Wednesday, September 15, 2010

The Killer, the Juror, and the Censor

Had I but world enough and time, I'd put out three full posts tonight. There's that much to discuss at length.  But I haven't the time, so I'm going to cram them all into this one.  Under the circumstances, I suppose a road map is in order.
  • From Texas, there's the arrogance of Sharon Keller making another appearance on this blawg as she explains that since the State Commission on Judicial Conduct imposed a punishment lighter than any it was authorized to impose (you'll recall that it just warned us all about her and warned her about . . . ?? Damned if I know) she must be adjudged noble and the charges against her dismissed.
  • From Connecticut, there's the absolutely extraordinary events in the capital trial of Steven Hayes where a juror was dismissed after telling the judge that he was confused and frustrated that the prosecution was so unfocused and another juror wanted more details than the prosecution provided.
  • And from Justice Stephen Breyer, there's the frightening misrepresentation of Holmes' warning about the limitations of speech in a crowded theater and how free speech should be limited by its potential consequences.
Fasten your seat belts.  It's going to be a bumpy night.
She really does have chutzpah
I never really know where to begin with Sharon Keller.  And at this point the arguments at least are counsel's rather than hers.  But good grief.
You know the story.  Charged with violations of judicial ethics for her behavior on September 25, 2007, the evening of the execution of Michael Richard.  Specifically, she was charged failure to follow court procedures which had the effect of denying Michael Richard access to the court and a hearing and of bringing disrepute on the court.
Sharon Keller
Her defense was, in essence, Richard was killed that night because his lawyers are dishonest and incompetent (a total red herring), the court had no rules, I didn't do anything wrong and I certainly wouldn't do anything differently if I had the chance to do it again.  So there.
The judge specially designated to hold a hearing determined that she didn't do too much that was wrong, that she lied when she said she hadn't learned her lesson, that Richard's lawyers were incompetent and dishonest so what's the big deal, and that since she learned her lesson, there was no reason to punish her.
Michael Richard
She declared vindication.  And demanded that the charges against her be dismissed.  The State Commission on Judicial Conduct instead concluded that she was arrogant and violated bunches of rules and brought disgrace and embarrassment on the court and that we and she should therefore be warned.
Outraged, she asked to have the Texas Supreme Court intervene and dismiss the charges.  The court refused.  So she appealed.  A Special Court of Review was convened to hear the appeal.  She filed a motion to dismiss the charges.  Her argument is simple:  The Commission on Judicial Conduct had no authority under the Texas Constitution to do what it did, and anyway, she didn't do anything wrong, so the charges should be dismissed.
She seems to be right about at least one of her procedural claims.  It seems pretty clear that the Commission had no authority to issue the warning she received.  It's choices were to dismiss the charges or impose a more serious sanction.  It's less clear that the Commission is unconstitutionally constituted.  And it's simply nonsense to say that the Commission did not find good cause to sanction her.  That argument rests, of course, on her ultimate claim that the hearing vindicated her.  But even Judge Berchelmann, who ruled in her favor on the merits, found that she acted improperly.
For those defendants whose cases she hears on the Court of Criminal Appeals, finality trumps fairness.  When it's her ox that's being gored, the standards shift dramatically.
Mike McKetta, the lawyer prosecuting the case for the Commission, is to file his reply on the 15th.  The Court of Review will listen to oral argument on Monday.
As I keep saying, stay tuned.
Meanwhile in Connecticut
It's an extraordinary case.  A horrific crime.  A survivor who becomes the voice of vengeance. 
Petit Family
The broad outline of the case seems clear enough to everyone.  Steven Hayes and Joshua Komisarjevsky broke into the home of Jennifer and Dr. William Petit, Jr., robbed and terrorized them, raped and strangled Jennifer, tied their children Hayley and Michaela to their beds,  beat William with a bat and tied him up in the basement, poured gasoline around and set the house on fire.
Somehow, miraculously, the doctor survived.
Hayes and Komisarjevsky both offered to plead guilty in exchange for life without the possibility of parole.   The state refused.  It wants them killed.
And so, after months of jury selection, the trial of Hayes (he's up first, began Monday.  First, three of the jurors bailed.  They were replaced by alternates and the testimony began.
Steven Hayes (left) & Joshua Komisarevsky
It continued Tuesday with Dr. Petit on the stand describing his family and telling his story.  It was, by all accounts, riveting and moving.  But that wasn't the real drama of the day.  For that, we turn to Norm Pattis.
But then the unprecedented occurred. Before the lunch break today, a juror sent a note out to the judge. He had concerns he wanted to discuss. The note was tendered apparently during the gripping testimony of Dr. William Petit, the sole survivor of the Cheshire home invasion. Judge John C. Blue decided to wait until after Dr. Petit finished testifying before addressing the juror's concerns.

