The Sound of Silence: Can a criminal defendant’s refusal to answer a question be used against him?

If a defendant talks to the police when he is not in custody and then goes silent, does he make a sound? To wit, can the prosecutor argue that the defendant’s silence or refusal to answer certain questions demonstrates his guilt? The U.S. Supreme Court will take up this question when it hears arguments for the case of Salinas v. Texas this week.

In Salinas, the defendant agreed to voluntarily talk to the police regarding a murder for which he was a suspect. He was not arrested at this time. After answering questions for close to an hour, he was asked about shotgun shells that were used in the murder. The defendant provided no further answers and was later arrested and charged with the murder. The State did not comment on the defendant’s refusal to continue answering questions in his first trial, which resulted in a mistrial by a hung jury. In the second trial, in which the defendant did not testify, the prosecutor asserted in closing argument that the defendant’s abrupt silence shows his guilt because an innocent person would have offered an explanation to the question about the shotgun shells. The defendant was convicted. The conviction was affirmed on direct appeal.

TV has conditioned most Americans into understanding the Miranda warning: that an arrested person has the right to remain silent and that anything he or she says in waiver of the right can be used as evidence against him or her. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda is not an issue in Salinas because Mr. Salinas was not in custody–Miranda only applies to people who are arrested or otherwise detained by the police–but instead voluntarily talked to the police. He could have left at anytime before being arrested. He also could have declined the police’s invitation to come down to the station. Miranda prevents statements obtained after a defendant invokes his right to remain silent or made absent a warning from being used as state evidence but do not invalidate the arrest or charges.

Despite having a Constitutional right to remain silent, a large majority of defendants waive that right. Few help themselves by doing so.

Defendants have the right to testify for themselves and also the right to not testify at all. The Fifth Amendment prohibits criminal defendants from being witnesses against themselves. In many if not most trials, the defendant does not testify. Jurors are instructed not to infer anything about a defendant’s decision not to testify (that he or she is hiding something…which many jurors do anyway). Prosecutors, by the rule articulated in Griffin v. California, 380 U.S. 609 (1965), are not allowed to comment on a defendant’s decision not to testify. The Griffin rule and the Fifth Amendment are rooted in our adversarial system of justice and to protect from inquisitorial-like proceedings.

Should a defendant’s silence be able to be used against him or her even though the verbal statements are admissible? It is my opinion (not surprisingly siding with the defendant in this one) that it should not be. A defendant’s refusal to answer questions should not be argued or construed to be evidence of guilt. Allowing such a practice would undermine the Fifth Amendment and unfairly shift the burden of proof onto the defendant, in violation of our presumption of innocence.

For starters, why should silence be considered incriminating? There are many reasons why a person may decline to give an answer to a question while being interrogated. One is that the person may be confused. Another is that the person may realize, upon hearing the question, that he or she may be under suspicion and should talk to a lawyer (better late than never). When a person gives an answer, there are words that were spoken for a fact-finder to read or hear. Whether those words are incriminating is up for the finder of fact to determine. There are no words in silence. Mr. Salinas’ silence only became incriminating because the prosecutor said it was. Using silence as evidence against a defendant effectively punishes him or her for invoking a Constitutional right. It is one thing when someone willingly says something incriminating. It is quite another when a person says nothing. The prosecuting authority should not be allowed to put words in a defendant’s mouth. Putting incriminating words into a defendant’s mouth makes that defendant a witness against himself.

As the petitioner (defendant) in Salinas argued in his brief, considering silence incriminating shifts the burden of proof. In the United States all criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt by the government. A defendant does not have to put on a defense to be acquitted. Allowing silence to be considered incriminating reduces the state’s burden on top of giving the state more evidence.

Justices, reverse this conviction.

The words of the prophets are written in the Common Law blog.

Facebook ‘em, Danno. Social media and legal evidence.

