Friday, April 29, 2005

Filibuster Frist

Students, Faculty, and Public Officials at Princeton University are currently taking part in a "Filibuster Frist" rally on campus at Princeton - as I write it's about to enter its 77th hour.

You can get updates and photos of the filibuster here: Filibuster Frist.

The filibuster is primarily being done by students, but Rep. Rush Holt has participated, several members of the faculty have participated, and maybe most notably Frank Wilczek is scheduled to participate tonight (see site for details).

Frist is a 1974 graduate of Princeton and the filibuster is taking place outside of the Frist Campus Center, a building sponsored by the Senate Majority Leader's family.

Who's Listening to You?

Wiretaps in U.S. jump 19 percent in 2004
This is a rather perfunctory article about a startling rise in authorized government wiretapping into our privacy.

But there are a few nuggets of info which are definite causes of concern:

"...court records which also showed that not a single application was denied."

"The numbers, released Thursday, do not include court orders for terror-related investigations under the Foreign Intelligence Surveillance Act..."

Makes me wonder if the requests are even being examined before rubber-stamping also makes me wonder about the rate of increase of non-authorized wiretaps...

Thursday, April 28, 2005

People v. Harlan NOT People v. Bible...

On March 28, the Colorado Supreme Court overturned a sentence of death (People v. Harlan) – the Court ruling that because certain jury members had brought a Bible into jury deliberations in order to encourage a vote for capital punishment, the convicted murderer was prejudiced in sentencing.

What followed was a mainstream media blitz decrying a “Bible-banning”, etc. aimed at stirring up controversy among religious right-wing political segments, sell papers and increase circulations.

What gets lost in the “religious” reactionaries outrage is simply this:

The Court was right.

Make no mistake, I am a Christian. Yet I have no problem saying this court was correct in its holding – why, because I don’t have an agenda to propagandize for, to raise funds for, etc. Look, we don’t always understand it, and we may not always like it, but what our judges are supposed to do is look at a set of facts, look at the law that relates to those facts, and apply that law to those facts. They should be blind to public response, public outcry, political ramifications, etc. It is not an easy job, to disengage yourself and simply ask the question, “what is the law of this state” and take that answer and coldly apply the law to the facts of an individual controversy or criminal proceeding. I would certainly hope that our judges and justices never concern themselves with a political fall-out – that is not their roll. The fall out should be handled by the legislature. In this case specifically, if there is a public outcry about this in Colorado, the Colorado legislature needs to go change the state law to make an exception for Bibles or scripture in the jury room. If that statute would violate a provision of the Colorado state constitution, then the legislature needs to take an amendment to the constitution to the people. That is how our system is supposed to work. It is not these jurists “fault” for following the law if that law proves unpopular. It is their job to apply the law. Coldly.

I want to look at this case – and debunk the notion that it is a glaring example of the “activist courts” or that it is in any way an attack on Christianity or the Bible. First, a general description of the majority opinion – it begins with a summary of earlier dispositions of the varied decisions and appeals of the case. Then it sets forth the facts of the case. There is a discussion of whether the Court has jurisdiction to hear an appeal from the State (which I will skip). Then there is the analysis of the ‘Bible Motion’ – which is what I’ll focus on.

The Colorado Supreme Court had previously affirmed Harlan’s death penalty in 2000 on issues not related to the ‘Bible Motion’. In that opinion, the Court “expressed particular concern about the voir dire that resulted in the jury’s selection.” But the death penalty was upheld and sent back for further actions on other matters. At that point the ‘Bible Motion’ went before the trial court and that judge found that “Colorado’s legal standards require reversal of the jury’s death sentence verdict in this case.”

In discussing the facts, the court noted, even stressed, the strict jury instructions given to this jury due to some external factors. Those external factors forced this jury to be sequestered, and even more, and more rigid instructions were given. Without quoting all of those instructions, the jist of it was that the jurors were not allowed to consult or discuss the case with anyone or anything outside of the evidence and law presented at trial. It was later established through juror interviews and a hearing before the trial court that about five jurors had studied the Bible and made notes and such on a Friday night, brought at least one Bible and those notes into the jury deliberations and that information was discussed prior to the sentencing – and later in the day the jury reached the required unanimous decision required to impose the death penalty.

Colorado Rule of Evidence 606(b) strongly disfavors any impeaching of a verdict due to juror testimony. It is “designed to promote the finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion.” In fact, it prohibits any testimony of jurors as to any statements during deliberations, or any discussion of anything in any other juror’s mind or emotions or concerning their mental processes. It does contain one exception, “a juror may testify on the question of whether extraneous prejudicial information was improperly brought into the jurors’ attention or whether any outside influence was improperly brought to bear upon any juror.”