When the juror was questioned, he offered the following: He did not think he'd be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state's case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: "What the Hell is this all about?" The sucking sound you heard early this afternoon was that of the prosecution's gonads retreating to a safe, dark place.
Frankly, calling that "unprecedented" doesn't begin to capture how truly bizarre an event it was.  Jurors don't do that.  They may think it sometimes, of course.  (There was the case in Toledo where, after it was over, the jurors said that if they were ever charged with a crime, they wanted the prosecutors who tried that case to be the prosecutors in theirs.  Ouch.)  But they don't go public.  Not near the start.
Except this one did.  Here's the New York Times report.
The juror, John Lively, wrote that he was troubled by the “halting, desultory” approach of the prosecutors, Michael Dearington and Gary Nicholson.
The judge, Jon C. Blue of State Superior Court, read the note in court before questioning the juror. “As a juror in this case,” Mr. Lively wrote, “I am confused by the presentation of the state’s case and bewildered by what seems to be a lack of preparation of this case.”
And a juror who's dissatisfied with the prosecution's case?  Well, gee.  Tough nuggies.  Life's a bitch.  But them's the breaks.
Not this time, though.  This time the judge, the Honorable Blue, and over defense objections, dismissed the juror.  Because, you know, it's an important case.  The state wants to kill.  We can't have a juror who thinks they're screwing it up, who might vote for life - or god help us, might vote not guilty.
But we weren't done.  he Hartford Courant picks up the story right after Lively was excused.
Seconds after Blue excused the juror, another juror sent a note that the judge had to address, delaying the afternoon proceedings even further.
This time, an alternate juror wanted to know how Petit untied himself from the pole at his waist. With the jury seated, Blue told the panel notes about evidence at this stage of the trial are not permitted.
Norm imagines a mistrial by the beginning of next week when they no longer have twelve jurors.  It's not the sort of thing you'd bet on, but then nobody's ever seen anything quite like this.
Only if you say something nice
I've pointed out for years that while the First Amendment protects your right to stand on a street corner wearing a sandwich sign proclaiming "I support the status quo," you don't really need the First Amendment if that's what you want to say.  As a practical matter, the right of free speech is the right to say things that are disturbing or offensive.
Which brings us to the Reverand Lunatic.  You know, the guy in Florida who I won't dignify by naming, the one who wanted to burn the Quran to show we're better than people who'd do something rotten like, say, burn something others think sacred - like the Quran.
Like the idea or loathe it, what seems clear is that it's not a crime to use fire to make a point.  (Yes, the use of fire can be a crime - think arson, for instance - but if the fire's legal, the First Amendment allows you to toss on the Quran.)  See, making a point through fire, that's considered protected speech.  Doubt it?
In 1989, in Texas v. Johnson, the Supremes held that a public flag burning in protest at the Republican National Convention was protected expressive conduct and that the Texas flag desecration statute was unconstitutional.  The next year, in United States v. Eichman, the Court said that the federal flag desecration statute was, similarly, unconstitutional.
Those weren't unanimous decisions (in fact they were both 5-4), but they were clear.  It's deeply offensive to burn the flag as a political statement, but that's the whole point of doing it.  Better not to do it, but the Constitution permits it.
That would seem settled.
And if you can burn the flag, you can burn the Quran.  
Stephen Breyer
Because there's Justice Breyer.
I've made passing reference to this before, and said I'd discuss his peculiar constitutional vision in detail someday.  Frankly, this isn't the day.  So just briefly.
Breyer believe that the key to interpreting the Constitution is recognizing the values it represents - most particularly, the value of what he calls "active liberty."  To answer a close constitutional question, you look at active liberty (no, he never really explains what that means or how to recognize it in a dark alley) and adopt the interpretation that best comports with it.
And if a provision of the Constitution actually conflicts with active liberty?  Well, the provision gives way.  Because the Constitution's values are more important and more to be obeyed than the Constitution itself.  (Of course, he doesn't say that in those words, but it's the idea he sets forth in his interpretive manifesto, Active Liberty.) 
So maybe it's not all that surprising that he's unsettled.  As he told George Stehanopoulos the other day, the First Amendment has limits.
“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”
But, but, but (I'm sputtering here because that makes me so mad).
First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
See the difference?
Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that should have known would cause great harm.  
But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.
And damned scary.