Social media occupies a firm place in our society and many people’s time. Facebook, Twitter, Instagram and other platforms have made all sorts of things easier, from checking out pictures of your friends’ dogs to creating a scandal that forces you to resign from Congress. The prevalence of social media and available technology has led to the adverse phenomenon of individuals over-sharing information about themselves. This modern hubris most often leads to ridicule or just disgust by the person’s followers. Sometimes, it leads to legal problems.

My good buddy Jesse Dill, a Milwaukee attorney who is an authority on social media legal issues, Tweeted a link that the IRS may begin checking the Facebook and Twitter pages of individuals who have questionable tax returns, with the aim to uncover evidence of higher income or lavish spending.

This follows a trend among law enforcement agencies. Police departments all over the country have been using social media in their investigations. In many cases the work is already done for them by suspects sharing information of criminal activity, from pictures of drugs, guns and money to straight-up boasts of committing a crime. One of many examples is a young man in Oregon who was arrested after posting the following status on Facebook: “Drivin drunk…. classsic ;) but to whoever’s vehicle i hit i am sorry. :P”. One of his friends notified the police after seeing it. He was arrested and charged.

Police departments in Connecticut are also using social media for investigation and to communicate with the public.

“Imagine the law enforcement possibilities for this new machine.”

So how can the police do this? What about Fourth Amendment protections? The answer is pretty simple. Social media posts are largely public statements: the poster is not making them with any expectation of privacy. The Fourth Amendment protects people when they have a reasonable expectation of privacy. A person who is posting something for others to see is likely not exhibiting any expectation of privacy for that statement and even if he or she were, it would likely not be held to be reasonable. In the Oregon case, the poster was reported by two of his followers, so there was not even any government action that caught his post.

A few years ago in Wisconsin, a girl named Jenny began Facebook friending students at the University of Wisconsin-LaCrosse. Jenny was really a police officer who used her new friend status to find pictures of her underage friends drinking. The students were called down to the police station–not arrested–voluntarily went and were ticketed for underage possession of alcohol. These types of sting operations are a little dicier Fourth Amendment-wise because it is the police who initiated the contact, but again, the stung party was free to reject the investigator’s request. These and more elaborate police actions will likely be litigated more going forward but it will not likely lead to greater Fourth Amendment protection.

Facebook at least has some privacy protections compared to other social media. It does not take much effort to find YouTube videos of people engaging in illegal activity. When I was in college, before Facebook became the dominant photo sharing platform, people used other websites such as Webshots, Shutterfly and Worldisround to share their pictures, which tended to show college social activities of dubious legality. Although there were not full profiles to tie pictures to someone, they were completely open to anyone looking online. The point to remember is: you never know who is looking.

“Look, the suspect just checked into the 27th St. McDonalds on FourSquare.”

It also is not just law enforcement that is using social media. Opponents in civil cases often use social media to find things out about their opponents. This is very common in divorce cases. It is also common in personal injury cases–defense attorneys and insurance companies look for evidence of plaintiffs doing physical activities that would indicate their injuries are not severe. Employers may also be checking up on their employees. Due to the admission by a party opponent rule in evidence, it is not difficult to admit statements of a civil opponent into court.

For all of the concerns about government intrusion into privacy and the rapidly eroding Fourth Amendment, people are their own worst enemies. Individuals routinely waive their protections under Fourth and Fifth Amendments by volunteering information to the police and just about everyone else. I now emphasize to my clients that while they have the right to remain silent, that right does not protect what they willingly reveal to other people in conversations or online, and that they must be careful.

Look for DeMatteo Law on Facebook and Twitter. I assure you that all of our posts are legal.

Will You Go To (Integrated) Prom With Me?

The landmark case Brown v. Board of Education, 347 U.S. 483 (1954), ended legal school segregation more than six decades ago. This is an example of how the the law changed before individuals’ minds did. The civil rights movement and racial strife continued in the United States through the 1960′s and in many ways are still not over. Although there is no longer legal racial segregation, there are still instances of de facto segregation and private segregation, and individual racism.

Nettie and Nickie Hunt on the steps of the Supreme Court following the Brown decision.

