The Eleventh Circuit Court of Appeals remanded the death sentence conviction of Vernon Madison to the Alabama courts for a proper determination of his Batson objection. Madison who is African American has had three trials for the murder of a White police officer. The first trial was reversed for Batson error. In Batson v. Kentucky the Supreme Court set a three step procedure to deal with claims of using race as a determinate in jury selection. First the party making the claim must make a prima facie case that the opposing party used race in making peremptory strikes. Second the other party must give a race neutral explanation of the strikes. Finally the objecting party must prove purposeful racial discrimination.

In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

Michael Allen and Cleamon Johnson were convicted of murder in California. During jury deliberation, two jurors, one of whom was the foreperson complained that Juror No. 11 had prejudged the case prior to the beginning of deliberation.

They pointed to a statement that Juror No. 11 allegedly made during deliberation that the prosecution at the end of its case had not proved the defendant’s guilt. But as the California Supreme Court pointed out the statement made during deliberation does not mean that Juror No. 11 had decided the case prior to the beginning of deliberation. Juror No. 11 continued to participate in the deliberation and voted “undecided” in the first trial vote. Therefore the trial court incorrectly ruled that Juror No. 11 decided the case prior to deliberation.

The trial court also ruled that Juror No. 11 based the decision in part on evidence that was not before the jury. A major witness at trial said he saw Michael Allen shoot the victims. However the defense showed that the witness was logged in at work at the time of the job. The witness testified that a coworker, Jose, logged him in. Juror No. 11 said he did not believe the witness. Based upon his experience Hispanic workers never log in other people. The Court ruled that while jurors cannot not bring in exterior expert knowledge, into the deliberation, particularly if it differs with the court’s instructions, it is expected that they will bring into the deliberations their life experience and that is what Juror No. 11 did.

As a result the court reversed the convictions and gave the prosecution a chance to retry the case. This was the first reversal, in 25 murder cases, by the Supreme Court this year.

The Supreme Court upheld the conviction of Shirley Ree Smith for assault on a child resulting in death.

The incident resulted from allegations of shaken baby syndrome (SBS). Smith was convicted by a jury of killing her grandchild. The California Court of Appeals upheld the convict and the California Supreme refused to review the case. Smith’s petition for a writ of habeas corpus was denied by the U. S. District Court. But the Ninth Circuit reversed the conviction.

The Supreme Court reinstated the conviction finding that while the Ninth Circuit used the correct test it excced its authority in reversing the conviction. It held, as it has in the past that “[a] reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” While there is no doubt that there was sufficient evidence at the trial to find Ms Smith innocent the jury’s verdict cannot be reversed since there was evidence to support its verdict and since reasonable people can disagree on the verdict.

The per curiam opinion is rather pedantry but the dissent by Justice Ginsburg ¹ is more interesting. She argues that the court erred in granting certiorari and that it should never have considered the case. Generally the Supreme Court does not take cases because it feels that the case was wrongly decided. It only takes case where the lower court either used the wrong test or the Supreme Court wants to announce a new rule. In this case the lower court used the correct rule but applied it wrong.

As both the per curiam decision and the dissent point out there is a real question about Smith’s guilt. She spent ten years in prison on a fifteen years to life sentence prior to being released after the Ninth Ciruit reversed the District Court’s denial of habeas corpus. Now, barring a pardon by the governor, she will have to return to prison.

Scientific advances regarding SBS have raised question as to wherther there was sufficient medical evidence for a finding that Ms Smith’s grandchild was a victim of SBS. A prosecution expert testified that “cerebral edema, subdural hemorrhage, retinal hemorrhage, bleeding at the joints of theback of the neck, bruises on the arms, fractures of the ribs, and internal injuries to the buttocks” are generally present in cases of SBS but few of these could be found on Ms Smith’s grandchild.

Furthermore there was no evidence that Ms Smith who was sleeping on the floor next to the child’s couch showed any anger towards the child and the child’s mother who was in the next room did not notice anything.

Most SBS cases do not involve grandparents, particularly those who are not the primary caretaker of the infant. Current medical thought raises considerable questions regarding whether an infant can be killed from SBS and it is unlikely that the experts who testified for the prosecution would testify in the same way today.

Considering these factors and the fact that the court did not conduct a full inquiry into the case ² Justice Ginsberg argues that justice would have been met if the court allowed the Ninth Circuit’s decision to go unreviewed and to allow Smith to remain in the care of her family.