  1. There was the case in Toledo where, after it was over, the jurors said that if they were ever charged with a crime, they wanted the prosecutors who tried that case to be the prosecutors in theirs.

    What case and who were the prosecutors the jury was talking about? Were any jury members named?

    Nice all on the First Amendment issue. Yes, it is scary, and I believe that most people (like, for instance, the geniuses producing commercial news media) are completely, totally unaware of the meaning and ramifications of this statement.

  2. Regarding the First Amendment segment, I am continually astonished at the pervasive misunderstanding of

    the "fire in a theater" example that leaves out the condition of the statement's falsity; I see it in

    even mainstream media stories, seconding what Mad Jack noted. An equally misunderstood aspect of the

    First is that it applies only to governmental interference or censorship - many think it means that they

    can say anything they want anywhere without any repercussions, uh, no.
    I guess it's not too surprising given the dismal lack of understanding that most have of their

    Constitutional rights - that police exploit to arrest and convict in many cases. I was there at one

    point. Let's hope Breyer misspoke; he may have the case wrong, but he has to understand the principle or

    we're in deep doo doo (deeper than I already thought, anyway).

  3. Most people who know the Holmes line know it wrong. But Breyer's supposed to be not just smart (which he clearly is) but someone who knows this stuff. I'm not sure if he doesn't know it right or doesn't think the details significant enough to bother with. Either way, the rest of his statement suggests that he doesn't think the truth of the cry matters for 1st Amendment purposes. And that's really troubling.

    As for the case and the prosecutors, I can't tell you the defendant's name (it was a number of years ago), but it was a murder (maybe aggravated murder) case, jury came back with a manslaughter verdict. One of the defense lawyers was (now-Judge) Linda Jennings. I'd rather not name the prosecutors. They're decent guys and I hate to throw mud on them.

  4. The Connecticut juror: Not one observer who was watching the prosecution has said whether they seemed halting or desultory to them too. Would like to know, but will assume they did not.

    It wouldn't surprise me that a trial that has nothing to do with innocence or guilt and everything to do with whether he gets life in prison or death would seem desultory in its prosecution. The whole trial is really little more than a lengthy sentencing hearing but pretends not to be.

    I wouldn't want to be on that jury. The trial would put the jury in a spot. That one or more would rebel against it makes sense to me. It is an aimless process when guilt is a forgone conclusion.

  5. Wow, Jeff, the last few paragraphs of the Breyer critique are an amazing distillation. I look forward to using this in the future because its not just the kind of argument that makes you sound smart and feel like you won, but the kind that might actually change your opponent's mind.

  6. wow its nice i like the story