I guess it shouldn't anymore because I really believe that Brady/Giglio violations happen in just about every trial where there isn't open-file discovery. The latest is a pretty shocking violation in the Casey Anthony case, which (I believe) would have resulted in a new trial had she been convicted. From the NY Times:
Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.
The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.
The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.
According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term “chloroform” was searched once through Google. The Google search then led to a Web site, sci-spot.com, that was visited only once, Mr. Bradley added. The Web site offered information on the use of chloroform in the 1800s.
***
“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”
Mr. Bradley, chief executive of Siquest, a Canadian company, said he even volunteered to fly to Orlando at his own expense to show them the findings.
Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.
“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”
“This was a major part of their case,” Mr. Mason added.
In big trial after big trial there continues to be Brady violations. Imagine what happens on a daily basis in state and federal court where there isn't a great deal of scrutiny over what prosecutors do. There really needs to be open-file discovery and more needs to be done when prosecutors do not comply with their constitutional obligations.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Tuesday, July 19, 2011
Monday, July 18, 2011
Federal Judge interviews in one week
Below is the schedule for next Monday. Any volunteers for a guest blogger to cover the interviews?
Jerald Bagley, 9am
William Thomas, 9:30
Beatrice Butchko, 10
Peter Lopez, 10:30
Robert Levenson, 11
Barry Seltzer, 11:30
John Thornton, Jr. 1pm
Caroline Heck Miller, 1:30
Robin Rosenbaum, 2
Marina Garcia Wood, 2:30
John J. O’Sullivan 3pm
Jerald Bagley, 9am
William Thomas, 9:30
Beatrice Butchko, 10
Peter Lopez, 10:30
Robert Levenson, 11
Barry Seltzer, 11:30
John Thornton, Jr. 1pm
Caroline Heck Miller, 1:30
Robin Rosenbaum, 2
Marina Garcia Wood, 2:30
John J. O’Sullivan 3pm
Too many lawyers, not enough judges
The NY Times has the story about the lawyers. The intro:
The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply.
Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.
It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.
In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.
And BLT has the story about Obama's judicial appointment team. What's wrong with the administration on this?
The article is part of a 42-page package on “Obama’s Judiciary at Midterm,” by political scientists Sheldon Goldman of the University of Massachusetts at Amherst, Elliot Slotnick of Ohio State University and Sara Schiavoni of John Carroll University. (Click here for the Web site of Judicature, which is subscription-only and published by the American Judicature Society.)
The political scientists write that the White House shut out them, too, as they tried to put together the package. Their work is the latest in a long-running series.
“Tellingly, no one from the White House Counsel’s Office was able or willing to meet with us — the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office,” the researchers write.
They add: “While the perspective from the White House Counsel’s Office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president’s judicial selection team. Other sources included interest group participants from groups along the ideological continuum.”
But too many lawyers and lack of federal judges seems like the same ol' stories again and again, no?
To me, the more interesting story is the Clemens trial and what's going to happen now that there was a mistrial. Here's Maureen Dowd's piece from the weekend:
But the trial had barely begun when those lawyers made what Tom Boswell, the Washington Post sports sage, called “the most shocking, inexplicable error in modern baseball history.” An error, Boswell said, that would cause the sports world and the legal community to “oscillate between pity and ridicule, incredulity and laughter, for years.”
With a high, close pitch at the government team, the judge declared a mistrial. “I think that a first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,” he said angrily.
Before the testimony started, Walton had said that an affidavit from Laura Pettitte was inadmissible. She had stated that her husband, Andy, who was Clemens’s teammate, told her that his pal had confided that he used human growth hormone. It was hearsay.
But on day two, the prosecutors played some video of the Capitol Hill hearing in which a congressman talked to Clemens about how compelling Laura Pettitte’s affidavit was. They even left her testimony on the monitors in the jury box while they gathered at the judge’s bench. It was such a chuckleheaded move that no one was sure whether the prosecutors had forgotten the judge’s ruling or were trying to sneak the testimony through a back door. Either way, it was another great day for defense lawyers and their clients who have already been convicted in the public eye.
“Government counsel doesn’t do just what government counsel can get away with doing,” the judge said sternly. “I’m very troubled by this. A lot of government money has been used to reach this point.” He added, “I don’t see how I can unring the bell.”
The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply.
Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.
It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.
In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.
And BLT has the story about Obama's judicial appointment team. What's wrong with the administration on this?
The article is part of a 42-page package on “Obama’s Judiciary at Midterm,” by political scientists Sheldon Goldman of the University of Massachusetts at Amherst, Elliot Slotnick of Ohio State University and Sara Schiavoni of John Carroll University. (Click here for the Web site of Judicature, which is subscription-only and published by the American Judicature Society.)