One such example is the prom situation at Wilcox County High School in Georgia. The school and its activities are integrated. The school’s proms however, have not been integrated. After years of separate events, a group of students is pushing for an integrated prom. In 2013. The term prom may be a bit generous as the school does not sponsor an official prom. The events–a “white prom” and now, an integrated prom for all to attend–are private dances. They are sponsored and financed by private organizations and individuals. It is sad but sadly not surprising that this sort of thing still exists in our country.

A scene from Little Rock, AR in 1959. The law requires public places and activities to be integrated. Private events and places…not so much.

How is this legal? In short, civil rights law really only governs public places, actors and events. The 14th amendment prohibits legal segregation–most notably segregated schools and other public facilities. The Civil Rights Act of 1964, among other laws, prevents common carriers, businesses and other parts engaged in commerce from discriminating. Many states have their own laws against discrimination. Private parties (meaning both people and actual party-type parties) and events are often beyond the reach of the 14th amendment and civil rights laws and are even Constitutionally protected in different ways. The 1st amendment protects the rights of free expression and association. That is why groups that promote racist, sexist and other unpopular views are allowed to exist and publicly demonstrate. That is the way the law should work: as has been proven throughout history, unpopular ideas need the most protection.

In this case, the segregated prom is a private event in much the same way an invitation-only ball is. It cannot use public facilities, such as a school gym, but can rent a private space. The public school is not allowed to sponsor or promote it in any way. The integrated prom however was allowed to hang up signs because even though it is also private, is not discriminatory in nature.

Bayside always had an integrated prom.

Although we have come a long way from separate-but-equal and racial riots, there is still a long way to go. In Georgia and in the rest of the states. This group of students is going in the right direction.


Does Connecticut Have a “Stand Your Ground” Law? The Defenses of Persons, Premises and Property in the Nutmeg State.

Defense of Person, Defense of Premises and Defense of Property are all justification defenses: a person is allowed to use force against another person and not be held criminally liable in order to defend himself, a place or property from an act against his person, place or property.

Defense of Person (Self-Defense and Defense of Others) Conn. Gen. Stat. Sec. 53a-19
A person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose. See the section on Deadly Force below.

A person is not justified in using physical force when
1. with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or
2. he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or
3. the physical force involved was the product of a combat by agreement not specifically authorized by law.

Deadly Force
Deadly physical force may only be used when actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

A person is not justified in using deadly force to defend himself or herself when he or she can avoid the use of such force by:
1. Retreating. A person does not have a duty to retreat in the home or office. This is the castle doctrine and the area in which “stand your ground” laws change the common law.
2. By surrendering possession of property to a person asserting a claim of right thereto
3. By complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.

Nolan Ryan stands his mound.

“Stand Your Ground” laws refer to laws enacted in other states that remove the duty to retreat in self-defense situations. Florida’s stand your ground law, which is the most famous in the country, provides the following:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. Flor. Stat. Sec. 776.013(3).

This in essence expands the “Castle Doctrine” to situations outside of premises. The common law standard, which has been codified and is used in Connecticut and most states, is known as the “Castle doctrine” holds that the duty to retreat does not apply in situations that occur inside the defender’s home or other premises. This rule is rooted in the time-honored English law precept that “an Englishman’s home is his castle.” Now back to Connecticut law.

Defense of Premises (Includes Home and Place of Business) Sec. 53a-20
A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises:
The use of deadly force is only authorized in the following situations:
1. To defend a person, in which case the defense of persons law from above applies with the added “Castle Doctrine.”
2. When he reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or
3. To the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling, or place of work, and for the sole purpose of such prevention or termination.

Defense of (Personal) Property Sec. 53a-21.
Despite the statute’s use of the term property, this refers to personal property—objects or money—not land or buildings, which are covered as premises.

A person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent an attempt by such other person to commit larceny or criminal mischief involving property, or when and to the extent he reasonably believes such to be necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force.