The jury in the Casey Anthony trial unanimously found her not guilty of the murder of her daughter, Caylee. What does that mean. It does not mean that she is innocent. It merely means that none of the jurors felt that the prosecution had proved her guilt beyond a reasonable doubt. In fact every member of the jury could have believed that she killed her daughter. Alternatively they could have felt that they did not know who killed Caylee. It’s possible that some believed that Casey killed Caylee, but not by a beyond a reasonable doubt standard and others do not know who killed Caylee. Its obvious that the jurors don’t think very highly of Casey. After all they found her guilty of four counts of lying to a police officer. So its obvious that they don’t believe much of what she said. Luckily she did not testify at trial. And probably they did not believe much of what her lawyers said. They did not have much in the way of facts to back up the drowning story or the allegation that the postal employee moved the body.

But the jury did what it was supposed to do. It held the prosecutor to a beyond a reasonable doubt standard, And after eleven hours of deliberation it found that there was insufficient evidence to find Casey Anthony guilty beyond a reasonable doubt of the murder of her daughter.

No doubt many will be upset with the jury’s decision. Many (including this author) expected a different result. They ignored the discussion of chloroform which was a red herring with no relevance to the case. They looked at the evidence and decided that they could not find Anthony guilty beyond a reasonable doubt.

There is a long tradition in common law jurisdictions. We do not want to punish a person unless the the government can show beyond a reasonable doubt that the defendant is guilty. This is particularly true, in cases like that of Casey Anthony, when the defendant is facing the death penalty. Therefore it is particularly difficult to get a conviction when the only evidence is circumstantial and when the prosecution is unable to show either the method used to kill the victim or even the time when the victim died. Therefore the jury made the right decision.

A jury in the Northern District of New York found Mark Desnoyers guilty on a number of counts including conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. The judge overruled the jury and entered a judgment of acquittal on the conspiracy count finding the evidence both factually and legally insufficiency.

Factual insufficiency is fairly easy to understand. If no rational jury could find the defendant guilty based upon the evidence presented factual insufficiency exists. But in this case Desnoyers was charged with conspiracy to commit violations of both the Clean Air Act and mail fraud. With factual innocence, if there is more than one way a defendant can be found guilty, the conviction is upheld if there is any way the jury could have found the defendant guilty. Desnoyers claimed that a jury could not find him guilty of conspiracy to violate the Clean Air Act but he made no claim about mail fraud. Since he could have been convicted of conspiracy to commit mail fraud the appellate court reversed the trial judge’s reversal of the jury finding in regard to factual innocence.

Legal innocence is a more complicated issue. ” A legal challenge . . . questions whether a conviction rests on a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Another difference between legal insufficiency and factual insufficiency is that with legal insufficiency if under any theory before the jury the conviction was legally insufficient the conviction must be reversed. Desnoyers was charged with violating the Clean Air Act in regard to eight buildings. He was an asbestos inspector. The Clean Air Act applies to commercial buildings and residential buildings with more than four units. “[A]dditionally, buildings must contain “friable” asbestos and at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos on other facility components in order to be subject to the regulations.” After the trial the government admitted that seven of the eight buildings did not meet the requirements. In the eighth building no one measured the amount of asbestos since it was removed before the government agents arrived. However a number of people referred to the building as “a large job.” In the trade “a large job” means that it is covered by the Clean Air Act. Desnoyers claimed that there was legal insufficiency because their was insufficient evidence to prove a violation of the law in that the amount of asbestos had not been measured. However, the Second Circuit Court of Appeals ruled that Desnoyers failed to understand what was meant by legal insufficiency. Desnoyers explanation does not meet the test of whether a conviction rests on a mistake of law. The question should be whether what Desnoyers did was legal but he was convicted because of a mistake of law. For example if the judge misdirected the jury and he was convicted of an action that was actually legal.. If the judge misdirected the jury then the conviction would rest on a mistake of law and would be reversed for legal insufficiency. But in this case the judge correctly instructed the jury and the jury found Desnoyers to be in violation of the law.

The Second Circuit remanded the case with instructions to reinstate the jury verdict and to sentence Desnoyers, accordingly.

Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

Hadley Jons was kicked off a Macomb County, Michigan jury. During the prosecution case and before hearing all of the evidence she wrote about her jury experience on her Facebook page. She not only wrote about her jury experience but she said that she could not wait to find the defendant guilty. She is now facing contempt of court proceedings.

I cannot imagine how many court orders she has violated. Every judge I know instructs the jury not to discuss the case outside of the jury room until after the verdict is in. They are also instructed not to discuss the trial with anyone but their fellow jurors and then only when they are in the jury room. Perhaps most importantly they are instructed not to make up their minds until all of the evidence is in.

Furthermore it raises the question of whether she discussed her feelings with the other jurors prior to the completion of the testimony. If so she may have tainted their ability to be impartial. Did she make other jurors her Facebood friends. And if so did they see her posting?