get coffee and that Ervin would always remember his name and stop to ask how he was doing.  He said he was sad today so he went to the drugstore to make this sign.  Chaunce asked me to pass along his condolences to everyone at the firm.  He offered his help if we ever need it because, he said, Ervin would have helped him if he ever needed it. 

[Sorry, the picture isn't uploading from the road. I will try again later.  The sign says, "We love Ervin. #1 Attorney." --DOM]