It is important to note that although these are justification defenses, they are defenses. They do not make someone immune from prosecution but are used to defend against charges at trial. When a person raises such a defense, the State must disprove the defense beyond a reasonable doubt. These defenses are fact-sensitive: what may be reasonable in one case may not be reasonable in another. Whether a defendant’s belief is reasonable is ultimately left for a jury.

So is a person allowed to shoot burglars and or trespassers? Yes, but it must be reasonably believed necessary to protect a person, prevent arson or another violent crime, or to prevent/terminate the unlawful entry onto those premises. There is right to “shoot on sight.” Not even in Texas.

Just as Florida has the most famous “stand your ground law” in the country, Texas has a reputation for strong defense of property customs. One
In Texas, “a person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.” Tex. Penal Code sec. 9.41. That doesn’t look too different from Connecticut’s law. On using deadly force to defend property, Texas statute requires that a person must be justified in using regular force and must also reasonably believe that such deadly force is immediately necessary

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. Sec. 9.42.

There appears to be more about the use of deadly force in protecting property. Additionally, Texas has a statutory justification for using force to defend another person’s property. Still, this does not allow a person to shoot someone who simply sets foot on his or her property.

Busted for Brackets? The legality of NCAA tournament pools and other sports betting in Connecticut.

It is the most wonderful time of year. College basketball is in its postseason. A week from today the 68-team NCAA men’s tournament bracket will be revealed and within minutes many of us will be filling out our own brackets to play in pools. Whether they be among friends, co-workers or part of Internet contests, most of these brackets will be entered into pools with the goal to win a prize. Most commonly this works by paying a sum of money per entry (filled bracket) to enter a pool. Whoever scores the most points with his or her bracket wins the prize, which is most often the money in the pool or a prize purchased by the money in the pool.

Since tournament pools are ubiquitous, some of you may be wondering if they can violate gambling laws. Some of you might actually care. The answer is a classic legal axiom: it depends. More than likely your pool will be well within the bounds of the law. There are however some things that may draw some whistles.

To start, let’s look at Connecticut’s relevant gambling statutes. Sec. 53-278a of the General Statutes includes the following definitions:

(1) “Gain” means the direct realization of winnings; “profit” means any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management or unequal advantage in a series of transactions;

(2) “Gambling” means risking any money, credit, deposit or other thing of value for gain contingent in whole or in part upon lot, chance or the operation of a gambling device, including the playing of a casino gambling game such as blackjack, poker, craps, roulette or a slot machine, but does not include: Legal contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries; legal business transactions which are valid under the law of contracts; activity legal under the provisions of sections 7-169 to 7-186, inclusive; any lottery or contest conducted by or under the authority of any state of the United States, Commonwealth of Puerto Rico or any possession or territory of the United States; and other acts or transactions expressly authorized by law on or after October 1, 1973;

(3) “Professional gambling” means accepting or offering to accept, for profit, money, credits, deposits or other things of value risked in gambling, or any claim thereon or interest therein. Without limiting the generality of this definition, the following shall be included: Pool-selling and bookmaking; maintaining slot machines, one-ball machines or variants thereof, pinball machines, which award anything other than an immediate and unrecorded right of replay, roulette wheels, dice tables, or money or merchandise pushcards, punchboards, jars or spindles, in any place accessible to the public; and except as provided in sections 7-169 to 7-186, inclusive, conducting lotteries, gift enterprises, disposal or sale of property by lottery or hazard or policy or numbers games, or selling chances therein; and the following shall be presumed to be included: Conducting any banking game played with cards, dice or counters, or accepting any fixed share of the stakes therein;

(5) “Gambling record” means any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling;

(6) “Gambling information” means a communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling. Information as to wagers, betting odds or changes in betting odds shall be presumed to be intended for use in professional gambling

Pool-selling and book-making immediately catch your eye. Book-making, also known as booking, is the accepting and paying of bets, usually related to sports. Pool-selling isn’t as obvious but looks important. Defined in State v. Fico, 147 Conn. 426 (1960), pool-selling “consists of the receiving from several persons of wagers on the same event, the total sum of which is to be given the winners, subject ordinarily to a deduction of a commission by the seller of the pool.”

