Funny Things Happen At Trial

Last week, the Supreme Court gave permanent resident Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, leading to Lee's deportation.  The twist here is that Lee's chances to win at trial were almost nil and therefore, he would get deported anyway.  So can a lawyer be ineffective for telling a defendant to plead guilty where the proof of guilt is overwhelming?

Chief Justice John Roberts, in his opinion for the court, said yes and explained that pleading guilty was a certain deportation and going to trial was an "almost" certain deportation.  Had Lee known this, he would have opted for trial even in the face of overwhelming odds.  I particularly liked NACDL's* amicus (available here), which explains that "funny things happen" at trial:

For all types of litigants, “there is no such thing as a sure winner . . . at trial” and “juries are inherently unpredictable.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 739–40 (N.D. Ill. 2014). Taking a case to trial may be more than just a “Hail Mary.” See Pet’r Br. at 30. Instead, it is a key part of criminal procedure that has nothing to do with “whimsy” or “caprice,” and everything to do with putting the government to its proof. Strickland v. Washington, 466 U.S. 668, 695 (1984).
Funny things happen on the way to, and at, the forum.12 The annals of criminal law are replete with unexpected developments and shocking results in the courtroom. A variety of factors influence a jury ver- dict, or a non-verdict. Trial practices affect trial out- comes. For example, juror note taking practices, the jury’s ability to ask the witnesses questions, the jury’s opportunity to discuss evidence before delibera- tion, jury instructions, juror sequestration, and the length of the deliberations may affect the outcome of a trial. Paula L. Hannaford-Agor, When all eyes are watching: Trial characteristics and practices in noto- rious trials, 91 Judicature 197, 200 (2008). Mr. Lee may reasonably weigh these factors, as well as those that affect a hung jury, against accepting his plea bargain. See Paula Hannaford-Agor et al., Why Do Hung Juries Hang? 251 Nat’l Inst. Justice J. 25, 26– 27 (July 2004). Many factors influence a hung jury, separate from jury nullification—the quality of the evidence, the degree to which jurors believe that the law they are instructed to apply is fair, and the jury deliberation process. Id. For example, a survey in the early 2000s revealed “39 percent of potential white jurors and 50 percent of potential black jurors would be ’very willing’ or ‘mostly willing’ to acquit, despite evidence of guilt, in a first-time, nonviolent drug pos- session case.” DeBartolo, 790 F.3d at 779 (citing Lawrence D. Bobo and Victor Thompson, “Racialized Mass Incarceration: Poverty, Prejudice, and Punishment,” in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010) (Fig. 12.9)).
 

*Full disclosure -- I am on NACDL's Supreme Court amicus committee, but did not participate in this brief.

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 milton.hirsch@gmail.com

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.

The Bayview Park Cross is the subject of a lawsuit over religious freedom. The American Humanist Association and the city of Pensacola gave oral arguments Wednesday in federal court in Pensacola. (Photo: Tony Giberson/tgiberson@pnj.com)

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. 

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.

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]

SCOTUS Term wrapping up.

Like teachers, Supreme Court Justices get the summer off. I'm not sure why this tradition started, but it's weird to me. Why don't other judges get the summer off? Why not lawyers? Not too long ago, Miami courthouses shut down in August and lawyers took that month off (because the courtrooms were just too hot). Even after AC, the tradition continued for a while, but not anymore.

Anyway, unlike teachers, Supreme Court Justices have quite a bit of assets (their base salaries are $250,000). SCOTUSblog summarizes some of those here:

• They get presents. Alito received a “bronze cast of hand” valued at $3,000 from Bottega Mortet, an Italian sculpture studio whose website advertises an “Artisan Hand Project.” There is no way to know whether the cast was of Alito’s own hand.

• ***

• They have very few debts. Last year the average U.S. household had debts totaling over $132,000. But seven of the eight justices – Alito, Breyer, Ginsburg, Kagan, Kennedy, Roberts and Thomas – reported that they had no liabilities at all, while the eighth – Sotomayor – listed only one liability, a mortgage on a rental property in New York.

• But they have a lot of investments. Alito listed well over 100 investments and trusts, including mutual funds, municipal bonds and stocks. The forms provide only a range for the justices’ investments, but Breyer’s appear to total over $5 million. Roberts holds stocks in major companies such as Time Warner, Texas Instruments and SiriusXM, although he sold at least $250,000 in Microsoft stock at the beginning of January 2016. Roberts also reported at least $600,000 in bank accounts and over $600,000 in college savings plans.

• They own a lot of real estate. Breyer owns a house in Nevis in the West Indies – presumably the same one where he was robbed by a man with a machete in 2012 – valued at between $250,000 and $500,000. (Breyer reported only limited rental income, of $1000 or less, for the house for the year.) Breyer sold land in Concord, Mass., for at least $500,000 to Neil and Anna Rasmussen, who run a Massachusetts foundation that promotes historic preservation and natural resources conservation, but he continues to own property in Plainfield, N.H., valued at between $250,000 and $500,000. Roberts owns one-eighth of a cottage in Limerick, Ireland, valued at between $15,000 and $50,000, while Sotomayor’s rental property in New York is valued at between $1 and $5 million.

RIP Ervin Gonzalez (2 UPDATES)

RIP Ervin Gonzalez.

The awful news is making the legal community rounds this morning and everyone is shocked.



UPDATED with statement from Colson Hicks:

Colson Hicks Eidson Statement

"We are deeply saddened by the passing of Ervin A. Gonzalez, our beloved partner, friend and role model. Words cannot convey our grief, admiration, or affection for this pillar of our community. Our hearts and prayers go out to his wife Janice and his family and friends during this unfathomable time. A caring, warm, brilliant and masterful trial attorney, he set the standard for the profession in his compassion and vigorous advocacy for those who suffered grievances and injustices at the hands of others. He will be remembered for his intellect, skill and ability to befriend and defend the rights of people from all walks of life with a zest and dedication that was unrivaled. Ervin's passing reminds all of us that mental illness can strike anyone regardless of how accomplished or content they might appear. Like the Ervin we all knew and loved, he valiantly fought this personal challenge with unmatched effort. He simply was unable to win his hardest and final trial. It pains us to know he was suffering so terribly beyond his control.”

-Dean C. Colson

SECOND UPDATE:

Funeral Services
Tuesday, June 13th at 10:00 a.m.
Church of the Little Flower
2711 Indian Mound Trail
Coral Gables, FL 33134