Friday, January 28, 2005

Boring Evidence Shall Be Excluded

I have just come up with a new Federal Rule of Evidence:
Evidence that is deemed boring shall be excluded.
Here is an excerpt from yesterdays daily transcript of a trial I'm attending.

11 MR. LINCOLN-SAN-JUAN: Your Honor,

12 I'm going to object. I don't know if a

13 person had the same number of employees

14 throughout the whole course of the two

15 years.

16 This is getting so, I think,

17 boring. I'll say that much, but

18 really, it's I don't know if the person

19 had the same number of employees

20 throughout the two years or whether it

21 was for -- or whether he increased them

22 or decreased them -- whether the

23 witness knows or what. I would suggest

24 we start –

[. . . ]

9 (At sidebar:)

10 MR. VAZQUEZ [the AUSA]: We know that time is

11 of the essence, and that we didn't

12 expect this to happen today, but now

13 we're going to request the protection

14 and the supervisory power of the Court.

15 Before we went to the break,

16 Mr. Lincoln stood up and made as part

17 of an objection, mentioned that this

18 matter was boring, to the point that

19 the jury laughed.

20 That, Your Honor, affects the

21 decorum and the seriousness of the

22 proceeding. We felt insulted, and we

23 still feel insulted.

24 The duty of counsel is to maintain

25 the decorum as officers of the Court,

1 and I would respectfully request from

2 this Court its protection and give a

3 curative instruction to the jury as to

4 that specific incident and to totally

5 disregard it.

6 This is a very serious matter.

7 Now I am requesting the protection and

8 the supervisory power of the Court to

9 this effect.

10 THE COURT: Mr. Lincoln, it's your

11 turn now.


13 THE COURT: Yes.


15 have nothing to say, other than I do

16 not agree with counsel's tone as to

17 saying this.

18 Well, he's raising his voice as he

19 said it, so I have to put that on the

20 record, as well.

21 Yes, it was getting rather boring.

22 I don't see how it is humanly possible,

23 Your Honor -- and I bring this to the

24 Court's attention right now, because

25 under Rule 602 of the Federal rules of

1 evidence, a witness should not be

2 allowed to testify based upon matters

3 that -- should testify based upon

4 matters that he or she knows about.

5 Guessing and speculating should

6 not be permitted, and I don't see,

7 quite frankly, why we tell jurors all

8 the time, the Court instructs them,

9 counsel argues this all the time; that

10 jurors are not to lose their common

11 sense when judging in cases, and I do

12 not think that judges lose their common

13 sense when they're dealing with cases

14 either.

15 I think quite the contrary, and I

16 don't see how one can fairly say that

17 it is humanly possible for this witness

18 to be testifying to all that the

19 Government is bringing out of him of

20 all these different people year by

21 year, drug points by drug points.

22 THE COURT: But it hasn't varied

23 that much.

24 MR. LINCOLN-SAN-JUAN: That he can

25 be able to state -- I don't know what I

1 earned in '95 -- that's my earnings --

2 I don't know what I earned in '96 -- I

3 don't know what I earned in '97. And

4 this witness can tell not only what he

5 did, but what 20 other people did and

6 what guns each one had year per year,

7 what drug amounts they sold on a weekly

8 basis, each one of them.

9 Your Honor, it gets to the point

10 where it's absurd.

11 Then the other thing is, Your

12 Honor, Your Honor has requested that we

13 expedite these proceedings as much as

14 possible. As defense counsel, we have

15 to some degree one problem; that we

16 have clients that may not be amenable

17 to certain stipulations that otherwise

18 counsel would enter into.

19 So that precludes us from being

20 able to stipulate to some things. But

21 other than that, I don't know what the

22 Government is really driving at with

23 all this tedious, repetitive evidence.

24 It is, in fact, getting quite boring,

25 and quite repetitive and, really, of

1 people that are not even here, that are

2 not even -- are so almost collateral

3 and unnecessary, really, for this whole

4 conspiracy thing that they're bringing

5 that it gets to be absurd, and

6 Mr. Vazquez wants to play like he's

7 seeking the protection of the Court,

8 and he's really offended and all this.

9 Well, I am offended by having to sit by

10 listening to Mr. Vazquez trying to drag

11 this from a witness that I do not

12 humanly think is possible for a person

13 to remember.

14 MR. VAZQUEZ: May we reply to

15 that, Your Honor?

16 THE COURT: Go ahead. Briefly,

17 because I don't want to make this an

18 everyday situation that now --

19 MR. VAZQUEZ: Mr. Lincoln had all

20 the time in the world to talk.

21 We have a duty to prove a case

22 beyond a reasonable doubt with all the

23 evidence in light of the sentencing law

24 and all the situations; I have to duty

25 to do that before the jury.

1 Number two, my claim at this time

2 does not in any way preclude

3 Mr. Lincoln or any of the other

4 attorneys to bring arguments of law

5 before this Court. What we're

6 objecting to is the method that's being

7 done. He can simply object and give a

8 ground, and if it's to be discussed, it

9 can be discussed at the sidebar out of

10 hearing of the jury.

