Jury Impeachment, etc.

Jury Impeachment, Senate filibusters, Jury of your Peers, and Sam Alito

I. Case of the Week:

I have decided to talk about an issue of civil procedure because it is the area I feel I need the most work. This week we are looking at the issue of balancing the desire to give a losing party relief from wrongful conduct by the jury against the policy goal of preventing instability of verdicts, fraud, and harassment of jurors. What we are talking about here is a juror who, after the jury has returned a verdict, comes forth to the judge or a litigant or the press and declares that the verdict was not correct for any number of reasons. The examples range from one member of the jury reporting being pressured by the other members of the jury to reports of pressure by the bailiff to hurry up with a verdict. There was also an example of reports of rampant drug use by the jury during the trial and the deliberation. The common law rule, called the “Mansfield Rule” laid out by Lord Mansfield in Vaise v. Delaval (1785) stated that “no man shall be heard to allege his own turpitude” (he said it in Latin, which I have omitted so as to avoid that trend to make doctrines sound more important simply because we do not understand the words) and it basically prevented any party from being able to request a new trial based upon an affidavit from a juror as to some mistake or unjust influence in casting a verdict. I can see the rationale for this. Outside of the protection of a trial, the courtroom, the presence of other jurors, what is going to stop a juror from being either harassed or bribed into claiming injustice in arriving at a verdict? Before reading these cases I had not considered juries from this perspective, and maybe it is because there seems to be a general sense (at least from laymen (which jurors are supposed to be) that jurors are safe in making their verdict and that what happens in the jury deliberations really will stay there, and that people will respect that decision. I am sure if I did some research into it, even on Google, I would find instances, but I still have the feel that we somehow respect the decision of jurors, and I think this is a good. And yet, I agree with the holding in People v. Hutchinson (455 P.2d 132, 1969) that there are instances where it is important to not hold to the Mansfield rule simply because it is stare decisis. (there I go using Latin after what I said above, but this is a pretty common term around here essentially meaning that we should stick with judicial decisions). In Hutchinson, the court makes a difference between the internal processes of a jurors mind and overt conduct, conditions, or events that are observable by other jurors. The former cannot be impeached by disallowing one juror to upset a verdict for reasons that cannot be validated by other members, whereas the latter allows the jurors to be witnesses to prove objective facts as to corruption or mistake. No jurisdiction seems to have a problem with jury impeachment in instances of miscalculations where the verdict runs counter to what the jury collectively though they were doing, but this rule developed in Hutchinson seems to be the best solution for dealing with those cases where the verdict is called into question. It both has a protects against the possible corruption of one juror an potential injustices to the loosing party as well as protects the sanctity of the jury deliberation.

II. At Lawge:

This week, we will most likely see the confirmation of Sam Alito to the Supreme Court, and it is likely to come on the same day of President Bush’s State of the Union Address. I am sure he will be gloating about nominating such an impartial interpreter of the law and how the Senate showed their strong support for this great nomination to the court. Many of us do not feel that way and there is a lot of information to show that Sam Alito is far afield from the American mainstream when it comes to his judicial philosophy. I do not think that a filibuster will work in the Senate, although I admire John Kerry for trying. I find it unfortunate that people interpret his attempt at a filibuster as a waist of time, and that the democrats should fight battles that they should win. That attitude neglects to recognize that even on a symbolic level there are enough people who really find Alito as an inappropriate replacement for O’Conner that they are willing to push the vote off for some time through a filibuster to make a showing of their distaste. I hope Kerry is successful in postponing the up-down vote at least until after the president’s speech. He will say enough as it is to make me want to throw up without having a gloating ,cocky smile on his face about the confirmation of his second, no third, nomination to the Supreme Court.

I also want to plug my source of information on the confirmation hearings, since the topic is almost never breached in law school despite its seeming importance to our future as lawyers. I listen regularly to the Alliance for Justice “Supreme Court Watch” Podcast. This show is informative and entertaining and comes in an audio form so you can listen even when your eyes are about ready to dry up and drop of from staring at a computer screen all day.

III. Gossip Column

I promised you this semester I would speak to the other side of law school, those dark undercurrents of envy, Shadenfreud, and competition that are always lurking beneath the surface of our paced attempts at professionalism. Two women who I study with have told me that they enjoy being the best dressed woman in their class / office / ect. and this sentiment is certainly not limited to those who have expressed it to me, but I will just say that around here, style, like your ability to apply law to facts in a timed exam, is graded on a curve, and not all of you can get A’s. There is defiantly a clear winner in my eyes, a supernovae, but for the rest, let me give you a list of fashion mistakes that keep caused you to fall somewhere on the backside of this curve:

1. You don’t need to wear a business suit to law school. Unless you have an interview or you are in the night section and actually work, there is no reason for you to show up on a daily basis in a suite. I understand that this is professional school and that you might see this as a job and even that you do not want to conform to the standard dress of your other students, but for getting a high grade on the fashion curve, you are going to have to do more than look like you are trying to be first in line at the job fair.

2. Don’t use a roller bag. Get a locker, get a backpack, get a car, get a mule, get a Sherpa, but whatever you have to do, don’t use a roller-bag.

3. Thick glasses are out. They don’t make you look any more intelligent and every other girl on Capitol Hill looks like they rolled out of Woody Alan’s bed this morning fulfilling his fantasy for young girls and accidentally put on his glasses.

4. The matching Juicy Sweat-suit. I shouldn’t have to say anything. Just, no, unlike your common sense, check it at the door.

5. This last note is more personal preference than objective style sense, but what is style if not personal and any teacher who has graded exams knows that perfect objective grading doesn’t exist. White tennis shoes might be alright for a day at the country club, but they are hardly fashionable.

So, for those of you who have violated any of these maxims, these common laws of style, you might make law review but not law-new-view.

IV. Judicial Quotes
It’s what we call in law school the slippery slope and if you start answering the easy questions you are going to be sliding down the ski run into the hard questions, and that’s what I’m not so happy to do.
-Sam Alito
Well, this man is applying for a job on the most powerful court in America, and he is afraid to do what we do every day of the week in hopes of someday getting any job. Was Alito the student in class that could answer all of the questions about the facts of a case, but was afraid to look commit to a hard answer for fear of looking like he might get it wrong. I realize it is probably not a fair comparison to compare a senate judiciary hearing and the Socratic method of a first year law class, but it was his metaphor.

Welcome back We are

Welcome back. We are already 4 weeks into the semester and I have yet to make a post to law-new-view, but I hope that the rest of the semester will be more productive than these first four weeks have been. I was in a post-holiday hangover for the week, and the second and third weeks were filled with enough personal drama to fill a T.V. sitcom about one’s first year of law school and not a semi-serious attempt at an intellectual evaluation of an educational process that this blog is supposed to be. The fourth week wasn’t much better either due to seasonal depression or the mounting work that is ahead of me, but I feel a bit of a resurgence coming on and as my personal life settles down and my mind wakes up, this should be a good semester.

I hope to make regular weekly postings and to maintain a bit of a structure for my ramblings. I will try and break up the posts into four segments and we will see how this works. First I will talk about the interesting case of the week, which will be a discussion of some case or topic that stood out in my mind as presenting a fascinating topic of law. Secondly, I will talk about the law at large. We could call it, At Lawge, and I will discuss either wider legal themes that I am interested in or hear about, like supreme court nominations, or where I imagine my law school career going: which at the moment feels like no where. Thirdly, will be a segment called the gossip column, where I will talk about those non-academic aspects of the law school experience either from the events of the hallways or of my life away from school. Finally, I will end with a quote from a famous judge, as was a habit that I began last semester.