Archive for the ‘Law’ category

Saturday Art: Jury Selection And The Art Of Voir Dire

January 21, 2012

Justice at work

Justice at Work
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Jury Selection And The Art Of Voir Dire

Voir dire means to speak the truth. We use the term to describe two legal processes, the process by which prospective jurors are questioned to select a jury and the process by which certain witnesses are questioned to determine if they are qualified to testify as experts and express opinions. This post will be about jury selection, a subject near and dear to my heart.

Which do you think is most important to win a jury trial?

(a) Jury selection,

(b) Opening statement,

(c) Direct examination,

(d) Cross examination, or

(e) Closing argument?

The correct answer is: (a) jury selection.

Why?

Because, if you do not select the right jury, you will have little chance to win, no matter how strong your case and how proficient you are with the other four skills.

How do you select a jury?

Let us begin with a clarification. Jury selection is a misnomer because each side actually selects the jurors whom they do not want on the jury.

How do you select the jurors whom you do not want on your case?

Hopefully, the panel of prospective jurors has filled out a juror questionnaire that you have had an opportunity to review before you begin to question them. I always prepared questionnaires tailored to the issues in my case. For example, if there had been extensive negative pretrial publicity, which was pretty common given the types of cases that I handled, I would include a short description of the case in the questionnaire and ask the prospective juror to write down what they had read or heard about the case and whether they had formed an opinion about my client’s guilt or innocence. Another example involves rape cases where you want to know whether the prospective juror, or a family member, or close friend has ever been raped.

You question prospective jurors individually using their answers on the questionnaire as a guide and, depending on their answers, you pass or challenge them for cause, or later use a peremptory challenge to get rid of them.

Challenges for cause are unlimited, but you must reasonably articulate a reason why you believe a prospective juror cannot be fair, impartial, and follow the jury instructions that are the law of the case. If your opponent objects to your challenge for cause, your challenge will turn into mini trial with you attempting to discredit the prospective juror whom you have challenged and your opponent attempting to rehabilitate him or her. Ultimately, the judge will decide whether to grant or to deny the challenge.

Warning: Keep in mind that, if you lose the challenge, you are going to have to use one of your limited number of peremptory challenges to get rid of the prospective juror whom you have just insulted in front of all the rest of the panel of prospective jurors by challenging his ability to be fair, impartial, and follow the court’s instructions. If you think you are going to lose the challenge for cause and possibly irritate the other members of the panel in the process, you should seriously consider passing the prospective juror for cause and later use one of your peremptory challenges to get rid of him.

Peremptory challenges are exercised silently by opposing counsel passing a sheet of paper back and forth and striking a prospective juror each time. Finally, delay striking someone whom you think your opponent may strike. If she does, you will have saved a peremptory that could mean the difference between winning or losing the case.

You do not have to explain why you challenged a prospective juror, unless the challenge appears to be systematically based exclusively on race, sex, or religious affiliation. If that appears to be the case and your selection is challenged, you will have to satisfy the judge that you had another reason.

In misdemeanor cases, each side gets 3 peremptory challenges. In felony cases, each side gets 6 peremptory challenges. In death penalty cases, each side gets 24 peremptory challenges.

I used to tell my clients to think of our peremptory challenges as bullets in a gun. We have to use them strategically so that we do not need one after we run out.

So, here is the strategy in a nutshell.

(1) Go through the questionnaire and identify the prospective jurors who appear to have strong personalities who, by reason of education, experience, or occupation appear to be capable of leading the jury. You must get rid of any of them who appear biased in favor your opponent or prejudiced against you or your client. No matter how good you are, you will lose, if you fail to do this.

(2) Identify any other prospective jurors who for any reason appear to be, or might be biased in favor of your opponent or prejudiced against you or your client. You can probably still win your case, if you leave them on the jury, so long as they do not influence other jurors to vote for your opponent’s case. Prioritize getting rid of them according to how likely you believe they will influence others.

(2) Focus on both categories of prospective jurors during voir dire and, if you confirm your initial opinion, try to set them up for a challenge for cause.

(3) Pass or challenge the prospective juror for cause. Occasionally, you will desperately want to get rid of a prospective juror who stubbornly refuses to admit they are prejudiced against you or your client, even though the prejudice is apparent. You will need to use a peremptory challenge to get rid of them, if that happens.

