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).

Seeing is believing; and sometimes it is a crime

At Mr. Gillette's request, I am separately posting my response (originally posted as a comment) to his very interesting post about the recent sentencing of a government attorney in Maine on child pornography charages. 

Mr. Gillette focuses not on the case itself, but on commentary about the case by Peter C. Lomtevas, an attorney in New York.  I'd like to defend Mr. Lomtevas a little bit.

Mr. Gillette is correct that Lomtevas's points are somewhat disconnected to the actual case at hand. Namely, this was not a case of planted porn, and the AG's conduct went beyond the "mere possession" of child pornography -- the government's trial brief details quite a bit more than that, including transferring the materials across state lines.

But I think Lomtevas's aim was broader -- he's indicting the laws that criminalize the mere possession of child pornography because they lead to invasions of privacy and are too easy to use offensively. As he says, "The real problem in these situations is that the man did not produce these images, he only shuttled them around." I agree that this a problem. Of all the child-pornography prosecutions I have become aware of, not one involves the actual production of this heinous material.

Why not? Well, Lomtevas has a theory: "the United States has a fundamental inability to control anything that is on the internet just like it cannot control its own borders or the foreign production of drugs." In fact, my guess is that the vast majority of this material is produced overseas. The result, as Lomtevas points out, is that "one producer [of child porn] can cause the incarceration of potentially millions of people. The U.S. has no control over the producer but can attack its own citizens."

And what exactly are these citizens being attacked for? It seems beyond dispute that the production of child pornography is far, far more destructive and culpable behavior than downloading, uploading, or carrying it across state lines in a computer. But our entire enforcement regime against child porn seems focused on this lesser conduct -- going after the perverts for whom the Internet has opened up a terrible opportunity to indulge their deviant fantasies, but who would likely (in my opinion) never harm an actual child. In my opinion, this lesser conduct should not be illegal, given the invasions of privacy and thought policing it invites. But if it is going to be illegal, the punishments should be far, far lower than they are. Viewing pictures of the molesting of a child is not laudable behavior; but it is utterly distinct from actually molesting a child. Our law bizarrely treats them as virtually identical acts.

Man pleads guilty to possession of obscene "Simpsons" porn. Why?

As reported by The Onion's AV Club:

A former middle school teacher in Idaho is facing up to 10 years in prison for downloading Simpsons porn—that is, pornographic cartoons depicting child characters from The Simpsons engaged in sexual acts. After a search warrant led to the discovery of more than 70 such images on his computer, 33-year-old Steven Kutzner immediately resigned and pled guilty at a subsequent hearing.

The prosecution raises serious constitutional issues.  The Supreme Court has held that "virtual child pornography"--e.g., cartoon depiction of child-characters having sex--is protected by the First Amendment because, unlike real child pornography, it doesn't require the actual abuse of actual children to be created.  See Free Speech Coalition v. Ashcroft.  Congress responded by narrowing the statute somewhat.  Now it is a felony to possess:

Intercepting emails is a federal crime

As affirmed in this recent opinion by the Seventh Circuit.  Chief Judge Easterbrook sets the scene, almost too pithily:

David Szymuszkiewicz was in trouble at work. His driver’s license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers’ homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client. She discovered a “rule” that directed Outlook to forward to Szymuszkiewicz all messages she received. Szymuszkiewicz was convicted under the Wiretap Act for intentionally intercepting an electronic communication. See 18 U.S.C. §2511(1)(a). 

 Intrigue at the IRS.