Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals recently spoke out regarding Supreme Court Chief Justices and the criteria used to select those nominated to the Nation’s highest court of appeals. During a promotional speaking engagement for a new biography about Posner, the judge indicated that his new book, called Strengths and Weaknesses of the Legal System is “almost entirely about the federal judiciary…. So I have about 10 pages on the strengths and about 320 pages on the weaknesses. I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”
Posner went on to state that his biggest complaint about the current Supreme Court Justices is that most, have little or no trial experience. He firmly believes that for a Chief Justice to be effective and qualified to hear cases, that the judges should have some trial experience and if they do not, should actively seek out opportunities to gain this experience at the district court level. In fact, Judge Posner has led by example by doing just that, in the district level courts near his post in Chicago.
Posner acknowledges that two Chief Justices, Ruth Bader Ginsburg and Steven G. Breyer, are in his opinion, more qualified to sit in their current positions, since they do have some trial experience. Posner argues that in the US, there are thousands, or tens of thousands of attorneys and judges that have paper credentials that qualify them to be on the Supreme Court. Typically, other factors, often go into Chief Justice appointments, such as race, gender, political affiliation etc. Posner’s point is that sometimes, those appointed based on these factors alone, are not the most qualified to sit on the highest court in the US. Rather, there are likely many other judges in the US that are better equipped to preside over high level appellate cases, due to their extensive trial background.
Posner’s book release will likely bring up the discussion again, especially since the prospect of filling Justice Scalia’s open seat on the Court will be at the top of our new President’s agenda. Read the entire article from the ABA Journal here.
In giving potential jurors instructions on possible prejudices, LA County Judge Eleanor J. Hunter recounted her negative experience with plumbers in the past, as an example of how prejudice can affect a juror’s preconceived ideas about witnesses. During her speech to the potential jurors in Vincent Tatum’s 2014 murder case, Hunter said she has “had horrible experiences with plumbers … during remodels or whatever, just horrible experiences.”
“If I hear somebody is coming in, and I hear he’s a plumber, I’m thinking, ‘God, he’s not going to be telling the truth”. After hearing Hunter’s remarks on the first day of jury selection, the defense asked for a mistrial, which the judge denied.
Unfortunately, for both Tatum and, later, Hunter, that story told to jurors in good faith, would prove to have negative ramifications for both parties.
In Tatum’s case, during his murder trial in 2014, a key witness that claimed Tatum was at work during the time of the murder, happened to be a plumber. A fact that Judge Hunter could not have predicted would come up during the trial. The prosecution in Tatum’s case alleged that Tatum’s friend and sometimes employer, was lying for his friend to give him an alibi for the murder. Tatum was convicted of the crime and sentenced to 114 years in jail.
In early October, 2016, a split, three-person panel on the 2nd Court of Appeals threw out Tatum’s conviction ruling that Judge Hunter’s negative comments about plumbers during the jury selection, negatively impacted the 6 jurors on the case that heard both Hunter’s remarks, and convicted Tatum of murder. In addition, the fact that she denied granting a mistrial, during jury selection, was also seen as a reason to overturn the conviction. According the panel, Hunter’s comments “interfered with [Tatum’s] constitutional right to a jury trial”.
Tatum remains in custody in the California State Prison, waiting to see if California’s Attorney General asks the Supreme Court to review the decision. If the Supreme Court declines, the LA County District Attorney has the option to retry Tatum.
Read more about this case in the LA Times.
Mississippi bite mark “expert” continues to testify, despite several challenges and episodes of odd behavior
Back in the 1990’s, Mississippi’s Michael West was considered by some, to be the foremost expert on bite mark identification. That is the ability to “connect” a suspect’s dental records to a bite mark, either on an object (like a piece of cheese) or on a person’s skin. Despite challenges to his technique and expertise throughout the 90’s, he continued to be retained by attorneys in Mississippi and Louisiana.
After testifying in several high profile cases, in early 2012, West was questioned about bite mark analysis on the witness stand and testified that he no longer thought bite mark comparisons to be a scientifically valid discipline, stating, “I no longer believe in bite mark analysis. I don’t think it should be used in court. I think you should use DNA, throw bite marks out.”
In April 2016, West was deposed in the case of Eddie Lee Howard, who was in prison for 20 years after being convicted in the murder case of an 84-year-old Mississippi woman back in 1992. The case was reopened by the Innocence Project who maintain the Howard is innocent. At the time, and without any scientifically accepted evidence (fingerprints, witnesses, ballistics) found at the crime scene, the prosecution turned to Dr. Michael West and his signature bite mark analysis. Though the coroner never noted any bite marks on the woman’s body, it was exhumed 3 days after burial so that Mr. West could examine her remains for evidence of bite marks. In the end, Mr. West testified at trial that Howard was the one who had bitten the victim “to a reasonable medical certainty.”
