“While some of the tales of woe emanating from the court are enough to bring tears to the eyes...

...it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

That was John Roberts' response in 1983 to White House counsel Fred Fielding, who asked Roberts to evaluate a proposal then in circulation to create a kind of super appeals court to assist the Supreme Court with its ostensibly pressing workload. The New Yorker has a lenghty and compelling article about Roberts here, called "No More Mr. Nice Guy." It's certainly worth a read and has lots of inside stories about Roberts.

Speaking of the Supreme Court, it just granted cert in Conrad Black's case to decide the reach of the "honest services fraud" component of the mail fraud statute.

Or, if it's really a slow day, you can check out how much the airport can see when it does "whole body imaging."

Jay Weaver covers Liberty City verdict

Check out the interesting piece in the Herald today.

Here's the intro:

Did booting a holdout juror off the panel seal the fate of the Liberty City Six?

That is a central issue in the courtroom documents released last week after the five guilty verdicts that attracted national attention.

Known only as Juror No. 4, the woman was accused by 11 fellow jurors, prosecutors and the judge of refusing to deliberate in the federal terrorism-conspiracy case. However, in jury notes the woman said she wanted to ''see this trial to the end'' but could not withstand the pressure she was facing to change her stance -- presumably ``not guilty.''
Had she held out, prompting a third mistrial in the controversial case, the five men now facing lengthy prison sentences could have walked out of the courtroom free, because the U.S. attorney's office in Miami had already said it wouldn't try them a fourth time.

U.S. District Judge Joan Lenard's removal of the juror will be the centerpiece of defense appeals, based on claims that their clients didn't receive a fair trial. After Juror No. 4, a black woman, was replaced by a black male alternate, the 12-member panel convicted five of the six defendants Tuesday on charges of conspiring with the notorious global terrorist organization al Qaeda.

''Her note clearly shows that the other jurors tried to convince her to change her beliefs about the case,'' said attorney Richard Houlihan, who represented the sole acquitted defendant, Naudimar Herrera.

''They didn't agree with her, but that doesn't mean she wasn't deliberating with them,'' Houlihan said. 'Her factual beliefs were at odds with the other jurors'. Absolutely it was going to be a hung jury if she had been allowed to stay on.

The article even has a Moran/Abbell reference, citing back to when Judge Hoeveler dismissed a juror:

To follow up, Judge Lenard reviewed a precedent-setting appeals court decision from a 1998 trial in which a Miami juror was removed from a 12-member panel because she refused to deliberate. U.S. District Judge William Hoeveler removed the woman because she spent the time working on her nails.

Lenard heeded Hoeveler's example, first by questioning the 11 other panelists about Juror No. 4. They all said she was turning her back on them when they sought her opinion, and most quoted her as saying that she doesn't believe in or trust the law.

Appellate lawyer extraordinaire Richard Klugh got all Survivor on us and had this to say about the law:

An appeals expert in South Florida said the ultimate question is whether a juror is doing his or her job.

''It seems that the jurors in this case tried to make that decision themselves, as they appeared deadlocked,'' said attorney Richard C. Klugh Jr., who reviewed the notes. ``What you don't want is a situation like [the TV show] Survivor, where the majority of the jurors vote to kick a juror off the island just because of preference.''

Klugh said the removal of the juror will be a ''substantial issue'' in the defense team's motion for a new trial and eventual appeals.

"43 stun-gunned at prisons' Take Your Kids to Work Day"

For real!

Justice Moreno??

Obama's short list for filling Justice Souter's seat on the Supreme Court has been leaked. And there's a Moreno on the list. Unfortunately, it's not our Moreno -- it's California Supreme Court Justice Carlos Moreno (that's him on the left). Here's the rest of list:

Solicitor General Elena Kagan
Michigan Gov. Jennifer Granholm
Homeland Security Secretary Janet Napolitano
U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood

This and that

1. Mike Tein is in the NY Times today, discussing the Liberty City verdict: “If you sledgehammer the square peg three times, eventually you’re going to blast it into the round hole. This isn’t a terrorism case; it’s an overcharged gang case.”

2. Judge Daniel T.K. Hurley imposed death sentences today on Daniel Troya and Ricardo Sanchez Jr. in the Turnpike murder case. It is the first federal death penalty case in the District. A snippet from the AP article:

"I must confess I have no confidence that Mr. Troya would not do this again if the opportunity presented itself," the judge said before reading the sentence.
Troya was shackled around the waist and guarded by four bailiffs. He offered an apology during the hearing, .
"First and foremost, to the victims and family members, I would like to apologize," he said. "Basically, I'm sorry to my family, the people that put faith in me to be good."
He also apologized for throwing a plastic water bottle at prosecutors in March after a jury recommended the death penalty for Troya and co-defendant Ricardo Sanchez Jr.
As he was led from the courtroom, Troya nodded to his mother, father and sister, who were silently crying.
The judge said Troya grew up in a "wonderful family" and added, "I have no idea how Mr. Troya got to be the person he is today, but he is an enormously dangerous person who has no regard for the taking of a human life."

3. And Jason Taylor re-signed with the Fins today.

Sentencing question

So will the Liberty City 7 6 5 get more or less time than Jose Padilla? Remember that Judge Cooke sentenced Padilla to 17 years and his co-defendants to less time. (The over-under line was 20 years). Certainly the Liberty City defendants will be citing to Padilla's case and arguing that they should get way less time. We'll set the over-under in this case at 17 years, the same sentence that Padilla received, for the lead defendant. What do you all think the appropriate sentences are now that they have been convicted?

Five of six convicted in Liberty City 6 case

Naudimar Herrera was acquitted (represented by Richard Houlihan). The rest, including lead defendant Narseal Batiste, were convicted. Initial Herald article here.

UPDATE (4:24pm): South Florida Lawyers has a funny post on the verdict. The Sun-Sentinel covers the case here. And the AP is also covering the case. Sentencing for the 5 convicted is set for July 26.

What an unbelievable case. Press releases by the Attorney General. Three really long trials. Two hung juries. Tens of millions of dollars spent. Two acquittals. An acquitted defendant being deported. Five convictions. Sick jurors. Replaced jurors. And now the appeals...

Should prosecutors hire jury consultants?

Michael Froomkin, blogging at Discourse, raises the very interesting question here. From his post:

If the US Attorney’s office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I’ve found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn’t raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender’s office got jury consultants too? If they do, couldn’t they make a non-aggression pact on the jury consultants and save us all some money?

Prosecutors use jury consultants in high-profile cases all of the time. Other than the cost, I had never thought that it was an issue, but Froomkin raises some interesting points. Thoughts?