Prof. Levenson: California is Overdue in Adopting Rule on Exculpatory Evidence

By Professor Laurie Levenson and Barry Scheck

This op-ed originally appeared in the Dec. 15, 2014 edition of the Los Angeles Times.

More than half a century ago, the Supreme Court established a rule that requires prosecutors to turn over to defense attorneys any evidence pointing to a defendant's innocence. It's known as the Brady rule, and violations of it occur far too often and can lead to devastating consequences. In a dissenting opinion last year, Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals declared that "there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." There is no shortage of examples.

Take the case of Mark Sodersten. In 2007, a state appellate court reversed his 1986 murder conviction after finding that the prosecution failed to give the defense audiotapes of interviews with a key witness that contained evidence pointing to Sodersten's innocence. Tragically, the ruling came too late for Sodersten, who spent 22 years behind bars and died in prison months before he was awarded a new trial.

Or consider Kash Delano Register, who served 34 years behind bars for a 1979 murder in Los Angeles that he always maintained he didn't commit. He was released last year after a judge found that prosecutors and police "repeatedly concealed relevant evidence" that pointed to Register's innocence.

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

By Dean Victor Gold

This op-ed originally appeared in the Dec. 16, 2014 edition of the Los Angeles Daily Journal.

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.

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.