(4) Exercise peremptory challenges after a sufficient number of prospective jurors has been passed for cause, such that there will be enough of them to form a jury, plus alternates, if both sides exercise all of their peremptory challenges.

Selecting a jury is an art form that is not taught in law schools. Very few judges and lawyers appreciate how important it is and only a few of them know how to do it well. I worked very hard on developing this skill and I believe that is why I won approximately 80-90% of my trials.

You have to know your case thoroughly. You have to identify all of the potentially outcome-determinative factual issues before jury selection. Most of them will relate to witness credibility. You do not want jurors who will not believe you and your witnesses. If you are not planning on calling any witnesses — as might happen in a criminal case, if your client decides not to testify — you want jurors who will follow the jury instructions and not hold your client’s silence against him.

Here is an example regarding the presumption of innocence.

Defense counsel: Good morning, Mr. Jones.

Q: I am going to ask you a hypothetical question, sir. Let us suppose that you have to decide whether my client, Sandra Wade, is guilty or not guilty, and you have to make that decision right now, before you have heard any evidence. What would your decision be?

A: Uhm, I don’t know. I can’t make a decision without any evidence.

Q: I understand. I suppose like most folks, you want to be fair and hear both sides before you make a decision, right?

A: Yes, I want to be fair.

Q: Fair to both sides?

A: Yes, of course.

Q: Do you believe it is important to follow the court’s instructions?

A: Yes.

Q: Even if you disagree with them?

A: Yes, the judge told us they are the law of the case and I intend to follow the law.

Q: Even if you disagree with them?

A: Yes.

Q: Since this is a criminal case, the judge has instructed you that my client, Sandra Wade, is presumed innocent, right?

A: Right.

Q: What is your verdict right now, before you hear any evidence?

A: Uhm, Okay. I see what you mean. I guess I’d have to vote not guilty.

Q: Sounds like you aren’t sure. Are you certain you could do that? Because, if you can’t, you probably should not be a juror in this case. Do you understand why I say that?

A: Yes, you’re representing Ms. Wade and protecting her legal rights.

Q: Right. This isn’t personal. I just want to know if you can honestly — and I emphasize the word ‘honestly’ — presume Sandra Wade is innocent, even though she is charged with killing her husband while he was asleep. Lots of folks for one reason or another might not be able to do that and that doesn’t mean they are a bad person. It just means they shouldn’t be a juror in this case. How about you, sir?

Can you look her in the eye and honestly tell her that you presume she is innocent?

A: Yes.

Thank you, sir. Your Honor, I pass Mr. Cameron for cause.

Warning: Eye contact and body language are vitally important indicators that often are more important than the answers people give. For example, if Mr. Cameron had suddenly shifted his body position or been unable to look at my client when I asked him to look her in the eye, I would have known that I had to get rid of him, unless I was satisfied that he would not lead the jury.

INSIDER TIP: When in doubt while questioning prospective jurors during voir dire, ask why they said or did something. This gets them talking and you will find out a lot more about them, if you are listening, rather than trying to impress everyone with how smart and well spoken you are.

Namaste.

Cross posted from my law blog.

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Who Says? Hear Says! Exceptions, That Is

October 20, 2011

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.

Hearsay, Part Deaux: Frog Gravy Legal Case

October 19, 2011

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.

Namaste

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.

What The Hell Is Hearsay?

October 18, 2011

I will start with an example.

A witnesses an accident and later tells B that Igor Ivarson ran a red light and hit Peter Piper in a crosswalk, killing him.

Flash forward to a trial. Igor Ivarson is charged with negligent homicide and the prosecutor calls B to the stand and asks him the following question after establishing that B had dinner with A several hours after the accident:

What, if anything, did A say to you about the accident?

If you are representing Igor and you do not stand up and say in a commanding voice, “Objection, your Honor. The question calls for hearsay”, a hole should open up in the floor beneath your chair disappearing you forever into the Great Beyond From Which There Is No Return. This is an exceedingly grim place not unlike Hell.

B’s answer would be hearsay because he would be repeating what A told him and his answer would be offered to prove that Igor ran the red light and hit Peter Piper in a crosswalk. That is one of the fundamental questions of fact that the prosecution must prove beyond a reasonable doubt in Igor’s trial.

Igor’s right to confront his accusers via cross examination would be violated if A’s statement comes in because Igor’s lawyer cannot cross examine A since A is not on the witness stand. Equally important, A was not under oath when A made the statement and the jury cannot evaluate A’s credibility, if A is not present, questioned, and cross examined.