It looks here that a tournament bracket pool may constitute pool-selling. That questions then are: is this gambling and if so, is it legal?

The next statute to look at is Sec. 53-278b, which provides

(a) Any person who engages in gambling, or solicits or induces another to engage in gambling, or is present when another person or persons are engaged in gambling, shall be guilty of a class B misdemeanor; provided natural persons shall be exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling.

(b) Any person who engages in professional gambling shall be guilty of a class A misdemeanor.

The key is whether the pool is professional in nature. Professional gambling requires a profit motive. A bracket pool among friends or office colleagues in which the pot goes to the winner and the organizer doesn’t take a rake lacks the profit motive. A pool that has a cash prize but not an entry fee would also lack the profit motive. A pool in which the organizer takes a cut of the buy-in would most likely cross the line into professional gambling.

In addition to the absence of a profit motive, most tournament pools fall into the “social gambling exception” delineated in Sec. 53-278b(a). Although there is no definition of “social gambling” in the statute or in case law, many other states have this exception and have defined it. In Colorado for example, “‘bona fide social relationship’ means that the parties must have an established social relationship based upon some other common interest other than the gambling activity.”

If I had the CIA and FBI at my disposal, my bracket would be pretty good too.

Some people like to go beyond the brackets and wager on individual games, often seeing people who regularly engage in Sec. 53-278a(3). Such sports* betting is illegal in Connecticut and almost every other state. A great deal of sports wagering is now conducted over the Internet with offshore sports books. Interestingly, it is not a federal crime to place bets. The Wire Act and other applicable federal laws prohibit booking. Still, betting on sports via the Internet is still prohibited by Connecticut law. It can still violate Sec. 53-278b and has not been specifically authorized by law.

Sports wagering does not refer to pari-mutel betting, which is legal.

Happy brackets, friends.

Everything You Always Wanted to Know About Sex Assault 2 (Statutory Rape) But Were Too Afraid To Ask

Few crimes are endearing in pop culture as the form of sexual assault commonly known as statutory rape. Although murder has been the subject of far more movies and TV shows, a sexual relationship or encounter in which one of the persons is below the legal age of consent provides a twist of intrigue to the classic forbidden romance device.

I have received numerous questions and heard much misinformation about these types of crimes over the years. In my experience, it ranks with drunk driving laws as the most discussed yet least understood of crimes.

Known by various terms depending on the jurisdiction (and seldom called statutory rape), statutory rape laws usually refer to laws which make sexual intercourse between two persons a crime when one of the participants is below the legal age of consent or is a member of a class which the law presumes cannot consent to sexual activity. In popular media and literature, it is almost always an older man having sex with a younger woman–think Lolita and all of its derivatives. In real life however, it is much more.

The key to any statutory rape law is the age of consent. Age of consent is most simply defined as “the age at which a person is legally considered competent to give consent, as to sexual intercourse.” These ages depend on jurisdiction. Thus, Internet countdowns for young celebrities’ eighteenth birthdays (some of us will remember the Olson twins’ countdowns; other readers may recall Miley Cyrus, Justin Bieber and Taylor Laughtner–see, it isn’t just men who have these ideas) may not be accurate. It is the ages of consent which are the subject of the most misunderstanding.

In Connecticut, which for years has used the term sexual assault to refer to the crimes that were traditionally known as rape, statutory rape is codified in Conn. Gen. Stat. Sec. 53a-71 as Sexual Assault in the Second Degree, which provides in relevant part

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person; or (2) such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse; or (3) such other person is physically helpless; or (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare…

So, according to our law, the age of consent in Connecticut is sixteen in that, barring one of the prohibited relationships established later in the statute (teacher-student, therapist-patient, coach-player, etc.), a sixteen year-old can legally have sex with a person of any age greater than sixteen. That is not to say that the age of fifteen triggers the crime as the more-than-three-years-older provision allows for a fifteen-eighteen relationship. Similarly, fourteen-seventeen and thirteen-sixteen interactions are permissible. Sex with a person under the age of thirteen is unlawful no matter the actor’s age.