11 What's been happening this

12 afternoon is a lot of objections with a

13 lot of improper objections and

14 arguments.

15 THE COURT: What are lots? You

16 mentioned one.

17 MR. VAZQUEZ: There was another

18 one.

19 THE COURT: Bring it out.

20 MR. VAZQUEZ: The record, in fact,

21 read --

22 There was improper comment by you

23 of conspiracy. The record read it was

24 drug operation, not conspiracy, and I'm

25 at blame that I did not go on the

1 record at that time, and I still invite

2 the Court to check that record, but

3 that was passed.

4 At this time, Your Honor, the

5 allegations that have to do as to

6 evidentiary matters are not at issue.

7 The issue are the way they're

8 happening, and now it crossed the line

9 when he simply told the jury that the

10 Government's actions were boring, to

11 the point that the jury laughed. That

12 detracts, and we respectfully request

13 an instruction regarding that matter to

14 the jury.

15 THE COURT: What is the

16 instruction you propose?

17 MR. VAZQUEZ: Regarding a comment

18 of counsel as to the fact that the

19 proceedings followed by the prosecution

20 are boring, that's totally stricken

21 from your mind, and this is a serious

22 matter, and that type of comment is out

23 of order, something to that effect.

24 I go to the wisdom of the Court in

25 setting the words, but that's the idea.

1 Right now, before that jury, it was a

2 big joke, and that should have never

3 happened, because objections are

4 objection grounds, and then sidebar

5 discussion out of the hearing of the

6 jury.

7 MR. LINCOLN-SAN-JUAN: I said this

8 was getting repetitive, and it was

9 almost getting boring or getting

10 boring.

11 MR. VAZQUEZ: He said it's boring.


13 is. It's repetitive.

14 THE COURT: Did you finish?


16 interrupted him, quite frankly, but I

17 would also, if Your Honor is inclined

18 to give an instruction, then I would

19 also request from the Court -- I don't

20 think that the Court should be giving

21 an instruction of that. The Court will

22 decide.

23 MR. VAZQUEZ: This is a serious

24 matter.

[. . .]

15 MR. VAZQUEZ: May we just request

16 a very slight, since the jury laughed,

17 just a simple instruction to them that

18 the remark involving about boring,

19 please strike that remark, and that's

20 without even mentioning the word

21 "counsel". Because they laughed, and

22 we submit that will take care of it,

23 and we submit that the decorum was

24 misused, and the position of the

25 Government was severely prejudiced.

1 THE COURT: I'll tell you what

2 I'll do --

3 MR. VAZQUEZ: Disregard any remark

4 involving boring case, and that's it.

5 THE COURT: Why don't you get up

6 and you state to the Court when the

7 jury is here that the remark that you

8 had stated that the case was getting

9 boring shall be stricken, and I'll say

10 fine, I'll agree with you, and then it

11 does not sound like I am directing it

12 as to you.

13 MR. LINCOLN-SAN-JUAN: Your Honor,

14 I agree with the matter that it was

15 improper for me to say that, but I do

16 and I still submit to the Court that

17 other than for what Your Honor has

18 pointed out, that that could have been

19 taken care of in about two minutes,

20 that testimony. It has been extremely

21 repetitive and drawn out.

22 MR. VAZQUEZ: We object to that,

23 and the ruling is clear.

24 THE COURT: Fine, but the ruling

25 would be that the Court would not think

1 that it's repetitive yet, because the

2 Court insists that --


4 speculative of this witness.

5 THE COURT: That can come out in

6 cross.

7 MR. LINCOLN-SAN-JUAN: That's part

8 of the Federal Rules of Evidence too,

9 Your Honor.

10 THE COURT: But it can come out in

11 cross.

12 MR. LINCOLN-SAN-JUAN: That's why

13 I'm saying part of our frustration is

14 we're making arguments under the

15 Federal Rules of Evidence that are

16 addressed to the Court, and the Court

17 is saying, you handle it, and that's

18 part of the frustration we're

19 experiencing with, quite frankly.

20 THE COURT: I'll tell you what

21 I'll do: Either you get up and state

22 that you wish that that comment be

23 stricken, or I will tell the jury the

24 comment "boring" is to be stricken from

25 the record.


2 you prefer, Your Honor.

3 THE COURT: I will state it then

4 that the comment as to "boring" is

5 stricken from the record.

6 MR. VAZQUEZ: Thank you, Your

7 Honor. That will suffice for us.

8 - - -

9 (In open court, jury present:)

10 THE COURT: Ladies and gentlemen,

11 the comment about that the case was

12 boring is ordered stricken from the

13 record.

I'm certain that from then on the jury no longer thought the prosecutor's presentation of evidence was boring. That was yesterday. Today I was hoping to catch a couple of jurors falling asleep and then move to request that the Court instruct the jury that while some of the evidence has been boring, they should make an effort to pay attention.

