Wednesday, December 17, 2014

Dean Gold Op-ed Explores High Court Ruling on Juror Testimony

By Dean Victor Gold

In a unanimous opinion by Justice Sonia Sotomayor, the U.S. Supreme Court ruled last week that Federal Rule of Evidence 606(b) makes inadmissible a juror’s testimony that another member of the jury lied during voir dire when that testimony is offered to support a motion for a new trial.

Warger v. Shauers was a negligence action brought in federal district court to recover for injuries suffered in a motor vehicle accident. During voir dire, the plaintiff’s counsel asked prospective jurors if there was any reason they would be unable to be fair and impartial. The prospective juror, who later became jury foreperson, answered no. The jury eventually returned a defense verdict.

The plaintiff’s subsequent motion for a new trial asserted that the jury foreperson lied during voir dire. In support of that motion, the plaintiff submitted a juror’s affidavit that, during deliberations, the jury foreperson stated that her daughter once had been at fault in an auto accident and that, had she been sued, her life would have been ruined. Denying the motion, the district court held that the affidavit was barred by Federal Rule of Evidence 606(b), which provides that “[d]uring an inquiry into the validity of a verdict,” evidence “about any statement made or incident that occurred during the jury’s deliberations” is inadmissible, subject to limited exceptions. The 8th U.S. Circuit Court of Appeals affirmed and the Supreme Court granted certiorari.

The origins of Rule 606(b) can be traced to the 18th century and a version of the rule is in place in virtually every state. The rule is venerable and universal because the policy behind it is so basic: Protecting the privacy of jury deliberations is essential both to encouraging full and open debate in the jury room and preventing harassment of jurors after a verdict. Without such a rule, no verdict would be final because the jury’s deliberations and thinking would be open to scrutiny. And because jurors are laypersons charged with the difficult task of applying often complex law to conflicting versions of facts, it would be a rare case where that scrutiny did not uncover misstep of logic or law.

The facts in Warger present a good example of the mischief that might ensue without a law like Rule 606(b). As in Warger, virtually every potential juror in virtually every case is asked the generic question, “Is there any reason why you might be unable to be fair and impartial in this case?” Typically, only those who answer “no” are selected to serve on the jury. But every trial lawyer takes that answer with a grain of salt. Every juror has biases. In fact, lawyers strive during jury selection to impanel jurors who are favorably biased. Few verdicts would survive if statements made during deliberations were admissible to support a motion for new trial on the ground jurors lied during voir dire in response to the generic question about being fair and impartial.

Tuesday, December 9, 2014

Prof. Natapoff Writes About Dark Side of Decriminalization

By Professor Alexandra Natapoff

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

Read the complete op-ed.

Friday, November 21, 2014

The Proposed New BLS Lawyer Replacement Projections

By Professor Theodore P. Seto

This piece originally appeared on TaxProf Blog.

Commentators who believe that the end of the world is near for legal education often point to Bureau of Labor Statistics estimates of replacement needs in the legal profession and compare those estimates to the number of projected law school graduates.

On May 16, 2014, the BLS issued a notice proposing a new method for measuring what it calls “occupational separations” – that is, workers leaving a particular occupation who need to be replaced. The BLS explains that the current method indirectly measures leavers by measuring employment change by age group, relying on an assumption that workers enter at a young age, work in their field until they are old, and then retire, creating opportunities for the next generation of young workers. In this framework, occupation is fixed throughout a worker’s career. The BLS notes: “However true this may have been in the past, it does not apply to many workers today.”

The new method, by contrast, directly measures workers who leave an occupation, "taking advantage of the longitudinal aspects of the CPS monthly survey and supplements."

Wednesday, November 19, 2014

The Critical Federalism Issue at the Heart of the Alabama Redistricting Cases

By Professor Justin Levitt

This post originally appeared on the Election Law Blog.

Justin here, with a thought on last week’s oral argument in two consolidated cases about Alabama’s redistricting process. There’s an issue lurking at the heart of the dispute that may be difficult to spot in the transcript.

The cases concern the rationale behind Alabama’s last state legislative redistricting plan. Press headlines pitched the issue as a tussle between racial reasons and political ones. Such cases can indeed be quite messy … but for better or worse, this dispute is not one of them. Alabama said that its districts were driven by the Voting Rights Act, and not by partisan politics. And by the end of the argument, most of the Court seemed to understand that any deeper partisan impulse was achieved through race-based means. (Look at LULAC — or Judge Kozinski’s Garza opinion — for an explanation of why using race to achieve partisan ends is still race-based action.)

