Thursday, May 26, 2011
Posted by David Markus
American Idol, Dancing with the Stars, Oprah...
Oh, you came here for law stuff. Fine:
1. Judge Dubina's daughter doesn't like the health care law. Here is Martha Dubina Roby's Facebook page. She is a freshman congresswoman from Alabama. Oral argument is in Atlanta on June 8, and the panel is Judges Dubina, Marcus and Hull.
2. Goodwin Liu has given up his bid to be on the 9th Circuit. The Senate should be ashamed.
3. Alan Mendelsohn wants a short sentence.
4. The 11th Circuit debates what "he" means in a prosecutor's closing argument. From Judge Wilson's dissent:
Attempting to bolster the credibility of Mark Duke’s cooperating codefendant, the prosecutor argued the following to the jury:
[Duke’s co-defendant] told the truth, ladies and gentlemen,
and here is how we know it, there’s a witness that you
heard from but he didn’t come in here and talk to you from
this witness stand. After he shot, stabbed, and cut the throat
of Randy Duke, he took Randy Duke’s blood with him
throughout that house.
In doing so, the prosecutor impermissibly commented on Duke’s decision not to testify, in violation of his Fifth Amendment right against self-incrimination. The majority is willing to accept the State’s explanation that the “he” the prosecutor was referring to was not really Mark Duke but was Randy Duke’s “blood.” It is willing to accept that the “blood” is a male “witness” that the jury “heard from.” It is willing to accept that the prosecutor used “2 he” in one sentence to refer to blood and “he” in the next sentence to refer to Mark Duke, without ever indicating any possible change of subject. This makes no sense because it would mean that Randy Duke’s blood “shot, stabbed, and cut the throat of Randy Duke” and that Randy Duke’s blood took itself “throughout the house.” The majority accepts this story even though the State could not consistently or coherently articulate such an argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke. I respectfully part company with my colleagues in accepting this logic.
I do not see how the jury could have possibly interpreted this statement as anything but a comment on Mark Duke’s failure to testify. Accordingly, I dissent.
at 9:36 AM