The Court relied upon two cases in coming to its decision relating the facts of this case to Colorado law, Wiser v. People, 732 P.2d 1139 (Colo. 1987), and People v. Wadle, 97 P.3d 932 (Colo. 2004). These cases establish a two-part test: -1- a court must make a determination that extraneous information was improperly before the jury; and –2- based on an objective, “reasonable juror” standard, make a determination whether the extraneous information posed a reasonable possibility of prejudice to the defendant. As to the first part of the test, Wiser and Wadle state that any information that is not properly received into evidence or included in the court’s instructions is extraneous to the case and improper for juror consideration. In Wiser it was held improper for a juror to consult a dictionary. In Wadle it was held improper for a juror to conduct internet research which was used in the jury room. It was also held that the extraneous information may be improper whether or not it involved deliberate juror misconduct (specifically ignoring a court instruction). This portion of the test, determining if extraneous information was improperly before the jury, is strictly limited by CRE 606(b). “The court may not take into account testimony regarding the jury’s deliberations, a juror’s mental processes leading to his or her decision, or whether the extraneous information actually swayed any of the particular juror’s votes.” Even with a finding of the first test, the verdict/sentence can only be reversed if it is found the defendant has been prejudiced. Colorado adopts a “objective test” for ascertaining prejudice. Under this test, a court cannot consider evidence of actual impact upon specific jurors in a particular case, but the relevant question is whether there is a reasonable possibility that the extraneous information would influence a reasonable juror to the detriment of the defendant. Wiser and Wadle consider several factors in determining whether improper introduction of extraneous material to the jury room created a reasonable possibility that the defendant was prejudiced. This list is not a formal test, nor exhaustive, but is one way to determine if prejudice existed. Each of these factors are considered appropriate under the CRE 606(b) exception: -1- how the information relates to the case; -2- how authoritative is the source; -3- whether a juror initiated the search for the extraneous information; -4- whether the information obtained by one juror was brought to the attention of anther juror; -5- whether the information was presented before the jury reached a unanimous verdict; and –6- whether the information would be likely to influence a typical juror to the detriment of the defendant.

It is reasonably evident from the trial court record that the Bible and study notes were brought into the jury room, and discussed. There is some dispute in the opinion about that – but that does not seem to be the dispute in this thread. I think that essentially everyone is conceding that the info was brought in, but that it should not be considered improper – so I’m going to skip this part, and assume we can all agree that there were extraneous materials in the jury room discussed by the jurors.

So, turning to the prejudice inquiry, Colorado has a four-step process to determine if the death penalty is used. The first three steps are: -1- prosecution must prove beyond a reasonable doubt that one aggravating factor exists; -2- each juror must consider whether any mitigating factors exist; and –3- the jury must unanimously decide whether any aggravating factors outweighs the mitigating evidence. If –3- is met, then the fourth step is reached – the jury must find that it is convinced beyond a reasonable doubt that death is the appropriate sentence, its verdict must be unanimous, and its imposition of the death penalty must not be influenced by passion, prejudice, or any other arbitrary factor. The court then turns to the factors above to determine of the extraneous material was prejudicial.
Related to critical issues – the written material was directly related to the ultimate issue before the jury.
Degree of authority – The Bible and other religious documents are considered codes of law in many contemporary communities from which Colorado jurors are drawn. (The court then examines the passages in question.) “There can be little doubt that the Bible, including these two texts, is more authoritative to many typical citizens than the internet.”
How information acquired – independent, no authorization from the trial court.
Information shared – it was determined at least one juror showed the information to at least one other and potentially involved other jurors.
Presented before jury reached unanimous verdit – determined it was done before sentencing verdict.
Could a typical juror have been influenced – not a question of if the jury’s decision here turned upon the introduction of extraneous material, but whether a typical Colorado juror could be influenced to vote due to the unauthorized material. It was determined it could. (How much more persuasive to a typical Colorado juror is a Biblical text as opposed other materials?) A religious text mandating the death penalty meets the Wiser and Wadle standard of extraneous information creating a reasonable possibility that a typical juror could be influenced in voting on the verdict.

“We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs in making the extremely difficult “reasoned judgment” and “moral decision” he or she is called upon to make in the fourth step of the penalty phase under Colorado law.” “We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law instructed.”

Due to these considerations, it can be concluded, “Harlan’s death sentence may have been imposed under the influence of passion, prejudice, or other arbitrary factors – the use of an unauthorized extraneous text requiring the death penalty for the crime of murder.”

There is a dissent. I encourage you to read it, I won’t comment on it as much, but I do want to note one thing. The dissent advocates using a subjective standard. This point seems contrary to Colorado law as stated in the majority opinion (specifically that Colorado adopts an objective standard).

I would hope that it can be seen that when the opinion itself is examined, instead of only the headlines so many rely upon, that the Colorado law is related directly related to the introduction of unauthorized materials by certain jury members. Colorado itself has made the same decisions with a dictionary and internet materials involved. In this case, it was a Bible and Biblical passages, and the Court notes specifically that is can be assumed that the Bible would carry more authority than the other sources. No Bible-banning involved.

I encourage you to read the decision if you are interested.