Torvik & Gillette on Prosser v. Bradley

This post introduces a new feature:  Conversations™-- in which Torvik and Gillette discuss current events with utter seriousness.

TORVIK:  Mr. Gillette, I wanted to get your take on this bizarre Wisconsin Supreme Court fracas.  More detail – or is it spin? – is emerging.  What's your gut feeling on this?

GILLETTE:  It is clearly spin.  As for what actually happened, I assume either Prosser or Bradley is lying.  It would seem one of them has engaged in behavior that is inexplicable, either lying about being attacked by a coworker or a man attacking a 60-year-old woman.  I did agree with that hack Alex Pareene that Althouse’s take on the episode/defense of Prosser is stupid.  What is your take on it?

Just another day at the office ...

... at the Wisconsin Supreme Court.

Jurors using bad judgment.

There is an old joke that the definition of a jury is 12 people too stupid to get out of jury duty. There is also an old saying that there is some truth in all kidding. Exhibit A to this saying is Daniel Matz. Mr. Matz was a member of a jury on a rape trial in Queens, New York.

The trial lasted over a week and the jury was into its third day of deliberations when Mr. Matz sent two text messages to a friend during the deliberations. In a message sent at 2:08 pm on June 7, Mr. Matz wrote," 5 Doubting Thomases don't know for certain, And were this not a rape case I'd pull the rug from under the prosecution and vote to acquit." As if to make extra sure that the recipient of the email understood that, the emails were sent from the deliberations, Mr. Matz wrote that he was sending the emails from "a 12x20 jury room." Mr. Matz noted that the WiFi in the jury room was "excellent" and ended by writing, "Juror #5 reporting to you live."

Who was the lucky recipient of these texts? Michael Nunley, an assistant district attorney in the Bronx. Put another way, Mr. Matz was writing to a prosecutor about jury deliberations during the deliberations. Mr. Nunley, who apparently has better judgment than Mr. Matz, promptly informed the court that he had received the texts. The judge then declared a mistrial. He also fined Mr. Matz $1,000 for contempt.

Mr. Matz, however, got off easy compared to Exhibit B, Joanne Fraill. Ms. Fraill was a juror on a drug trial in England. While the trial was going on, Ms. Fraill contacted Jamie Sewart, a co-defendant who had already been cleared in the case. Ms. Fraill told Ms. Sewart details of the jury deliberations while the jury was deliberating. In addition, Ms. Fraill did internet searches about the case. Both these things were violations of her oath as a juror. Like Mr. Martz’s trial, Ms. Fraill’s actions resulted in a mistrial.

Where Mr. Martz was simply fined, Ms. Fraill was sentenced to eight months in jail. In sentencing Ms. Fraill, the judge wrote:

Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial

Imposition of Ms. Fraill's sentence will be suspended for two years because she has a three-year-old daughter.

In both cases the jurors were given an explicit instruction not to talk about the case. To what do we attribute their subsequent disobeying of the instructions? If we were to follow the joke I mentioned at the beginning of this post we would say their stupidity was to blame. That is certainly possible. As H.L. Mencken put it, "no body ever went broke underestimating the intelligence of the American people." I suspect that they probably didn't have any idea that there would be a penalty for breaking the instructions. Also, another reason they disobeyed the instructions might be the same reason a lot of criminals commit crimes in the first place--they probably didn't think they would get caught.

UPDATE: As one of our readers noticed, Ms. Sewart and not Ms. Fraill was given the stay in her sentence (Ms. Sewart was given a two-month sentence).

"My prediction: a sloppy majority opinion and a sarcastic dissent."

For once, one of my predictions comes true.

France's dwindling wild hamster population.

Unlike some, I have never given a lot of thought to hamsters. To the extent I considered them, they were simply a pet that some of my friends had growing up. If I had given it some thought, I guess I might have considered that at some point hamsters were domesticated (to the extent that one can claim that an animal kept in a cage is domesticated). But it certainly never occurred to me that hamsters exist in the wild. It turns out that they do. It also turns out that the wild hamster is not doing well in France.