At least some Justices also seemed to understand that Alabama’s districts were not actually driven by the Voting Rights Act. As I’ve written, Alabama instead deployed a poor essentialist facsimile. The Voting Rights Act is a nuanced statute that requires attention to race only after careful consideration of on-the-ground political reality. Alabama cut corners, pegging its districts to raw demographic targets without the necessary homework. Whatever Alabama was following wasn’t the statute on the books.
Which leads to the intriguing buried issue. Why manufacture a false façade for a federal law? Perhaps it was honest mistake about what the statute requires. Perhaps it was an attempt to overpack many African-American voters into a few hyperconcentrated districts, or to change the representative face of the Democratic party in Alabama. Or perhaps the ostensible federal mandate offered the prospect of a convenient path around an inconvenient state structure.

Tuesday, November 18, 2014

The Ferguson Grand Jury: Lessons from the O.J. Grand Jury

By Professor Laurie Levenson

Yes, you read that right. There are lessons from the O.J. Simpson grand jury for the grand jury considering whether to indict Officer Darren Wilson for the shooting death of Michael Brown. Few people remember that the Los Angeles County District Attorney originally convened a grand jury to decide on the fate of celebrity defendant, O.J. Simpson. This was not surprising given that politically controversial cases are often thrown to the grand jury to take some of the heat off a prosecutor in deciding whether to bring charges. Unlike with federal cases, state charges generally do not need to go through the grand jury process. The District Attorney has the power to file charges directly and hold a preliminary hearing to determine whether there is probable cause to support those charges. However, a grand jury provides an elected official cover for making the decision to charge in difficult cases.

Ultimately, O.J. was not charged by the grand jury because they never got the chance to make that decision. The case was removed from the grand jury when the defense complained that pretrial publicity had tainted the grand jury process. Simpson’s lawyers claimed that Simpson’s due process rights would be violated by having a grand jury that had been exposed to the tremendous amount of media coverage and public comment decide whether he should be indicted.

Similarly, one can expect that if Wilson is indicted, his lawyers will challenge whether the grand jury process was tainted. Having a grand jury make its decision in the shadows of a National Guard alert is not an optimal way to run a justice system. The grand jury is supposed to be the buffer for individuals against public cries for justice. However, grand jurors are not immune from this pressure and, in an extreme situations, they may be affected as well. A motion to dismiss a grand jury indictment is almost never granted, but the motion itself will undermine any confidence in charges that are brought. In a case where the whole country is watching, that may be concern enough.


  • Read more about the motion to quash the O.J. Simpson grand jury.
  • Listen to Professor Levenson's commentary about the Ferguson grand jury on KPCC's AirTalk with Larry Mantle.




Monday, November 17, 2014

The Second Battle of Blair Mountain

By Professor Daniel P. Selmi

The first paragraph of an appellate opinion is often bland, perhaps informing the reader generally about the legal issue involved and previewing the Court's ruling. It serves a functional purpose and is not intended to entertain. In contrast, the opening paragraph of Sierra Club v. Jewell,[1] a 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit, immediately grabs the reader's attention by launching into a brief description of a fascinating episode in American history:
The Battle of Blair Mountain is the largest armed labor conflict in our nation's history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600–acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.[2]
This blog posting recounts the story of the litigation over the Battlefield, in which I was one of the lawyers representing the appellants, and the Court of Appeal's opinion.

Tuesday, November 4, 2014

5 Things You Should Know About the California Election

By Professor Jessica Levinson

This post originally appeared on the Huffington Post.

Election day is upon us. What should California voters know?

1. Jerry Brown will be re-elected as the governor.

Drought-stricken California could be hit with torrential rain. Wildfires could sweep the state. A blue moon could shine for three nights in a row. Jerry Brown will still be re-elected.

Do you want to know why? First, because he is Jerry Brown. In California a synonym for "Jerry Brown" is "someone who holds elected office." Brown has held nearly every elected office in the state of California. We know him. We're comfortable enough with him. We're going to re-elect him (again).

Second, because he is running against that guy who oversaw the Troubled Asset Relief Program (TARP). Yes, that's right. You don't even know his name. It is Neel Kashkari, by the way. He is apparently running to see how badly he will lose against the once, current, and future governor. He had handed out gas cards to get people to campaign events, spent a week living as a homeless person, and run a television commercial with a drowning child. Translation? He is going to lose.

2. Gavin Newsom will be re-elected as the lieutenant governor

You know Gavin Newsom, right? He is the former mayor of San Francisco who ordered the city clerk to issue marriage license to same-sex couples back when that violated state law. Still don't know him? He is the one with the slicked back hair who had an affair with the wife of his former deputy chief of staff and campaign manager. I thought that would ring a bell.

Newsom is running against Ron Nehring. Newsom is going to a have "party preference: Democrat" next to his name, while Nehring will have "party preference: Republican" next to his. Since this is California, and Newsom is the incumbent who hasn't done anything disastrous (or otherwise), that means Newsom will win.