For purposes of the following definition:

A is the declarant or person who made the statement.

B is the witness in court repeating the declarant’s statement.

(Keep in mind that a statement can be oral or written and also includes non-verbal conduct, if such conduct was intended as an assertion. An example of conduct intended as an assertion would be nodding your head to indicate agreement in response to a question, like “Do you want to eat pizza tonight?”)

Okay, here’s the definition:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence (FRE) 801(c).

Since A did not make the statement while testifying at the trial or hearing, (he made it out of court before the trial), and A’s statement was offered to prove what the statement asserted, A’s statement is hearsay.

Simple, right?

Okay, what if A’s statement were offered for some other purpose? For example, let’s say it was offered to establish when A first knew about the accident. If that were the case, and that was a relevant issue, A’s statement would not be hearsay since it was offered for a purpose other than establishing the truth of the matter asserted in the statement.

This is a critical distinction that eludes oodles of judges and lawyers, not to mention law students. Don’t you make the same mistake.

By the way, sometimes judges will admit A’s statement, subject to a limiting oral instruction telling the jury that they may only consider A’s statement for the limited purpose of deciding when A first knew about the accident and for no other purpose.

Yah, sure. You betcha.

As if the members of the jury will ever remember that limiting instruction during their deliberations. Sheesh!

Now that you think you know what statements are hearsay, guess what?Some statements that fit the definition of hearsay are defined as not-hearsay.

Think of them as Jokers in a deck of cards.

What are these Jokers?

Hint: Not the football coach at the University of Kentucky.

FRE 801(d) identifies two types of non-hearsay statements:

(1) Prior statements by a witness, and

(2) Admissions by a party opponent.

A prior statement of a declarant who testifies at a trial or hearing is not hearsay if the witness is subject to cross examination about the prior statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

An admission by a party opponent is a statement by a party to a lawsuit that is offered by the party’s opponent. Note that only the opponent can offer the seemingly hearsay statement; the party who made the statement cannot offer it. For example, if Igor Ivarson confessed that he ran a red light and hit Peter Piper in the crosswalk, his statement is admissible as an admission by a party opponent, even though it is offered to prove the truth of the matter asserted in the statement.

Can the defendant offer his own statement for another purpose, in other words, to prove something other than the truth of the matter asserted in the statement?

Yes, for example, to prove that the person to whom he made the statement acted in reliance on that statement, if that is an issue in the case. I will provide a detailed example of this situation in my next post as this is exactly what happened in Crane-Station’s case.

Suppose Igor Ivarson told the police that he was not driving the vehicle that struck Peter Piper. Would his exculpatory statement be admissible to prove that he was not driving the vehicle?

Not unless the prosecutor, who is the party opponent, offered it and no prosecutor is that stupid. At least they are not supposed to be.

There is only one exception to this rule and that is based on a defendant’s constitutional right to present a defense. If the statement is the only exculpatory evidence available, he cannot be prevented from offering his statement by this rule.

Finally, a statement by a coconspirator in furtherance of a conspiracy is admissible against the coconspirator and other members of the conspiracy.

NEXT: Exceptions to the hearsay rule.

Any questions?

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.

Occupy: What To Do If You Are Subpoenaed To Testify Before A Federal Grand Jury

October 17, 2011

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of my readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.

Namaste

A grand jury consists of 17 to 23 citizens who generally meet once per week for a term of 18 months to hear witness testimony, review documentary evidence, and vote on issuing indictments, which is the formal legal term for the government’s charging document in a criminal case. The indictment lists the defendant(s) and each charge is set out separately in what lawyers refer to as counts identifying the criminal statute alleged to have been violated, the name(s) of the defendant(s) who is alleged to have violated the statute, the on-or-about date of the offense, and a very short description of the act that is alleged to constitute the crime.

Pursuant to the Fifth Amendment, all federal felony prosecutions must be by grand jury indictment, unless the defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information. This means federal prosecutors present their cases to a grand jury together with the indictment and ask the grand jury to review and approve the indictment.

The members of the grand jury vote on whether the government has presented sufficient evidence to establish probable cause that the defendant(s) committed the crime(s) charged in each count of the indictment. Twelve members must vote to approve the indictment, and if that happens, the foreperson of the grand jury signs and returns, or hands down the indictment, which is filed in the District Court Clerk’s Office. Grand juries rarely ever refuse to indict.