If the protagonist’s fantasy is realized, there may be a violation of Sec. 53a-71 because of the participants’ ages as well as their student-teacher relationship.

It is important to note that mistake as to the younger person’s age is not a defense to this crime. See State v. Blake, 63 Conn. App. 536 (2001). Additionally, it is not a defense that the sexual intercourse was consensual.

In addition to Sec. 53a-71 which establishes prohibitions on sexual intercourse, Sec. 53a-73a, Sexual Assault in the 4th Degree, applies most of the same age and other restrictions to sexual contact short of intercourse. Moreover, the crime of Risk of Injury to a Minor, Sec. 53-21, may be charged to include sexual interactions with a person under the age of sixteen.

Sexual Assault 2nd is either a class B or C felony. It is not a capital crime but still very serious.

I don’t know what the law is in the UK, but the actions in “Stray Cat Blues” by the Rolling Stones (the linked version is not the Stones) would constitute Sexual Assault 2nd in Connecticut. The Rolling Stones are clearly too old for the female character in the song, or really anyone else.

Despite the traditional notion of statutory rape being between an older male and a younger female, the law is no longer gender specific. Women can and have been charged with committing this offense.

Unlike the Rolling Stones, Winger does not have to worry about breaking the law. At least not in this state. Still, a musical act touring the country should be cognizant of all the necessary laws.

Contemplative impermissible sex is a longstanding trope in pop music. Just listen to “Touchin’ me, touchin’ you” Neil Diamond.

Neil Diamond was wise to wait.

Keep it legal, my friends.

Let’s Rock

Don’t call it a comeback, the blog has been here for years. It just hasn’t been updated in a long while. Now it is updated with a new name and a new design to go along with my new law practice. As I have publicized in person and across other media, I left Jazlowiecki & Jazlowiecki in early December 2012 to set up my own office in New Haven. It was just time to move on. Time to move on to new challenges and time to move on to new types of cases. I learned a lot in my nearly two years in Bristol; most importantly how to handle civil cases and the day to day workings of a busy law practice. I am still assisting J&J on a few matters and remain close with my former colleagues.

The first few months of solo practice have been exciting and challenging. I expect the future to at least be interesting. The purpose of this forum is to share those experiences and comment on legal issues…and probably some other things. The website for my office, DeMatteo Law, is located at

Call It The Tumbling Dice

Next time I have a criminal jury trial, one of my voir dire questions will be whether prospective jurors watch Nancy Grace.* That is one of the great things about the jury system–that both the prosecution and defense choose the fact-finders of their case.

*What’s with her label “Tot Mom”? Isn’t every woman who has a young child a “tot mom”? Nancy Grace sucks.

As fast as the not guilty verdicts could be tweeted there were clamors that the jury in the Casey Anthony trial were wrong. After thirty days of evidence and a day and a half of deliberations, the jury voted to acquit. For many it was a surprising result. To Nancy Grace, much of the media and the people that heard the evidence through them, the State of Florida proved beyond a reasonable doubt that Casey Anthony murdered her daughter. To the twelve jurors who decided this case–whose opinion was the only one that mattered–who were chosen by the State and the defense–who actually heard and saw all the evidence live in the courtroom–the State did not meet its burden.

From time to time you’ll hear lawyers on both sides of the aisle say that taking a case to a jury is akin to rolling the dice. I don’t like that expression because it undermines the concepts of fact-finding, advocacy and the law. There is risk for both sides in going to trial because, unlike a plea bargain, the outcome is not known in advance. Few if any cases are slam dunks.