Monday, January 17, 2005

The Fox Guarding the Chicken Coop

I apologize that I have been away from the blog, but every once in a while we do have such things called trials to attend, and I had just started one on January 12th --briefly interrupted by the Supreme Court's decision in US v. Booker & Fanfan on the 13th-- and, given the amount of coverage Booker was receiving elsewhere, I thought it best to not attempt to be the Judge Paul G. Cassell* of the blogs.

[*Judge Cassell gave us Croxford immediately after Blakely and has now given us US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) the day after Booker & Fanfan.]

What the Court gave in Booker with one hand (bringing the guidelines within the reach of Apprendi and the Sixth Amendment's jury trial guarantee), it took away with the other (holding that the guidelines would no longer be mandatory and, thus, outside the reach Apprendi and the Sixth Amendment's jury trial guarantee). As most of you know, the Court's opinion was really 2 opinions, the first --the merits opinion-- by Justice Stevens, applying Apprendi and Blakely and the Sixth Amendment jury trial guarantee to the sentencing guidelines; the second --the remedial opinion-- by Justice Breyer, deciding the remedy that should be provided for that fatal illness the guidelines had caught was to make the guidelines advisory, rather than mandatory, thereby taking them out of the reach of Apprendi, Blakely and the Sixth Amendment's jury trial guarantee.

The remedial opinion in Booker was hijacked (a finding I base on hearsay, using a preponderance of the evidence standard) by 5 Justices, 4 of who do not even believe in Apprendi, Blakely or Booker's merits holding! For that majority to write the remedial portion was tantamount to the fox guarding the chicken coop. What they do for a "remedy" is the greatest of ironies, as Justice Scalia indicates in his dissent. The following passage says it all:

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of Breyer, J.).That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” Justice Breyer's opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity—that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 10–11, 22. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.

Scalia, J. (dissenting in part) (footnote omitted).

A Switch in Time?

There appears to be "some evidence" from which one can reasonably infer that Justice Stevens' dissent from the remedial majority was actually the majority opinion at one point. See Sentencing Law & Policy in this post wherein Justice Stevens' dissent from the remedial majority is quoted at n.8 (in part) as follows:

n. 8 ... The Court did not, as the dissent would have us do, strike down particular parts of the statute ...

Stevens, J. (dissenting in part). If nothing else, some law clerk didn't do his final proof reading after someone had switched sides. I will leave to others the speculation as to who the switching Justice was.

What now?

The only apparent winners -at least for now- are the federal district judges who have been granted more discretion. Whether they will exercise it or not, and how, still remains to be seen. If one goes by Judge Cassell's views as expressed in US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) ("Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."), then the result in Booker is even more depressing than I'm willing to accept. After all, even with mandatory guidelines Judge Cassell could have departed for some clearly identified, persuasive and allowed reason. Apparently Judge Cassell bought into Justice Breyer's "carefully crafted statement" which Justice Scalia aptly describes in his dissent in part:

The closest the remedial majority dares come to an assertion that the Guidelines must be followed is the carefully crafted statement that “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Ante, at 21–22. The remedial majority also notes that the Guidelines represent what the Sentencing Commission “finds to be better sentencing practices.” Ante, at 20. True enough, but the Commission’s view of what is “better” is no longer authoritative, and district judges are free to disagree—as are appellate judges.

Booker (Scalia, J., dissenting in part) at n. 4.

My wish list for sentencing reform?

  • eliminating mandatory minimums
  • creating guidelines sentencing ranges that are not so draconian; and
  • making the guidelines mandatory again, jury friendly (i.e., simplified), and subject to the Sixth Amendment's jury trial guarantee, and going back to Koon standard for departures.

I have a host of questions (and even answers) regarding matters such as 5K1.1, 5C1.2, their statutory counterparts, acceptance of responsibility, etc., but that will all have to wait for another moment.

Monday, January 03, 2005

Up in Smoke!

If I sound grouchy to some, I probably am, although I'm also very happy. It has now been 6 days since I quit smoking, not an easy thing to do when you smoked 3 packs per day. Now you might be wondering what I've been using to help me stop, and the answer may surprise you: the common cold. Also staying home during these days has helped keep me away from temptation. Only yesterday did I dare to venture outdoors for the first time, . . . and I did not have any urge to smoke.

There is no better time to quit smoking than when you have a bad cold. The memories of your shortness of breath are still fresh, and this helps you fight the urge to smoke. Also, I keep thinking of the money I'm saving by not smoking, and how I can better spend it, which is just another incentive to quit.

Yes, every so often the thought of lighting up comes to mind, but so far everything is under control. As the days go by, it just becomes more and more difficult to imagine a worse habit than smoking, or to imagine ever going back to it. So, if I sound a bit cranky to you, at least you know why.

Oh, and did I mention that I'm doing this at the same time I am on a diet, . . . and taking a medication whose side effects make you hungry?