The political scientists write that the White House shut out them, too, as they tried to put together the package. Their work is the latest in a long-running series.
“Tellingly, no one from the White House Counsel’s Office was able or willing to meet with us — the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office,” the researchers write.
They add: “While the perspective from the White House Counsel’s Office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president’s judicial selection team. Other sources included interest group participants from groups along the ideological continuum.”
But too many lawyers and lack of federal judges seems like the same ol' stories again and again, no?
To me, the more interesting story is the Clemens trial and what's going to happen now that there was a mistrial. Here's Maureen Dowd's piece from the weekend:
But the trial had barely begun when those lawyers made what Tom Boswell, the Washington Post sports sage, called “the most shocking, inexplicable error in modern baseball history.” An error, Boswell said, that would cause the sports world and the legal community to “oscillate between pity and ridicule, incredulity and laughter, for years.”
With a high, close pitch at the government team, the judge declared a mistrial. “I think that a first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,” he said angrily.
Before the testimony started, Walton had said that an affidavit from Laura Pettitte was inadmissible. She had stated that her husband, Andy, who was Clemens’s teammate, told her that his pal had confided that he used human growth hormone. It was hearsay.
But on day two, the prosecutors played some video of the Capitol Hill hearing in which a congressman talked to Clemens about how compelling Laura Pettitte’s affidavit was. They even left her testimony on the monitors in the jury box while they gathered at the judge’s bench. It was such a chuckleheaded move that no one was sure whether the prosecutors had forgotten the judge’s ruling or were trying to sneak the testimony through a back door. Either way, it was another great day for defense lawyers and their clients who have already been convicted in the public eye.
“Government counsel doesn’t do just what government counsel can get away with doing,” the judge said sternly. “I’m very troubled by this. A lot of government money has been used to reach this point.” He added, “I don’t see how I can unring the bell.”
Friday, July 15, 2011
Should we be going bench more often?
The stats certainly say yes -- there are more federal bench acquittals than jury acquittals on a percentage basis. But the conventional wisdom is to go jury...
In any event, yesterday, Judge Moore said not guilty as the finder of fact in a visa fraud case. AFPDs Vanessa Chen and Helaine Batoff decided to go bench before Judge Moore and after he denied the Rule 29, he said that as the finder of fact he found the defendant not guilty.
In any event, yesterday, Judge Moore said not guilty as the finder of fact in a visa fraud case. AFPDs Vanessa Chen and Helaine Batoff decided to go bench before Judge Moore and after he denied the Rule 29, he said that as the finder of fact he found the defendant not guilty.
Thursday, July 14, 2011
“Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this."
Ouch. That was Judge Reggie Walton declaring a mistrial in the Roger Clemens case:
Judge Reggie B. Walton declared a mistrial in the Roger Clemens perjury trial today.
"He's entitled to a fair trial," said Walton. "He now cannot get it."
Lead defense attorney Rusty Hardin had asked for a mistrial because the prosecution revealed a statement to the jury that violated a pre-trial order. The prosecution also violated pre-trial orders when Assistant U.S. attorney Steven Durham talked about the Yankees' drug use during his opening statement.
Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial for the former baseball star who pitched for four teams, including the Red Sox, during his 24-year career. Walton told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.
"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.
He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."
In angry comments directed toward the prosecution, Walton said, “Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this. A lot of government money has been used to reach this point. The government should have been more cautious. I don’t see how I can un-ring the bell.”
By that, Walton meant that he could not figure out how the jury’s exposure to statements by Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, can be erased from their memory so it does not later influence decision-making. Laura Pettitte is someone designed to bolster the credibility of her husband, a former teammate of Clemens who was expected to be a key witness in the trial. Under dispute in the case is whether Clemens mentioned using human growth hormone to Andy Pettitte.
Judge Reggie B. Walton declared a mistrial in the Roger Clemens perjury trial today.
"He's entitled to a fair trial," said Walton. "He now cannot get it."
Lead defense attorney Rusty Hardin had asked for a mistrial because the prosecution revealed a statement to the jury that violated a pre-trial order. The prosecution also violated pre-trial orders when Assistant U.S. attorney Steven Durham talked about the Yankees' drug use during his opening statement.
Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial for the former baseball star who pitched for four teams, including the Red Sox, during his 24-year career. Walton told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.
"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.
He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."
In angry comments directed toward the prosecution, Walton said, “Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this. A lot of government money has been used to reach this point. The government should have been more cautious. I don’t see how I can un-ring the bell.”
By that, Walton meant that he could not figure out how the jury’s exposure to statements by Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, can be erased from their memory so it does not later influence decision-making. Laura Pettitte is someone designed to bolster the credibility of her husband, a former teammate of Clemens who was expected to be a key witness in the trial. Under dispute in the case is whether Clemens mentioned using human growth hormone to Andy Pettitte.
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