Morning Links

Monday, April 7th, 2008
  • Maine bans novelty lighters. For the children, of course.
  • Grandmother arrested, handcuffed, booked over eight-year-old parking tickets totaling $90.
  • To be honest, I don’t see what’s wrong with this ruling. I guess it’s another example of what’s legal being quite a bit different than what’s just–i.e. something we non-lawyers just don’t understand. Thing is, cheap, slogan-based get-tough-on-crime laws that sound great in campaign speeches often get applied in very unjust, unfair ways. I see nothing wrong with letting jurors know that their conviction of a defendant on what they may feel is a minor offense could well lead to some major time behind bars. The jurors who convicted Richard Paey have said that if they’d known he’d get 25 years, they’d never have convicted him.
  • Chicago lawmaker wants a ban on talking on a cell phone while crossing the street.
  • Phun looks pretty sweet. Alas, no Mac version yet.
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  • 19 Responses to “Morning Links”

    1. #1 |  troy | 

      Courts like to keeps juries in the dark as much as possible. Mueller and Kirkpatrick’s treatise on evidence starts out talking about the reason for rules of evidence is that this is a mistrust of juries. “The hearsay doctrine exists, for example, largely because we thin lay jurors (amateur factfinders) cannot properly evaluate statment made outside their presence….”
      In other words, lawyers think all non-lawyers are just plain too stupid to be able to be trusted with reality. So rules of evidence and jury instructions are crafted with the premise that juries are just too stupid to be trusted with the “big” decisions.
      Why do you think that we are not allowed to let the jury know about jury nullification? Because juries would take it into their hands to nullify prosecutions that they do not think are fair. And we can’t have that.
      I will never be picked to be on a jury because know too much. Doing defense work, I try to pick smart people who can apply logic to see how the State’s case doesn’t fit, when I was a prosecutor, I wanted the dumbest rocks who were going to do what I told them to do.

    2. #2 |  troy | 

      sorry for the run on sentences.

    3. #3 |  Hunter | 

      Regarding the banning of cell phone use while crossing the street, I like this inventive bit of reporting:

      Audra Simel, 28, of Chicago, said she doesn’t have a problem with the bill.

      “It’s taking away people’s basic rights to talk wherever they want,” Simel said. “But they ban cell phones in cars now, so why not on [crosswalks]?”

      It seems like she certainly does have a problem with the bill, but she doesn’t expect her concerns to be paid any attention. Saying that she doesn’t have a problem with it doesn’t seem correct.

    4. #4 |  Nando | 

      I’m torn between agreeing with the judge on this case or not. I can see how a jury doesn’t need to know what a sentence should be. I mean, if a person were to be found guilty without knowing the sentence, but innocent with said knowledge, then it’s not the law that’s wrong, it’s the punishment for breaking it. What this tells me is that the punishment doesn’t fit the crime, not if the guy is innocent or guilty.

      I really doubt it will hold up on appeal, but, then again, what do I know? I believe in full disclosure and that the jury should be made aware of both the sentence that the accused faces as well as their duty to nullify if they so wish. If you think about it, finding someone innocent because of the sentence is a form of nullification, especially in mandatory sentencing cases.

    5. #5 |  Joe | 

      It is while on a jury that a citizen can truly be a single issue voter. While at the ballot box, you must balance a host of policy outcomes and find the most acceptable rather than the perfect representative of your will. While on the jury, you are able to perfectly represent your will in regards to the justice system but only if you are given the facts about the justice system and the implications of your ruling.

    6. #6 |  Ben | 

      With many ‘sex offender’ labled cases, there’s a reason for jury nullification. The jury should know that, in convicting the guy who got busted taking a leak half a block from a playground, you’re sentencing him to 5 years in prison and being labled as a sex offender for the rest of his life.

      The law may read that he’s guilty, but the sentence must fit the crime for there to be justice.

      The legal system in this country has moved too far toward simply blindly enforcing laws and too far away from justice.

    7. #7 |  Michael Pack | 

      I was reading a DA comment site[from Grits] yesterday.On the subject on breath tests for DUI several DA’s admitted without them most DUI’s could not be proven.One even said few are because of a crash or bad driving as the public believes..Most were due to minor traffic offenses[such as a taillight] or roadblocks.They believed refusal should be a crime in it’s self and a .08 or above should be a automatic conviction.Without this evidence,it was said,most DUI’s could not be proven due to lack of harm or reckless driving.If I’m every on a jury for DUI I will remember this.

    8. #8 |  Frank | 

      This is why Chicago bans firearms and controls elections via the graveyard, so that politicians like this aren’t dealt with in a proper manner.

      Calling Dunkin a moron is an insult to morons. This is another one that needs to find a new job as mop-boy in a peep show, but first he needs tar and feathers and a ride on a fence rail.

    9. #9 |  andyinsdca | 

      I wonder what’s really behind the ban on novelty lighters. They’re trying to do this here in San Diego for the exact same reason. They can point to a whopping 300 deaths attributed to kids playing with fire, but none to novelty lighters. I get the odd sensation that there’s some other force at work…

    10. #10 |  ClubMedSux | 

      With respect to Weinstein’s ruling, I think the problem is that our system is predicated on the idea that judges are thoughtful, competent and rational, and that these skills will allow them to ensure fair verdicts and fair sentences. Taken in a vacuum, it makes perfect sense that juries shouldn’t consider sentences: if you’re guilty, you’re guilty, regardless of what sentence is awaiting you. However, judges nowadays either have their ability to ensure fairness taken away via mandatory minimum sentences or sentencing guidelines, or they’re too incompetent/scared to use their authority to make sure justice is served. I think the biggest flaw in our justice system is our approach to appointing, retaining and utilizing judges. If you have a competent judge with the proper authority, other issues such as prosecutorial misconduct can be addressed and largely minimized/avoided. But an incompetent, or poorly utilized, judge opens the doors for all sorts of other problems.