Grand juries meet in secret and its members take an oath never to discuss what happens inside the grand jury room. The only other people present in the room when the grand jury is in session are a court reporter who transcribes the proceedings, a federal prosecutor who presents the government’s case, the case agent who is the law enforcement officer in charge of the investigation, and the witness who is testifying. Witnesses may appear with counsel, but their attorney must wait outside the grand jury room while the witness is testifying. The witness must answer all questions truthfully under penalty of perjury. The witness can request a recess in response to a question in order to consult with counsel outside the grand jury room. The witness may refuse to answer any question on the ground that a truthful answer might tend to incriminate the witness, or lead to the discovery of evidence that might tend to incriminate the witness. Since the Fifth Amendment protects this privilege to refuse to answer, no witness can be punished for refusing to answer a question on the basis of asserting the Fifth Amendment. Properly subpoenaed witnesses who refuse to appear before the grand jury, or who appear but refuse to answer questions without asserting the Fifth Amendment, may be held in contempt of the grand jury and jailed until such time as they agree to answer the question, or the grand jury term expires, whichever happens first.

Let’s say Sally Jones is subpoenaed to testify before the grand jury on November 19, 2010. She contacts a lawyer and retains him to represent her. What does the lawyer do?

The lawyer contacts the federal prosecutor and asks her whether his client is a target, subject, or witness. Targets are people whom the prosecutor intends to charge in the indictment. Subjects are people whom the prosecutor might charge, but would prefer to use to strengthen the government’s case against the target(s). By use, I mean to testify against the target(s) at the grand jury and at the subsequent trial, if the target refuses to plead guilty and insists on going to trial. Witnesses have no potential exposure to liability in the underlying case.

If the prosecutor tells the attorney that the client is a target, the attorney tells the prosecutor that his client will be taking the Fifth to all questions and requests that his client be excused or released from the subpoena. Prosecutors usually agree to the request as there is no reason to have the target come in and refuse to answer questions. That would waste everyone’s time and a refusal to answer questions cannot be held against the witness who asserts the privilege. In other words, the grand jury cannot consider a witness’s refusal to answer as evidence of guilt.

If the prosecutor tells the attorney that the client is a subject, the attorney will typically respond by asking the prosecutor what he wants in exchange for immunity. What does this mean?

As is the case with the target, the subject also can assert the Fifth and refuse to answer questions. There is an exception, however, and it’s called immunity. In other words, the prosecutor promises not to charge the subject with any crime based on the answers provided by the subject, unless the subject lies, in which case the prosecutor reserves the right to prosecute the subject for perjury. Once immunized, the subject no longer can assert the Fifth Amendment because her answers no longer have the potential of incriminating her, due to the immunity promise. Therefore, the witness has to answer, or be held in contempt for refusing to answer. As I said previously, that means she goes to jail and stays there until she answers or the grand jury term expires, whichever happens first. This is a tough situation to be in.

Usually a prosecutor wants some blood too and insists on the client pleading guilty to some offense that will involve some prison time. Welcome to the let’s-make-a-deal game, or plea bargaining. The prosecutor’s offer will typically be contingent on reviewing a proffer of what the client would say regarding her involvement in the crime(s) that the prosecutor is investigating. The proffer is initially provided by the client’s attorney in a rough summary form. That is usually followed up by a meeting with the prosecutor and the case agent at the prosecutor’s office. Attorney and client show up at the appointed hour. They review and sign a document that exempts their discussions and the information that the client is about to reveal from being used against the client in the future, unless the client lies, or blurts out a confession to some other crime for which she is not being investigated such as a murder, for example. Sometimes the client will be required to submit to a polygraph, although that is a relatively rare event. Then the negotiations begin in earnest. Eventually, an agreement will be reached, or the talks will break down and the client will be indicted along with the target(s) or forced to sit out the grand jury term in jail for contempt in refusing to answer.

What about the antiwar protesters in Minneapolis and Chicago who have been subpoenaed to appear and testify before the grand jury investigating potential violations of the laws prohibiting terrorism or materially contributing to terrorism?

Each person needs to consult with counsel and hopefully lawyers will come to their assistance and provide representation on a pro bono basis, because this looks like a political prosecution and fishing expedition to intimidate people exercising their constitutional right to dissent from government policy. There probably aren’t any targets at this point. Targets obviously should take the Fifth. There may not even be any subjects. Whatever the case may be, anyone who has any potential exposure should seriously consider refusing to answer questions on the ground that their answer might tend to incriminate them. The District Court Clerk’s Office will appoint counsel to represent anyone who cannot afford counsel.

