Law & Justice: September 2004 Archives
There isn't much in the legal or political world that I respect more than a jury verdict. Even when it comes to cases like OJ -- who we all know was guilty -- once a jury makes a decision I'm generally satisfied. Do juries make mistakes? Sure. But there's no institution closer to the public pulse than a jury, and I'd sooner trust a panel of citizens with just about any question of law than I would trust a judge, legislature, or president. That said, even though I disagree with Jack Balkin's characterization of declining federal executions, and even though I'm strongly in favor of the death penalty, if juries are reluctant to impose it then that's fine with me. Mr. Balkin links to a Los Angeles Times article saying that Ashcroft isn't pleased with the trend:
A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.That's fine with me. Prosecutors need to do their jobs and enforce the laws, and if they don't like the laws to such a degree that they can't do so then they should quit.For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.
Since then, he has pushed federal prosecutors around the country — often over their objections — to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.
With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court- funded group that assists defense lawyers in capital cases.I don't think the Times' claim that public support for the death penalty is waning is accurate, but if juries in particular instances decide not to impose the death penalty then I've got no problem with that.
Mr. Balkin says:
Juries all over the country are telling the courts that death is a matter of last resort, to be used sparingly, and only in the most serious cases. In many places they do not want it to be used at all. This is not timidity. It is not lack of empathy for victims. It is not insufficient concern with justice. It is civilization. By comparison with these juries all around the country, who regard the taking of a criminal defendant's life with supreme seriousness, Attorney General Ashcroft seems a savage, bloodthirsty brute.Mr. Balkin is attempting to construe "civilization" in a certain way, and it's far from obvious to me that many people would agree that executions are necessarily "uncivilized". Capital punishment has been prevalent around the world in every culture for thousands of years, and aside from technological progress it's hard to see how our modern culture is particularly more civilized than those of our ancestors. Much of the argument depends on the definition of the word.
Even aside from that, however, I think it's ungenerous to cast the Attorney General as a "savage, bloodthirsty brute" when his primary concern in this matter appears to be that the law is not being applied equally across the nation, and that that inequality may be the result of the decisions of his subordinates. Inequalities that stem from jury differences are fine, but the federal government is supposed to treat everyone the same. Prosecutors are not elected, they're appointed bureaucrats, and they're supposed to be following the lead of our elected representatives.
Walter Olson at Overlawyered writes that Purdue Pharma has spent more than $250 million successfully defending itself against lawsuits related to its product, Oxycontin. Every legal attack so far over the "often-abused painkiller" has failed, but look how much the suits have cost the company anyway! The obvious solution is to institute a "loser pays" rule such that if you sue someone and lose you have to pay their legal costs. Such a rule would clearly reduce the incentive to sue by adding additional risk to the process.
My question is whether or not there is some type of suit that is often doomed to failure and yet beneficial to society at the same time? That is, is there any reason not to burden losers with the whole cost of the legal action? I suppose one could take the argument too far and say, well, why not execute people who initiate a losing lawsuit? That would create a disincentive as well. True, but such a policy would add an externality to the system, whereas merely shifting costs does not. Are there circumstances in which it's a good idea to allow plaintiffs with little hope of victory to impose huge legal costs on defendants?
Among many other hip considerations, the coolest thing about Samuel Tilley's 205 mph speeding ticket is that it's likely to inspire competitors and copycats. If anyone hopes to beat him not only will they have to go fast, they'll have to go fast and get caught. That's what makes it a challenge. Too bad Los Angelinos are out of the running, unless there's an allowance for traffic conditions and lane closures. Yet another reason that public transportation sucks.
I'm not a lawyer -- though I play one on TV -- but Dana Easter, the DA who was until recently prosecuting Kobe Bryant for rape, has made what I consider to be inappropriate comments.
A prosecutor in the Kobe Bryant (search) case said there was solid evidence that the NBA star raped his 20-year-old accuser, but officials were forced to drop charges after the woman grew "physically ill" from stress and pulled out of the case. ...It may very well be that Bryant raped this unnamed woman, but it's highly inappropriate for the DA to attempt to punish him through these announcements using alleged facts that haven't been proven to any jury. That's what courts are for, and if the DA couldn't prosecute and win then using her position to publicly denounce Bryant is a perversion of justice.Had the case gone to trial, Easter said, prosecutors could have proved the woman had been raped based on her "battering ram" injuries, Bryant's statement to investigators and the statements of three people who saw her after the alleged assault.
"It was a physically violent assault. It was a very degrading assault. It was clearly perpetrated by someone who thought he was entitled," said Easter. ...
"We really believed in her and we still do. I can't emphasize that enough," Easter said.
The idea that journalistic sources should be protected by confidentiality is absurd.
An online petition launched two weeks ago to gather support for reporters facing federal pressure to reveal confidential sources has garnered nearly 3,000 electronic signatures from working journalists, according to organizers. They hope to collect 10,000 names and use them in a major newspaper ad campaign. ...At issue is whether or not courts should have the power to force journalists to reveal their "confidential" sources during the course of a criminal investigation. The journalists here are attempting to create a type of legal privilege akin to the well-known attorney-client, doctor-patient, and husband-wife privileges that allow one person to refuse to testify about anything they know or learned as a result of the relationship.At the top of the petition, organizers placed a statement that says, in part, "We support the reporters in current federal court proceedings who are refusing to testify about their confidential sources and now face stiff fines, even jail. We commend these reporters for standing firm and standing up for First Amendment principles."
There are all sorts of compelling reasons for these privileges to exist that don't come into play with journalists and their sources, but I'll leave that analysis to people who know more about the history than I do. The critical issue here, however, is that there's no way to determine when a hypothetical "journalistic privilege" should be applied. When it comes to lawyers and client, for instance, the scope of the relationship is clear and well-defined. It begins and ends with a contract and relates to specific isses. But all journalists do is listen to people, so essentially anything anyone ever tells a journalist would be protected by privilege and journalists could never be forced to testify about anything.
And then there's the question of who exactly gets to be a journalist. Can I be a journalist because of this blog? Do I have to work for a major newspaper? Or a TV station? Can I print up pamphlets in my basement and be counted as a journalist? If so, then everyone is a journalist; if not, then who gets to be in charge of deciding eligability, and using what criteria? The idea of a "journalistic privilege" is absurd on its face, because anyone ever called to testify could simply claim to be a journalist and refuse.
The distributors of this petition claim that such privilege falls under the First Amendment, but the text makes no distinction between "journalists" and ordinary people. People who work for news organizations have no more and no less freedom of speech than everyone else does -- we're all protected equally by the First Amendment. No one is entitled to special protection or special freedom because of the identity of their employer.
