Where's Travis McGee?

What's it like to be a juror in a high profile trial? Ask Emily Steel.

I've always wanted to serve on a jury. I suppose that wish comes from many different experiences: Twelve Angry Men, my father being a judge, me becoming a trial lawyer. Unfortunately, I won't have that chance anytime in the next 20 years or so - and I might never get that chance.

I must live vicariously, which is why I like this article. Wall Street Journal reporter Emily Steel was a juror on the Jack Jordan trial (otherwise known as the Uma Thurman's stalker trial). The article is an interesting look into the jury's deliberation.

As I read the article I was surprised that the 12-person jury included, along with Ms. Steel, two lawyers. I was also a bit curious about that fact that one of the lawyers seemed to be giving legal instructions to the jury. Ms. Steel wrote:

Then we returned to the stalking charge. Our discussions began to circle again around the same points. We broke the law down into pieces.

The first point was obvious: Were Mr. Jordan's actions clearly directed at Ms. Thurman? Obviously, they were. But did he have a legitimate purpose -- other than to hound or intimidate her -- to come to her movie set, knock on her door and send her note after note?

Eleven jurors agreed that he didn't have any business contacting her. But we had to reach a unanimous decision.

Again, we turned to the law. One juror maintained a dissenting view. He felt that while Mr. Jordan's actions were inappropriate, they didn't seem to cross the line into criminal behavior. However, after reading the judge's instructions again, he finally agreed: Mr. Jordan had no legitimate purpose in his relentless pursuit of Ms. Thurman.

But I had a question. The charge was for the period from May 1, 2005, until Aug. 17, 2007, but Mr. Jordan's obsession wasn't pushed over the edge until August last year. Could we say he was guilty of the stalking charge, if he wasn't stalking her for that entire period?

One of the lawyers on the jury said that his behavior wasn't to be interpreted in a vacuum. Each of his actions during that period -- from the praying-girl card Mr. Jordan delivered at the movie set to the notes he pushed through her door -- was to be interpreted as one criminal act.

If that was the case, then I could say he was guilty.

At first blush, it appears that the lawyer's instruction to the other jurors was probably a correct statement of the law. But I have wonder if it fully agreed with the judge's instructions to the jury. I think if I were ever serving on a jury I'd be very careful to avoid a situation where the other jurors relied upon my greater knowledge of the law to determine how they would vote on guilt or innocence. And in the situation that Ms. Steel describes I'd be very likely to say, "I think the judge instructed us to consider all of the defendant's actions between May 2005 and August 2007 together in order to determine if he was stalking her. But don't rely on my interpretation. If you have any questions about how to apply the facts to the law we should ask the judge to clarify his instruction."

Humorous Advertisement for Government Appellate Job

The Navy is seeking to hire a civilian attorney to represent the government in court-martial appeals. Here is the link.

Hint to the government: If you're going to post a job listing with the goal of enticing an appellate attorney to come work for you, perhaps you should proofread the advertisement. Oh, and if a military attorney calls your point of contact to alert you to the errors in your advertisement, you might think about correcting those errors.

This position is located in the Department of the Navy's Office of the Judge Advocate General, Appellate Government Division.  Principal duty and responsibility to serve as a complex-appellate-litigation specialist.  Incumbent (?) provides expert legal counsel, advice, and guidance in extremely complex and sensitive cases.  Utilizes creative and an extremely high degree of legal acumen (as opposed to a low degree of legal acumen?) to address numerous military-justice issues.  Incumbent is responsible for prosecuting the appeal of extremely complex cases with potential long-term or signification impact on the Government's interest, and cases where the death penalty has been adjudged against an appellant (I'm glad the death penalty isn't adjudged against the government). Incumbent will represent the Government in such cases before the Navy-Marine Corps Court of Criminal Appeals (NMCCA), the United Status Court of Appeals for the Armed Forces (CAAF), and the Supreme Court of the United States, as directed.  Incumbent will prepare persuasive appellate briefs in accordance with the applicable rules of the court and various legal resources to ensure the Government's interest are zealously safeguarded.  Incumbent will present oral arguments before the appellate courts and work with trail counsel to preserve issues for appeal.  Incumbent will also be responsible for preparing any applicable motions, such as requests for extraordinary relief, certification requests, and other pleadings and position papers deemed necessary in support of the Governments' (how many governments are we talking about?) interests.  Incumbent will also answer time-sensitive-military-justice questions from field activities regarding ongoing trials.