No one has to explain why they believe their answer might tend to incriminate them because forcing them to answer in order to explain why they are asserting the privilege would defeat the purpose of the privilege, right? Y’all can see that, I hope. Nevertheless, refusing to answer a question like what’s your name, might reasonably be expected to cause a certain detectable level of unpleasantness that could morph into a go-to-jail card for contempt. That’s why it’s a good idea to have a lawyer to assist in negotiating potential troublesome areas where an assertion of the privilege might be legitimate but still create a problem if the expected answer would not reasonably be expected to reveal incriminating information.

I noticed in the piece that I read that people have announced that they are not going to appear in response to the subpoena. That could result and probably will result in the arrest of everyone who refuses to appear unless their appearance is excused ahead of time. This is another reason for everyone to get a lawyer as the lawyer may be able to convince the prosecutor that the client did not violate any law and doesn’t have any information that anyone else violated any laws.

The dangerous legal bramble bush in this case is the definition of what constitutes “material support” for terrorism. That is the danger zone for each witness because the prosecution and the defense probably will disagree as to what it means. The court will look at the statutory definition, but I believe there may still be a gray area where reasonable people might disagree regarding whether certain conduct constitutes material support. Ironically, this uncertainty should expand the scope of the Fifth Amendment privilege to cover any activity involving planning and organizing protests that might be construed as providing material support for terrorism. The First Amendment Freedom of Speech Clause also comes into play, so sorting this out may get a little dicey.

People who are offered immunity deals in exchange for cooperation and testimony will be in a tough spot because they have to answer questions or be held in contempt and go to jail. Some people may decide to do that on principle, but I urge people to withhold making a decision about that until they have consulted with counsel.

For all of these reasons, I strongly encourage everyone who has been subpoenaed to please consult with a lawyer before deciding on a course of action. Although I’ve packed lots of information in this diary, I haven’t covered everything by any means. I’ll try to answer questions in the comments. I encourage any lawyers who read this to please join the discussion and comment, as the spirit moves you.

Namaste.

The Death Penalty Is Unconstitutional And Insane

September 22, 2011

I am opposed to the death penalty in all cases. Period.

I have many reasons. Here are a few of them.

First and foremost, I oppose it because it is immoral. That it is imposed following a jury trial and appellate review, does not wash the defendant’s blood off the jury’s hands and, by extension, our hands because state sanctioned premeditated murder is still premeditated murder. No government ever should be in the business of killing its own people.

Second, death penalty cases typically cost more than three times the cost of incarcerating a defendant to life without possibility of parole.

Third, the death penalty has no deterrent effect. It does not reduce homicide rates. In fact, the opposite is true. Homicide rates are highest in the states that have a death penalty and lowest in the states that do not have a death penalty.

Fourth, our criminal justice system is so infected with racism, corrupt, and broken that it is impossible to know for certain if any given defendant committed the crime charged and, if he did, whether he deserves the death penalty, as opposed to life without parole.

Most people do not know that under our laws there is no murder, however heinous or depraved, that automatically results in a death sentence. When a jury convicts a defendant of a death eligible offense, the case proceeds to a sentencing phase in which the jury ultimately must decide whether the prosecution proved beyond a reasonable doubt that the aggravating evidence (typically the murder and the defendant’s prior record, if any) so outweighs the mitigating evidence (evidence about the defendant and his role in committing the murder) that the defendant should forfeit his life. Assuring consistency that similarly situated defendants convicted of committing similar murders are consistently sentenced to life without possibility of parole instead of death, or vice versa, has proven to be impossible within states, let alone between states.

In Callins v. Collins, 510 U.S. 1141 (1994), Justice Harry Blackmun dissented from the United States Supreme Court’s denial of review in a death penalty case stating,

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

He concluded,

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it—and the death penalty— must be abandoned altogether.” Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (Marshall, J., concurring in judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Justice Blackmun was a conservative Republican who believed strongly in the death penalty when he was appointed to the Supreme Court. As you can see, he finally reached the conclusion that it is impossible to fairly and equitably decide who lives and who dies. I reached the same conclusion, based on my 30 years of experience as a lawyer specializing in death penalty defense and forensics.

Justice Blackmun died in 1999.