    11. #11 |  Salvo | 

      I am going to echo Clubmed. The reason behind leaving sentences out of jury deliberations is that it wasn’t their role; there was already a safeguard in that a judge was responsible for imposing the sentence(within reasonable limits). But when the legislatures started interfering in the judicial branch’s affairs, they’ve effectively removed one of the checks and balances in our system. Since the judge in a lot of cases now has had his primary role removed or reduced, you need somebody in the system who can provide that check; since the prosecutor can’t do it, and the defense has no power, that leaves the jury. I’d be okay with leaving the jury in the dark if we got rid of legislated punishments.

      Checks and balances people. Checks and balances. This is what happens when people start putting their fingers on the scales.

    12. #12 |  parse | 

      Hunter, I read Audra Simel’s comments differently I think the reporter accurately characterized her stance, and it’s part of the reason government is able to chip away at our civil liberties without the resistance such efforts should engender. Simel accurately reports that the proposed measure is an example of “taking away people‚Äôs basic rights” but since similar encroachments are already tolerated, her final reaction to this latest bit of governmental overreaching is “why not.”

    13. #13 |  eekabug | 

      Im just a poor English major but can someone explain the appeal of Phun?

    14. #14 |  OGRE | 

      I’d agree with Nando’s line of reasoning.

      If a jury would refuse to convict because the sentence would be too long, then the jury has decided that there is a problem with the law such that it should not be enforced.

      This is no different in my opinion from nullifying due to determining that there is a problem with the actual charge itself. In the latter case, the jury is determining that any sentence is too severe for the proven conduct; in the former, the jury is determining that the given sentence (or to be more precise, either the minimum or the likely sentence) is too severe for the proven conduct.

      Just for kicks, a hypothetical: State Legislature decides that speeding has become too big a problem (or more likely, certain construction firms that specialize in building prisons together with certain prison management firms have donated vast sums to key legislators). Legislature modifies the speeding law to impose a sentence of 10-30 years in prison for speeding even 1 mph over the posted limit.

      Eighth amendment issues aside, I think most people would consider the following to be true: a) a statute making speeding a crime is not unconscionable (and is possibly a good thing), and b) a penalty of 10-30 years for speeding is manifestly unjust.

      How would it be wrong for a jury in a speeding trial in this case to say “We will not convict because the sentence is too severe, even though we believe beyond a reasonable doubt that the defendant committed the crime of speeding.”

      I see no problem with allowing the jury to know what the sentence for a charge is (either the potential, the likely, or the minimum sentence, depending on how sentencing is done in that jurisdiction). I would suggest adding a rule to the Rules of Crim Pro along the lines of allowing such information to be disclosed to the jury upon pretrial motion of the defense. If necessary, a hearing could be had pretrial to determine what the court determines to be the appropriate sentence of which to inform the jury. For example the rule could state that the potential sentence (i.e. the statutory sentencing range) can be disclosed, but with the additional information that possible alternative sentences such as probation, suspended sentences, home confinement, etc., are applicable if so applicable in the given case.

    15. #15 |  Raidsmith | 

      The appeal of Phun, eekabug? Hard to say. Why are Rube Goldberg contraptions fun to watch? Why were the Roadrunner and Wile E. Coyote so fun to watch? Physics is neat. At least to some.

      As for Balko’s claim that there is no version for the Mac: True. But there is a program called iPhysics that you can install on your Apple iPhone. If you Jailbreak it first. It is like a paired down version of Phun, but it is great for filling a few idle minutes. And you get to have a little icon on your iPhone that is the famous picture of Einstein sticking his tongue out at you.

    16. #16 |  DaveT | 

      Honestly, I can understand the reasoning behind Maine novelty lighter ban to some extent. Although they could have just as easily required that the the lighters be shelved at heights unreachable by kids and called it a day.

    17. #17 |  markm | 

      That’s the Judge Weinstein that ignored the Protection of Lawful Commerce in Firearms act and refused to dismiss lawsuits against gun manufacturers for making products that work properly. He’s probably the most overruled judge in America.

      And for once I agree with him. Even a stopped clock is right twice a day. But he’s going to be overruled again. Can’t have us peons who didn’t have our moral sense educated out of us in law school interfering with our betters…

    18. #18 |  Ochressandro | 

      Mayor Daley has often said he’s not a fan of government intruding into people’s lives[.]

      Which alternate universe is this article from?

    19. #19 |  supercat | 

      One issue I’ve never seen discussed with regard to informing juries about sentences is /mens rea/ (read, roughly, criminal mind). Generally, the more severe the penalty for a particular ‘crime’, the stronger should be the state’s burden of showing /mens rea/.

      For example, suppose a particular person is charged with obstructing an emergency vehicle because his car was in a fire station’s driveway. The car had run out of gas, and he had pulled into the first available turn-off to get out of traffic; he then took a gas can and proceeded to walk toward a gas station half a mile away.

      If those were the facts of the case, then I would expect that a jury should convict if the penalty for the crime were a $50 fine (running out of gas was most likely a result of negligence, and with better judgment he should have been able to have his car moved sooner). If, however, the penalty were 5 years in prison, I would suggest that the jury should acquit. While a serious prison term might be appropriate in a case where the state could show someone deliberately impeded the progress of a fire crew, it would hardly be appropriate absent deliberate intent.

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