As I did not watch the trial from the jury box nor discuss the evidence in the jury room, I don’t know what swung the case. What I do know is that the decision to convict or acquit was made by twelve people and that it had to be unanimous. Like everything, juries and jurors are imperfect. Still, the chances of having twelve terrible jurors is quite remote. One or two may slip in with a bias that cannot be detected in voir dire, but with both sides able to exercise challenges, and those sides composed of high-powered and experienced prosecutors and defenders in such a high-stakes case, the jury should not be as a whole biased one way or the other. Additionally, the chances of a jury having a Henry Fonda holdout persuade his eleven angry peers to switch to his position is slim as well.

The purpose of a trial is to determine whether a person accused of a crime committed it. To protect citizens from the power of the government, defendants are presumed innocent and must be proven guilty beyond a reasonable doubt. The burden is on the government. The facts and doubts are assessed by an impartial jury of citizens, not government employees or any other group (such as the media) which may come to the proceedings with an interest. The people in the media and the outlets themselves are not free of interests. The system has a plan for that as well: jurors are not supposed to read about the cases they are to decide. Again, while jurors may have biases that are not readily apparent, juries as a whole are still not nearly as flawed as those who are trying to sell advertising time or newspapers.

Interestingly enough, one of the biggest threats to jury reliability was present in the Anthony case and was put there by the law. Casey Anthony was charged with capital crimes and faced the death penalty if convicted. Death cases have two phases: guilt and penalty. After a person is convicted of a capital offense in the guilt phase, the same jury decides in the penalty phase whether the death penalty should be imposed. The wrinkle is that death penalty juries are composed of jurors who say that they can vote for execution. People who say in voir dire that they cannot vote death (for any reason) are dismissed for cause. The resulting juries therefore are called “death-qualified.” Studies have shown that supporters of the death penalty–a more conservative group–are more inclined to believe prosecutors and law enforcement personnel than defendants and their lawyers. When the prosecutors stepped up to the table, they were rolling loaded dice. Yet they still didn’t make their point.

It wasn’t the jury. It was the evidence. It almost always is.

“This low down bitchin’ got my poor feet a itchin’ / You know you know the duece is still wild”

If You Don’t Believe In Justice For All, You Don’t Believe in Justice At All

You can’t claim to bring someone to justice and then not go through with the justice part. When Whitey Bulger was captured last week, the phrase “brought to justice” was thrown around by more than a few newspapers. The Courant used it in a headline. The Herald used the phrase in articles and columns. The LA Times used it in reference to both Bulger and Bin Laden.

Whitey is now making the rounds in federal court in Boston. But is there justice yet? At the time of this post, the district court has not yet decided whether he will have court-appointed counsel (with his $800,000 nut seized, Bulger claims he cannot afford legal representation). Some people, notably two columnists of the justice-waving Herald, Howie Carr and Margery Eagan, believe that Bulger should not be provided counsel by the court. They argue that a reputed mob boss who illegally made (and might still have) millions in a life of crime and then hid, costing the taxpayers millions in detection and now prosecution, should not now have his legal bills paid by those taxpayers. How is this justice?

It is because justice, rights and the Constitution are all-in or all-out concepts. You cannot have it both ways: if Whitey Bulger or any other defendant is to answer in court for his alleged crimes, he must do so with the same rights as any other defendant. The Sixth Amendment establishes the right to counsel in criminal cases. The right to counsel includes the right to appointed counsel for indigent defendants. Whitey Bulger is not typical of the accused one can see in public defenders’ offices throughout the country. But with his money seized, for now he is indigent (while it would not be surprising that he has money stashed somewhere, it is likely that would be seized as well if he tries to access it). Even if he had his money back, the $800,000 would likely not cover the defense of the complex case of murders and racketeering he will face in federal court.

Whitey Bulger is not a beloved defendant. Few defendants are, especially those accused of murder. Rights, justice and fairness however are not reserved for those who appear innocent or who aren’t charged with terrible crimes. These rights exist for everyone. All defendants are innocent until proven guilty in court. There are in fact defendants who truly are innocent. Denying any defendant his or her basic rights is the denial of all of us of our rights. Limiting the rights of a defendant charged with serious crimes only make it easier to erode the rights of a person charged with any crime, or even someone charged with no crime at all.