The Environmental News Network reports that the European Court of Justice ruled that France has not done enough to protect wild hamsters in their habitat in the Alsace region. France has apparently allowed harmful crops and urbanization to destroy 1000 hamster borrows between 2001 and 2007. Apparently, hamsters are counted as living one per burrow. 800 wild hamsters are thought to remain in Alsace. It is not clear to me if we should interpret the burrow destruction to mean that France's wild hamster population has declined by 50% in 7 years.

The Court's ruling (or maybe the Court's press release about the ruling) is here. As I read it, the crop that is harming the wild hamster habitat is corn. Perhaps the apparently incompatibility between wild hamsters and corn is an undisclosed reason as to why Michael Pollen and the makers of the documentary "King Corn" are so anti-corn.

Crops that are favorable to hamster habitat are "standing cereal crops" such as lentils. Lucerne crops, known as alfalfa in the US, are also favorable. Apparently the French government needs to achieve a crop ratio of 20% standing cereal crops and 2% lucerne crops in the hamster habitat areas. According to ENN, If France fails to comply with the Court's order, it will face daily fines. How the monies from those fine are used to benefit the wild hamster is not discussed.

"'I gotta make a choice and go with the intelligent woman who's every bit as attractive"

That's what the inimitable Ed Rollins says, channeling the median Iowa caucus voter to argue that Minnesota's Michele Bachmann is already filling Sarah Palin's niche in the race for the Republican nomination for president.  That niche being "attractive woman," apparently.

“I didn’t do it, but if I did I was entrapped.”

According to Judge Easterbrook, that's not a very good argument.

Dangerous moves

A while back, I mentioned that until just a few years ago "dancing in the streets" was illegal in Minneapolis.

Apparently, however, dancing in the Jefferson Memorial remains criminal:



More here.

UPDATE:  As the article at Reason.com notes, these reprobates were at the Jefferson Memorial because of a recent D.C. Circuit case holding that there is no constitutionally protected right to dance in the Jefferson Memorial.  Here's my favorite part of the opinion:

In creating and maintaining the Jefferson Memorial in particular, the government has dedicated a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums.

Yes, you read that right:  the most powerful appeals court in the land actually wrote that "the Jefferson Memorial [is] . . . a space . . . that is incompatible with the full range of free expression."

Whoa.

Oops.

From time to time we see stories about how justices on the Supreme Court aren't recusing themselves enough. It is rare to see a justice agree with these articles. However, according to this post on Law.com Justice Alito has admitted that he should have recused himself on the "fleeting explicatives" case. Justice Alito says he made a mistake by hearing a case where he owned stock in one of the defendants.

In 2008, the Supreme Court heard FCC v. Fox Television Stations. The case was about whether the FCC could fine TV stations when a fleeting explicative was uttered (an example might be someone swearing during a speech after winning an Academy Award). ABC was one of the defendants in the case. ABC, as you probably know, is owned by Disney. Justice Alito owned stock in Disney when the case was heard. Apparently, his mother thought it would be a good present for Justice Alito's children to each own $1,000 in Disney stock. In particular she thought her grandchildren would enjoy having the actual stock certificates. I think we can all remember the happy days of our youth when we would pull out our stock certificates and make trades with the other kids in the neighborhood for the stocks we liked. Sometimes someone would make a foolish trade, say Sony for American Motors Corp., but that is how kids learn.

The case was a 5-4 case with Justice Alito joining the majority to reverse the appellate court. A 4-4 tie would have meant the appellate court decision would stand. As such, Justice Alito's participation in the case was a big deal.

Because of his ownership of Disney stock (the article isn't clear as to why grandmother Alito gave the stock to the Justice rather than the grandkids. It is also unclear on why Justice Alito thinks he lost money when he evntually sold the Disney stock. ), Justice Alito should have recused himself. The reason for this recusal is that one might think that a judge who owns a piece of the defendant would rule for the defendant regardless of the merits of the case. Justice Alito, however, stuck his thumb in the eye of his corporate masters and joined the majority in ruling against ABC.

What do we make of Justice Alito's admission that he made a mistake? Should justices admit that sort of thing? Does Justice Alito's admission give you more faith in the judiciary? Does Justice Alito's ruling against ABC call into question the theory on when judges should recuse themselves? Finally, what should ABC do about the fact that it lost because Justice Alito should have recused himself?