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August 2004
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October 2004

A Racial Dilemma

Which is worse (and you can only choose one): (a) having a racist juror who can not be challenged for cause because he won't admit his racial bias decide a black man's fate in a criminal case; or (b) telling the racist juror to just "make something up to get off the jury" if he won't openly admit his bias?  A judge who picked "b" got into trouble:

A state commission has rebuked a northern California judge for telling potential jurors that they should think of a phony reason not to serve if they couldn't acknowledge they were racially biased.

Placer County Superior Court Judge Joseph O'Flaherty, in cases in 1999 and 2000 involving black and Iranian defendants, told prospective jurors they should come up with some other reason to get off the jury if they had racial biases and couldn't admit them.

It's easy to get all high and mighty, saying, "Lying is never tolerable in court."  But the judge here faced a dillema.  Imagine what he might have been thinking:

I'm a judge entrusted with ensuring a fair trial to this defendant.  He's black, and I know there are some racists on this panel who won't admit it.  But my power is limited.  I can't just strike them because I think they're racist.  I have to have some reason.  What should I do? 

Shoud I allow racists to serve on this jury?  They might allow their bias to get in the way of objectively looking at the evidence.  They might convict an innocent man.  At the very least, they'll deny him his right to an impartial jury.

While I don't agree with the judge's action, by stepping into his shoes, I can at least understand his actions.

Bizarro World

Kobe Bryant's defense team sought to seal the record in Colorado v. Bryant. The prosecution demurred:


[Mark Hurlbert] recently said evidence and documents in the case should be released, saying the public's interest in reviewing actions and decisions by prosecutors and the judge outweighed Bryant's privacy concerns.

Isn't it ironic that now the defense wants to hide the record, while the prosecution moves for full disclosure?  Where now are the prosecution's cries to protect the accuser's privacy?

I also saw that the prosecution's spokeswoman, Krista Flannigan, is still on the state's payroll. Newsflash, guys. The criminal case is over. Do the fiscally responsible thing and trim the fat. Or, was the Kobe Bryant prosecution more about the egos of a few DA's, and less about public trust and responsibility?

Related post: The cost of the Kobe Bryant prosecution.

Killer lawyer - literally

Every year some stupid legal magazine features "Killer Lawyers" or "Pit Bull Lawyers." Well, never one to buck trends, I give you my first installment of Killer Lawyers - Literally.

New York attorney Kevin Bryant is charged with first degree murder for his alleged involvement with his wife's murder. Bryant, 46, apparently did not think it would be suspicious for his wife, 26, to predecease him. According to HaikuEsq.:

Bryant, 46, is charged with hiring his wife's half-brother, for $5000 plus 50% of life insurance proceeds, to kill his then 26-year-old wife, Tabatha, the mother of their two young sons, who was shot and stabbed to death in July 2003.

Prior bad acts

Prosecutors want to present evidence that murder defendant Kevin C. Bryant used cocaine, was serviced by prostitutes in his law office and tried to set up his wife on a bogus drug charge a month before she was slain in their Penfield home, court documents show.

In motion papers filed Wednesday, the Monroe County District Attorney's Office requested permission to introduce evidence that Bryant committed "bad acts," including potentially criminal behavior for which he wasn't charged.

I would like to see the moving papers for this case. I'm sure this could come in to impeach Bryant. For example:

DA: You loved your wife, Mr. Bryant, isn't that true?
Bryant: Yes. [What else is the guy going to say].
DA: And you wanted to protect her, like any good husband would, yes?
Bryant: Of course.
DA: And you were loyal, weren't you?
Bryant: Yes.
DA: Isn't it true, that you had sex with prostitutes?
Defense counsel: Objection!
DA: Goes to credibility of the witness. He said he was loyal and that he loved his wife. The jury has a right to know whether he's telling the truth about these things. We use this evidence for the limited purpose of allowing the jury to evaluate the truthfullness of Mr. Bryant's testimony.
Court: Overruled.

However, I'm not sure how the D.A. could get this evidence introduced as part of its case-in-chief. I may have to do some research on this issue tonight.

Given this evidence, I'm restyling my column: Killer Lawyers - Allegedly

The evidence also tells of a conversation between Bryant and a fellow inmate at the Monroe County Jail about Tabatha Bryant’s murder, in which according to the court papers, Bryant said “I did It.”

When the police start relying on jailhouse informants, I get really nervous. Coerced confessions, eyewitness identification, and jailhouse snitches are the three killers of the innocent. There should per se be reasonable doubt when the police rely on jailhouse informants, because it usually means there is little physical evidence to tie the defendant to the crime.

Ah, shucks

I was honored to be counted among EthicalEsq's weblog friends. He even wrote me a haiku:

the thief
is just as he is...
hazy moon

Unfortunately, David Giacalone (EthicalEsq's proprietor) reminds me of everything I was before law school: reflective, compassionate, patient, outward thinking, inward looking. Although I'm still pretty kind, I don't do much reflection. I rarely read a non-law related book (unless it's about writing, e.g., this book), even as the Baroque Cycle causes boy band like hysteria among the smartest people in the blogosphere.

Hmmm...maybe haiku can help me remedy this!