For there to be any justice in this case–in any case–all of the tenets of justice must be respected. Boston provides a historic example of zealous defense for unpopular defendants: the cases of Rex v. Preston and Rex v. Wemms et al, better known as the Boston Massacre trials, in 1770. The defense for the British captain and his soldiers was led by John Adams, the most prominent attorney in Boston at the time as well as a patriot who became our second president. An advocate for the Bill of Rights of which the Sixth Amendment is part, Adams won acquittals for Preston and six of the Wemms defendants with the other two being convicted of manslaughter and not murder. After 240 years, a written Constitution and legal precedent, the rights and their importance remain.

Miss Justice

Don’t rag on a person with a dream. Teresa Scanlan — crowned Miss American this past weekend — wants to be a Supreme Court justice and President of the United States. That ambition is too much for some bloggers. Elie Mystal of Above the Law derides her aspirations. Gawker mocked her as well. I credit Ms. Scanlan for not only having high hopes, but for wanting to actually be a lawyer before she attends law school (and even college for that matter; she is still a senior in high school) and not someone delusional of lawyer-money. While many know that only Yale and Harvard law alums who edited law review and became federal court judges can serve on the Supreme Court (Maintain elitism on the high court? “Yes we can!”) and interpret the law for the rest of us B students, let Ms. Scanlan become jaded on her own. As for getting into politics, after hearing about some actual politicians’ cries to repeal the 17th Amendment (that’s direct election of Senators…really, there is clamor that the amendment is un-Constitutional), jerks using the Arizona shooting to raise funds and other recent happenings that I refuse to dignify with links, no one can ever tell me that any person is not smart enough to become an elected official. I’m sure Ms. Scanlan will be able to read the text of the Constitution out loud as well as anyone given her pageant experience.

Already Ms. Scanlan will make a better law school graduate than Michael Wallerstein, the anti-hero of David Segal’s New York Times article “Is Law School a Losing Game?” Unlike Teresa, Mr. Wallerstein did not aspire to become a judge or politician. He went to law school because he thought it would be his ticket to a loan-financed three-year vacation from work with a big paycheck lawyer job at the end. He and some other law graduates think they were tricked by law schools that promised lucrative careers with their degrees. So did this person who wrote an open letter to the dean of BC Law.

It has been four years since I applied to law school but I do not recall seeing anything in school viewbooks or anywhere that promised six-figure jobs at graduation. Marquette surely did not. Neither did the other schools I considered. It could be because only bad schools do that sort of thing. It could also be because I did not convince myself that law school was the ticket to a lot of money.  My dad was in solo practice when I was younger (and now works for the state), so I learned early on that the reality of law practice isn’t a lot of money working for a white shoe firm or anything that would make a one-hour drama series.  I went to law school because I wanted to be a lawyer even after I had been out of college and working as a journalist.

I don’t think law schools convince students that law is glamorous and a high-paying job with a big firm is there waiting.  However I don’t think that they would have to work very hard if they wanted to convince people about that.  I knew more than a few people from my own law school and others that went because they didn’t know what they wanted to do with their lives or because, after studying something they didn’t think was marketable in college, they needed something that at least trained them for a job.  Once the debt mounts, all they want to see in a job is money and it’s hard to resist the jobs in New York that pay first-year associates $160,000.  When they don’t get that job, they feel law school failed them.  I never looked for that kind of job because that wasn’t the kind of law I wanted to do.  I wanted to be a lawyer and knew it would cost a lot.  So did many of my law school classmates.

I hope Teresa Scanlan succeeds in college and whatever she does after that and does not let the jaded keep her down.  Even if she wants to be the next William Howard Taft.  If she does decide to go to law school, she’ll already be ahead of Michael Wallerstein in another department: the scholarships she’s won as Miss America and other pageants will probably keep her debt manageable.

Justice for all,