SCOTUS updates

1.  The Supreme Court ruled this morning that juries must be unanimous.  You'd think this one would be unanimous from the Justices, but it was 6-3.  Alito wrote the dissent (no surprise), but Roberts and Kagan joined him on stare decisis grounds.

2.  The Court also granted cert from this 11th Circuit case (Van Buren) on the following issue:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

 Judge Rosenbaum wrote the opinion (joined by Martin and visiting judge Boggs), which starts this way:

Perhaps Dudley Field Malone said it best when he opined, "One good analogy is worth three hours’ discussion."* Or in this case, 15 pages of discussion. See infra at pp. 1199–205.

 Take, for example, this case.

"[A] lawsuit before a court" is a pretty big deal to most people. But a generic "question" or "matter," in common usage, maybe not so much.

That impression may change, though, if we clarify what we mean by "question" or "matter" in a specific context by analogizing to something else. So if we say that, for our purposes, to qualify as a "question" or a "matter," the question or matter must be of the same significance or scope as "a lawsuit before a court," a person would understand that we are not talking about just any old question or matter; we are referring to only questions or matters on the same scale as "a lawsuit before a court." To use a metaphor, the analogy here is a bridge to understanding.

In this case, though, that bridge was never built. The government charged Nathan Van Buren with honest-services fraud (through bribery) for undertaking an "official act" in his capacity as a police officer, in exchange for money. At the close of the evidence, the district court instructed the jury that an "official act" is a decision or action on a "question" or "matter." But it did not inform the jury that the "question" or "matter" in this context must be comparable in scope to a lawsuit, hearing, or administrative determination. The jury convicted Van Buren.

Since the jury was not instructed with the crucial analogy limiting the definition of "question" or "matter," and because the government itself did not otherwise provide the missing bridge, we cannot be sure beyond a reasonable doubt that the jury convicted Van Buren of the offense that Congress criminalized when it enacted the honest-services-fraud and bribery statutes. For this reason, we must vacate Van Buren’s honest-services-fraud conviction and remand for a new trial on that count. Van Buren was also charged with and convicted of computer fraud, and we affirm that conviction.

*Richard Nordquist, The Value of Analogies in Writing and Speech , ThoughtCo., https://www.thoughtco.com/what-is-an-analogy-1691878 (last visited Oct. 8, 2019). Along with Clarence Darrow, Dudley Field Malone defended John Scopes in the 1925 "Scopes Trial," formally known as State v. Scopes . Scopes Trial , Encyclopaedia Britannica, https://www.britannica.com/event/Scopes-Trial (last visited Oct. 8, 2019) ("Scopes Trial "); Malone’s Trial Speech (Full Text) , Historical Thinking Matters, http://historicalthinkingmatters.org/scopestrial/1/sources/44/fulltext/ (last visited Oct. 8, 2019) ("Malone’s Trial Speech "). In that case, Tennessee, led by William Jennings Bryan, prosecuted Scopes for allegedly teaching evolution at a Tennessee high school. Scopes Trial . Scopes was convicted and fined $100. Scopes v. State , 154 Tenn. 105, 289 S.W. 363, 367 (1927). The Tennessee Supreme Court then vacated the judgment since Tennessee law required a jury—not a judge—to assess any fine of more than $50.00, but in Scopes’s case, the trial judge had done so. Id. The Tennessee law Scopes was accused of violating was ultimately repealed in 1967. Scopes Trial .