A Juror Who Does His Job!

I just read an interesting story by a reporter from the Washington Post. You can read it here. It describes a trial in which the reporter sat as a juror.

Although the juror believed that the defendant was guilty (even guilty beyond a reasonable doubt) he was prepared to acquit because the police testifying were proven to be lying. Another alternate juror on the case formed the same conclusion and reasoned that the lies were enough to create reasonable doubt.

This is exactly what a jury ought to do - weigh the evidence to determine whether reasonable doubt exists. If the state presents witnesses who are obviously lying, you have to question whether the state's case has any merit at all. Using the facts presented by the case on which the reporter sat, the police officer who initially lied was an eyewitness to part of a drug deal. He lied about where he was in relation to the deal as it went down and also about what he was able to see. Other officers adopted the lie and testified accordingly. The defense attorney proved this and the jury understood and realized that the testimony was not factual.

This is how the system is supposed to work. Yet, time after time, it seems as if the police get a free pass when they testify in court. Even if there are discrepancies in their testimony, the jury believes them. I have heard it put this way, "if the defendant wasn't guilty, they wouldn't have arrested him," so errors in police testimony are harmless.

It is refreshing to see that the system worked, just once (the jury deadlocked 10 - 2 to acquit, a mistrial was declared and the defendant was not retried). It is also refreshing to see the reporter question whether use of this much police time and court time to prosecute someone for a $10.00 drug deal. We do tend to spend a large part of our law enforcement budget on cases like that.

~Tim

Right to a Public Trial

The United States Supreme Court ruled this week that the right to a public trial is violated by excluding the public from jury selection. In a case out of Georgia, Presley v. Georgia, a single spectator (the defendant's uncle) was present in the court room prior to the jury pool entering the court. The trial judge informed him that he would have to leave the court and also would have to leave the entire floor. He was informed that he would be permitted to return after a jury had been selected.

The defendant's lawyer objected to the exclusion of the public and set up an appeal that ultimately landed in the U.S. Supreme Court. The Court held, in a rare win for criminal defendants, that the Sixth Amendment right to a public trial extended to the jury selection phase of the trial. The case was reversed and remanded back to Georgia for a new trial. It was an unsigned, per curium, opinion so we can't see which justices voted which way. It would have been interesting to analyze that.

Still, sometimes they do the right thing.

~Tim

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Google's Entry into Legal Research

Interesting news this week for small law offices who can't afford Lexis or Westlaw. Google released a legal research web site. You can access it via their Google Scholar search engine. Just to experiment, I decided to use it one day in parallel with Lexis on several research topics. I found that it consistently returned the same results as Lexis. The next day, I decided to use it to do all the research for the day just to see what it felt like.

Turns out I really like it, with a couple of provisions about how to use it. First, the default page searches all case law from any state or federal court in the country. Obviously, that isn't all that useful since you have to wade through a lot of cases that have minimal interest. The solution to that is simple - always use the Advanced Search page. That page lets you specify what states you want to search from or whether you want to search Federal Courts.

Missing is the ability to search combinations of federal courts and state courts. For example, you can't search for all Sixth Circuit and Tennessee state cases. Most likely this is because they don't have the federal cases broken out by circuit. You also can't search for only Supreme Court cases or only cases from specialized courts such as bankruptcy (bankruptcy cases are there, they are just lumped in with federal).

Also missing is linking cases together by topic like the West keynote system or the Lexis headnote system. In fact, all of the analysis material commonly found on the paid services is missing.

On the bright side, there is a citation service that provides you with lists of cases that cite the case you are reading. It's pretty bare bones, and the cases aren't sorted as those that are favorable, etc. And speaking of sorting, I couldn't find any way of sorting the results from whatever default order they initially appear. It would be nice to be able to sort them by date, then by court.

Still, Google has done a creditable job of providing a free legal research tool. It's close to something you could use to replace Lexis or Westlaw. If they will accept some feedback from the legal community, they could make Lexis and West sit up and take notice.

