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July 2005
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September 2005

It's Evan Schaeffer's Turn to Get "Hometowned"

Via Overlawyered and Legal Underground:

On September 7, the AEI Liability Project will be hosting a panel on the recent Ernst v. Merck case (Aug. 22, Aug. 19 and links therein) and its implications for pharmaceutical regulation and the justice system. [Ted Frank] will be speaking, along with Jack Calfee of AEI; Dan Troy, former chief counsel of the FDA and currently at Sidley & Austin; and Evan Schaeffer, who, along with co-counsel from other firms, has a plaintiffs-side docket of Vioxx cases from his Madison County base of Schaeffer & Lamere.

Big Batson Case

My quick reading reveals: 1) statistical evidence of discrimination can be shown even when a small number of preemptory challenges are involved; 2) evidence of hostility to all protected classes should be aggregated for Batson analysis; 3) it's not relevant whether defense counsel violated Batson when determing whether prosecution violated Batson (re: the prosecutor cannot make a good for the gander argument).  U.S. v. Stephens (CA7 8.29.05) (the good stuff starts on page 16).

So Much for the "Great" Writ

Habeas cases are increasingly rule-based, and federal courts won't relax these hyper-technical rules even when it's shown a prosecutor withheld Brady material and an eyewitness recanted his testimony. Daniels v. Uchtman (CA7 8.29.05). 

A prisoner can't seek federal habeas relief until after he has exhausted state court remedies.  The plaintiff has one-year from the time of being denied state court relief to file a federal habeas petition.  Another rule provides that a prisoner has only one year to seek federal habeas relief after he has learned of new evidence that casts his conviction into doubt.  What happens when these rules collide?  Answer: a person who was denied a fair trial is screwed.

In Daniels v. Uchtman, a juvenile deliquent was the primary witness against the defendant.  The juvenile deliquent was facing a pending burglarly charge, but promised a break if he would testify against Mr. Daniels.  The prosecutor never told the defense about the pending burglarly case.  The jury convicted. 

Fifteen years later, the witness recanted his testimony.  Within one-year, Mr. Daniels' defense team sought state court relief.  Within one-year of being denied state court relief, the defense team sought federal court relief.  The district court dismissed the petition as untimely, and the appellate court affirmed, writing that

the statute ran for a total of 123 days from the signing of the affidavit until Daniels filed for relief in state court. At that point, the statute was tolled. After the Illinois Supreme Court denied relief, the statute began to run again, this time for 364 days until Daniels filed his habeas petition. In the view of the district court, a total of 487 days elapsed after the date on which the factual predicate of Daniels’ claims had been discovered, making his habeas petition untimely.

Daniels is problematic since courts sometimes toll the statute of limitations.  Where, as here, the prisoner makes a good faith effort to comply with the (exceedingly complex) rules governing the writ of habeas corpus, federal courts should hear their claims.  After all, the write of habeas corpus is a constitutional right: hyper-technical rules standing in the way of this right are themselves violative of due process.

But that's neither here nor there.  We're left with Daniels, and we must understand it.  Sadly, the message from Daniels seems clear.  File fast - since it's practically impossible to know the deadlines in advance.

Gagging (and Framing) Free Speech

Should the government be able to censor you when it's necessary to prevent you from embarassing someone who harmed you?  Say, for example, you were able to photograph a peeping tom.  Should you be able to publish the peeping tom's photograph on your website?  Dan Solove says "censorship" in this post, and I say free speech in the comments

The post is also interesting since Solove and I are in a framing war.  He is attempting to frame the disclosure of truthful but embarassing facts as "Internet vigilantism."  I am attempting to frame his approach for what it is - censorship.  Which frame will prevail?  This matters a great deal, since if Solove's frame wins, e-shaming will be limited.  Who, after all, supports vigilantism of any kind?  If my frame prevails, then e-shaming will be less limited.  Who, after all, supports censorship?

We won't know for a few years which frame will be accepted.  For the sake of free speech and public safety, I hope everyone recognizes that publishing photos of a peeping tom isn't vigilantism, it's free speech.  Do check out the post and my comments.

Excising Cochran from my Writing*

I almost forgot to omit a phrase from a motion I'm writing re: the corpus delicti of homicide:

Did [the deceased] get into a car accident, did she fall from a cliff and break her neck, did she fall into a river and drown?  The prosecutor doesn't know.  Because the prosecutor doesn't know, this case has got to go.

And so too must that last line.

* Title originally read: "Excising Cochran from my Briefs."  Thankfully I haven't been in the law long enough to forget about the other briefs (though perhaps Kerr would have missed it.) That title would have been okay, if, say, I was trying to excise Kournikova from my briefs.  It would also have worked if I wanted to excise Wood (as in superhottie Kimba Wood).  Eh, then again, maybe not.

California Jurists Properly Place Burden of Proof

California has done what lawyers have been trying to do for years - put the law in plain language.  Although I'll have to read the instructions before rendering a verdict, they made one potentially huge change.  This change might be a small revolution in the way juries decide criminal cases. 

As Clay Conrad, an expert on jury deliberations and jury law, has noted:

[T]he academic literature shows that juries fail to comprehend the concept of proof beyond a reasonable doubt. Prof. Lawrence M. Solan has written that "empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden." This is because, according to Prof. Solan, clear and convincing evidence instructions "focus the jury on the government's burden, while [proof beyond a reasonable doubt instructions] focus the jury on the defendant's ability to come up with alternative explanations." See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex.L.Rev. 105 (1999).

The new instructions, according to this article, change that. 

Even the bread-and-butter jury instruction that is read to panelists in every criminal case is being altered: the concept of proof beyond a reasonable doubt.

The old version defines it as "not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt."

The new instruction explains it as "proof that leaves you with an abiding conviction that the charge is true."

While this is a minor change in words, it creates a paradigm shift.  The new instructions ensure that the jury focuses on whether the prosecutor has proven his case, rather than whether the defendant has created a reasonable doubt.

(Thx, Chef)

Cowabunga, Dude!

Have you heard the news! California is going colloquial. The Flake State has revised its criminal jury instructions to avoid the constipated prose of the law and to relate more directly to the people. I have yet to get my hands on a copy of the 2,048 pages of revisions. But I hope to soon.

Herewith an effort to, like, welll, you know, relate to the topic:

"So, like you've seen these like totally gruesome pictures, you know? And a couple people told you what they remember seeing. So now you, like, well, you know, you have to decide, you know what I mean? Is, like the guy the state's pinning the rap on a fiend, or what?

"I know you're bummed that the accused dude didn't pipe up. But, like this is important so listen up: He doesn't have to say a word. He can be, like, totally silent, sit there like a humungous boulder in the waves. The prosecution has to, like, well, prove he did the crime, get it? So don't freak and hold it against the guy for not rapping with you. It is his right to do the silence thing, as in we can't make him do anything, okay?

"And another thing, people. The state really, really, really has to prove its case here, you dig? That means no Ouija boards, no talk lines, no astral traveling, no noodling with your therapists or healers, okay? It's just you and your take on the people who spoke here and all the paper and stuff you were shown, cool? Don't make things up. Try to be reasonable, okay?

"I mean, like, if the evidence doesn't fit you must acquit, okay?"