Almost as alarming as the shoddy forensic science performed in this and other cases, is the fact that West seems to have no sense of accountability or remorse for putting innocent people in jail. In the recent deposition, West insults the prosecutor on the case, and spews profanities. And by most accounts, his train of thought and testimony regularly goes “off the rails” during the deposition, bringing up personal stories and other cases while peppering his testimony with vulgarities.
Several reporters are keeping tabs on this case, as well as others, as Mr. West continues to stay in the news, one way or another. In addition, Courtroom Insight has 12 known challenges to Mr. West’s testimony available for reveiw with a paid subscription. You can read more about this case and others in the Washington Post and the New York Times. Read more on the West case reopened by the Innocence Project here.
Chicago, IL and Saipan, Northern Mariana Islands are 7,230 miles from each other, but expert witness William Pelarenos testified in court without leaving his home state. Saipan is the most populated island in the group of Mariana Islands and has been a U.S.Commonwealth since 1978.
Early last spring, Mr. Pelarenos, was contacted by Saipan’s Office of the Public Defender and asked to testify in a DUI case. The only catch was that he would do so via the internet telecommuting program called Skype. Skype allows the users to view conference participants via the camera on their computer or tablet and audio is transmitted via the microphone.
Pelarenos is a former police officer, DUI instructor and has testified as an expert throughout Illinois. He was qualified by the Saipan court as an expert in the field of standardized field test sobriety tests and the NHTSA DUI Detection Manual.
Pelarenos testified in the Saipan court for more than 2 hours regarding proper testing procedures and answered questions from both attorneys with respect to NHTSA standards.
While expert witness testimony is not commonly requested via Skype or other similar telecommuting services, it might become more commonplace now that most municipalities have internet and Wi-Fi readily available to their attorneys and judges. Furthermore, accessing an expert in a particular field becomes increasingly easy, if one does not have to be concerned with flying the expert into town for the proceedings. Theoretically, attorneys could retain the top experts in a particular field for any court proceedings, if travel and locale are not a factor.
Pillsbury, a full service global law firm with 700 attorneys, has chosen Courtroom Insight to host its repository of information regarding experts, arbitrators and judges.
Pillsbury’s co-heads of litigation, Kirke M. Hasson and Kenneth W. Taber, recognized a need to better manage institutional knowledge of their numerous attorney relationships with experts, arbitrators and judges. “We were tired of reading firm-wide emails asking for information about prior experiences working with different individuals,” explained Mr. Taber. “Courtroom Insight provides a superior alternative.” Pillsbury’s Director of Knowledge Management, Lisa Gianakos notes “Courtroom Insight has been on my radar for some time and I appreciate their willingness to customize their solution to fit our specific needs.”
Courtroom Insight Chief Executive Officer Mark Torchiana said, “Our company is eager to work alongside Pillsbury’s knowledge management group to install our solution for the Pillsbury litigation team. They have already provided useful product feedback and we will continue to incorporate their input going forward to help entrench Courtroom Insight as the leading litigation knowledge management solution.”
Courtroom Insight, the leading litigation knowledge management solution for sharing critical information about experts, arbitrators, judges and attorneys, is proud to announce Sheppard Mullin as its newest law firm client.
Sheppard Mullin’s Director of Research & Library Services, Martin Korn, chose Courtroom Insight to help the team provide the right information at the right time. Mr. Korn states “I’m excited to add Courtroom Insight to our arsenal of resources and expect it to enhance the background reports we regularly deliver to our attorneys. This is yet another way in which we can add value to the services we provide our clients.”
Sheppard Mullin’s Chief Knowledge Officer, Dora Tynes, explains that “by signing up our library staff, I am able to provide a central repository of key information about experts and other litigation professionals. I particularly like the way expanded research and expert witness search services are made available directly from the product interface.”
You can read more about the partnership between Sheppard Mullin and Courtroom Insight in the full press release.
When Santa Clara County Judge Aaron Persky handed down, what many consider to be an extremely light, and possibly irresponsible sentence of just 6 months to Brock Turner, a former Stanford University swimmer, convicted of sexually assaulting a woman on campus, he could not have predicted the firestorm that has followed. While the majority of the criticism was in favor of a harsher sentence for the defendant, the public outrage has been followed by a move to recall the judge from the bench.
However, 18 retired Santa Clara County judges have now penned an open letter, denouncing the recall of Persky. It’s not that they disagree with the public outcry, but rather, they are balking at the precedent that could potentially be set if Persky is recalled. In the letter, the group of judges point out that “the essence of judicial independence is that judges must be able to make decisions without fear of political repercussions.”
Persky has been on the bench since 2003, and it will be interesting to see how the push for his recall plays out once the media attention dies down.
Read more about the open letter here: http://www.law.com/sites/almstaff/2016/07/06/removing-judge-aaron-persky-would-set-a-dangerous-precedent/?slreturn=20160612195241