~Tim

Back After (Lengthy) Absence

I am back to blogging after a lengthy absence caused by being woefully overworked in my practice as well as dealing with some family emergency issues. We're well into U.S. Supreme Court season and I have some comments to make on pending cases and decisions. I hope to get back to posting at least a couple of times a week.

~Tim

Arbitration in Consumer Contracts

I have had a long interest in the issue of whether arbitration should be compelled when the arbitration agreement is simply a part of the boilerplate in a contract for consumer goods or services. The Ohio Supreme Court has recently held that such contracts must be enforced, even when a specific statute grants the right to proceed in a class action or as a private attorney general. The case was Hayes v. Oakridge Home, Slip Opinion No. 2009-Ohio-2054.

Ohio is one of the few states that have gone this way. Most states have held that these arbitration agreements are void as against public policy. For example, the National Law Journal reports that Massachusetts recently held arbitration clauses to be be void as against public policy. Read that article here.

To Blog of Legal Times (BLT) reports today that The National Arbitration Forum has agreed in a settlement with the Attorney General of Minnesota to get out of the consumer arbitration business. You can read that article here.

When I read the article I actually had a good laugh at this quote:

“Until Congress resolves the legal and legislative uncertainty, the cost is simply too high for users and providers of consumer arbitration,” he said.

Until then, Kelly warned, “The consequence to American consumers is that there will be no meaningful alternative to costly and unpredictable litigation.”

He means, I guess, that the consumer should avoid "unpredictable" litigation over the "predictable" pro-business, anti-consumer award that typically comes out of consumer arbitrations.

Here's the thing. Consumers can't afford to litigate small claims. Lawyers won't handle them. Take a look at the typical FDCPA claim, in which you are only going after the statutory damages of $1,000.00. Lawyers can't afford to take on a case that is only going to bring in a couple hundred in legal fees. The only way the consumer has any kind of redress is if he can aggregate his claims with the claims of hundreds, or thousands, of others in a class action. And the only way to prevent the business from continuing the practice that is in violation of law is to obtain injunctive relief by suing as a private attorney general.

Ohio has closed that door. Perhaps, as the article suggest, Congress may overturn that with a well crafted statute.

~Tim

Publicity

My client in the so-called "murder for hire" case that was featured on Nancy Grace a year or so ago entered a no contest plea this week. She will serve 15 days in the county jail and can serve the time on weekends. Pretty good outcome considering that she could have received 25 years in prison if found guilty as charged.

There must have been a reporter in the courtroom since the entire plea exchange with the judge was printed up in the paper this morning. They got it correct for the most part, including the part where the DA credited the motions I had filed as being the reason why they were giving such a good deal. He said they were "not without merit."

In any event, my client in this case got treated roughly in the media when the case first began. I was not her lawyer at that point, she changed to me right after the preliminary hearing. If I had been a publicity seeking hound I could have played this one for all it was worth, but I value my privacy and that makes me value hers just as well.

Still, it would have been nice to tangle with Nancy Grace.

~Tim

Traffic Cameras

Callers to my radio show continue to be intrigued by the issue of cameras installed at traffic lights and intersections so that you can be mailed a ticket for any infraction. A local city. Mt. Juliet, is considering installing them.

I happened to wonder, just the other day, exactly how the photo could be admitted. After all, in order to admit a photograph, you have to elicit testimony that it accurately depicts the conditions at the time it was taken. In the case of an automated traffic camera, who would authenticate it? No one is present when it was taken and the driver can refuse to testify.

Here is what I imagine is the case. Most cities, and states, consider violation of the traffic laws to be civil, not criminal, in nature. I expect that they will argue that the rules of evidence don't apply to the proceedings to enforce infractions caught on camera.

I don't see that the issue has been litigated in Tennessee and I haven't looked elsewhere. Perhaps someday a case will present itself and I can raise the issue (and the client will fund an appeal). Until then, it makes for interesting conversation amongst us lawyers.

~Tim