Appellate Advocate of the Day: Roger Phipps of New Orleans!!!

There's no reason to beat around the issue - the U.S. Fifth Circuit's description is more than adequate. Read the excerpt below to see why Roger Phipps is my Appellate Advocate of the Day. (If you want the whole case, it's Hartz v. Administrators of the Tulane Educational Fund, et al.)

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful.4 Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

Here's footnote 4:

4 An example of Phipp’s interaction with the panel is included below.

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she’s a doctor. She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.

Judge: That’s not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That’s why I wore a suit today, Your Honor.

Judge: Alright. We’ve got your attitude, anyway.

Civilian Contractor charged under the Uniform Code of Military Justice

It seems everyone in the world was scooped by CAAFlog when they reported today that "the Army has charged a civilian contractor for the first time under the amended Art. 2(a)(10), UCMJ."

CAAFlog also reports that the DOJ couldn't take the case because the defendant is a Canadian national and the viction was not an American national.

I'd post the charge sheet - but the nanny-state software that NMCI has installed on our system won't let me at CAAFlog's link. Perhaps that band of pirates will post the file in a format that will allow us to read it at work.

Go Navy.

Prosecutorial Misconduct in Closing Arguments - Fifth Circuit says that enough is enough.

Prosecutors (and every defense attorney) should read U.S. v. Gracia, 07-40245 (5^th Cir., March 31, 2008). It's one of those cases that reminds prosecutors: Yes, you really can snatch defeat from the jaws of victory - just argue improperly in closing!

From Decision of the Day:

A unanimous panel of the Fifth Circuit has reversed a criminal conviction on the ground that the prosecutor used his closing argument to improperly bolster the credibility of government witnesses.

Defendant Apolinar Gracia Jr. was a passenger in a border-crossing Impala that contained 50 kilos of cocaine. The key issue for trial was whether Gracia knew that he was sharing a ride with a half a million dollars in drugs. And the key evidence was Gracia’s confession, which he made in front of two border control agents. The prosecution only had the agents’ testimony on this issue, because the confession was not recorded, nor was there any written statement.

The prosecutor made four sets of comments to prop up the agents’ testimony:

• telling the jury that the agents were “very, very credible;”
• asking rhetorically whether an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury;”
• stating, “I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered;”
• and telling jurors that an acquittal meant that the jury believed that the agents”got out of bed” on the day they arrested Gracia and decided that this was “the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia.”

Gracia was convicted and he appealed, arguing that these comments violated his right to a fair trial. Because Gracia’s attorney did not make a proper objection, Gracia needed to establish that these comments were plain error requiring reversal. This is a high hurdle in any circuit, and in the Fifth Circuit? Good luck with that.

Not so fast, says the Fifth. The panel concludes that the bolstering seriously affected the “fairness, integrity, and public reputation” of Gracia’s trial. Writing for the Court, Judge Wiener writes,

Witness bolstering is particularly injurious when, as here, it involves the testimony of the only witnesses (and virtually the only inculpatory evidence) against a defendant. The testimony of the agents was the only evidence tending to prove Gracia’s knowledge of the presence of drugs in the car’s secret compartment. We cannot permit the prosecutor’s remarks to be swept under the rug by the broom of the harmless error doctrine. In this case, a slap-on-the-wrist in obiter dicta will not suffice.

In other words, “We’ve let you slide for long enough, folks. Time to get serious about seeking justice rather than seeking convictions.”

And everyone said, "Amen."

Teacher busted for having sex with student. Is this even news anymore?

Here's the link. The last line of this article tells me one thing: That is one seriously bored reporter.

A 25-year-old female math teacher and track coach at Wantagh High School was accused of having sex with a 16-year-old male student. Heather Kennedy was arrested yesterday, charged with statutory rape and released on $35,000 bail.

According to police, the student had text-messaged Kennedy on March 19 and picked her up. After a few hours together, they went to the Massapequa High School parking lot where he "asked his teacher...if she wanted to have sex and she agreed."

The student broke his midnight curfew and, since his cellphone died, apparently called his father from Kennedy's phone, claiming he was with friends. But his father didn't believe him and the student eventually owned up to being with Kennedy. Detective Lt. Richard Zito said, "We believe it was a one-time incident."

Kennedy was immediately suspended with pay and is described as a well-liked teacher. One senior said Kennedy helped her get into Iona College, "She was the kind of teacher, if you had a problem, you could talk to her, and she would listen." Another said, "I'm really shocked. She's an amazing teacher. She's willing to do anything with the students."

For the admiralty attorneys out there (both of you): 2nd Cir. denies NYC limitation of liability in ferry allision.

In my minimal readership, there is a small collection of maritime lawyers. And for you fellow maritime pettifoggers I present this article. (More news here and here.)

It seems that the Shipowners Limitation of Liability Act will provide no protection to the mass of martime-tort claims arising from the 2003 Staten Island Ferry allision. What does that mean in practical terms? It means that City of New York can't limit it's liability to $14.4 million, which would have been a drop in the bucket compared to the potential unlimited liability.

To date, 125 of the 186 personal injury claims filed after the accident have been settled, for a total of $35.5 million. Of the 186 claims, 59 cases are still pending, and two were discontinued.

Title 46 United States Code Section 183 (the Shipowners Limitation of Liability Act) states:

(a) Privity or knowledge of owner; limitation

The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

(b) Seagoing vessels; losses not covered in full

In the case of any seagoing vessel, if the amount of the owner’s liability as limited under subsection (a) of this section is insufficient to pay all losses in full, and the portion of such amount applicable to the payment of losses in respect of loss of life or bodily injury is less than $420 per ton of such vessel’s tonnage, such portion shall be increased to an amount equal to $420 per ton, to be available only for the payment of losses in respect of loss of life or bodily injury. If such portion so increased is insufficient to pay such losses in full, they shall be paid therefrom in proportion to their respective amounts.

Austrian Government Expands Art Restitution Program

Courtesy of ARTINFO:

The Austrian government has announced it will broaden current rules governing the restitution of artworks and other property looted by Nazis during World War II to apply to private foundations following criticism from the country's Jewish community, reports Reuters.

As of now, such institutions, including, notably, Vienna's Leopold Museum, have been exempt from claims for art seized during the Nazi period.

Debate was revived after Austria's Jewish community leader, Ariel Muzicant, said in a television interview last month that the Leopold Museum should be shut down until the law was changed. Although classified as a private foundation, the major tourist attraction is state-funded. Founded by Egon Schiele expert Rudolf Leopold, the museum is home to the Schiele painting Haeuser am Meer, which has been claimed by a family in Britain. One report estimates the value of the work, which was seized by Nazis in 1938, at $15 million.

"I have never extorted from anyone and never bought anything that I knew had been Jewish property," Leopold told an Austrian paper last week.

The government is also seeking to extend the historical period covered by the law, from the current start date of 1938, when Hitler annexed Austria, to 1933, when he first came to power in Germany. It is unclear how much more property will be addressed by the change.

In related news, the U.S. Congress is considering a similar restitution program for Pre-Columbian art in the possession of federally-funded museums. (Just kidding.)

You don't get these cases at Biglaw . . .

Over at Quizlaw, Seth hit the nail on the head: "I have so many questions. . ."

Robert Rauschenberg's trash: Is it art? And, if so, who owns it?

In an interesting case from Florida, Robert Rauschenberg has filed suit against a local artist/gallery owner. Apparently, the defendant has sold Raushenberg's work without the artist's permission. And, more interestingly, the work that the defendant sold was acquired by going through Rauschenberg's trash. Here is an interesting article on the case.

I'd love to try this case - the issue is fantastic. If Rauschenberg throws away his work product, does the law of abandoned property apply? Does the artist retain the right to declare what work is authentic? Does the artist still own his artistic materials - even if he discards them as unusable or undesirable?

And how do those questions apply to long deceased artists? For example, can an auction house sell a Rodin sketch as an authentic Rodin if it was merely discarded work product that he used to create a completed piece of art?

(Hat tip: The Art Law Blog)