On the Record

Everyone agrees the Baltimore City Circuit Court buildings are “absolutely terrible” and that a new courthouse is in order, the city’s administrative judge declared at a meeting of city and state criminal justice officials last fall.

To this end, the city and its circuit court ponied up between $600,000 and $700,000 for a Maryland Stadium Authority-picked consultant to study the upgrade possibilities.

At that same September 2009 Baltimore City Criminal Justice Coordinating Council meeting, the representative from Los Angeles-based consultancy AECOM Inc. promised a final report with recommendations by this past spring.

In January, MSA spokeswoman Jan Hardesty offered assurances of that schedule.

“It’s on course, it’s on schedule,” Hardesty said. “It should be out in early spring.”

When nothing came out by June, I spoke with Judge Marcella Holland, the city’s administrative judge, who told me the study’s publication date was more likely to be late summer. When it still wasn’t out by late September, I asked again after its progress. The latest update came Friday from MSA Project Executive Gary A. McGuigan, who acknowledged the delay but said such an important matter should not be rushed.

“It’s still going to be a little bit,” he said. “My best guess right now is it’s probably going to be the end of the year.

“It’s very complicated. It’s a very large report, and we want to make sure we get this thing right,” McGuigan explained. “It’s taken longer than I had hoped, but like I said, we want to get this thing right.”

So, given that it’s already been several years that litigants, lawyers, judges, courthouse employees and members of the public have had to deal with a decaying — if still stately in some ways — pair of courthouses, and it won’t be several more years (or, God forbid, decades) until the problem is properly solved, what’s another year or so (and a half million dollars) more spent putting a plan together?

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Happy Columbus Day. If you’re at work, like those of us at The Daily Record, here are some law links to check out. If you’re off today, get out there and enjoy the beautiful weather.

• Is the cost of supplying lawyers to defendants in bail hearings worth it? Page Croyder says it would require lawyers to be available 24-7 and cost taxpayers a boatload.
• Good news in the legal industry: Jobs are on the rise. The national economy may still be in the dumps, but law firms are adding employees.
• The former voice of Dora the Explorer is suing MTV and Viacom for forcing her to sign a contract without allowing a lawyer review it. The girl’s family claims she’s been underpaid by at least $2 million. Vamanos! We have to sue!
• D’oh! EEOC sues employer for disability discrimination based on obesity.
• One South Carolina family law firm says no kvetching — we’ll get to you when we can.
• Attorneys and judges are grappling with juror comments on Facebook. This might be deja vu for readers who followed the Dixon trial.
• Lawyers will fight death penalty with economic argument: It’s just too expensive (HT: How Appealing).

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“A Maryland newspaper.”

Really, The Wall Street Journal? You write about news The Daily Record broke, and you credit “a Maryland newspaper”?

What, your story ran over by a line so you had to cut out our name? Or maybe all your fact-checkers had the day off?

Or were you trying to be cute, since today’s article — “Anonymous Ladies and Gentlemen of the jury” — is, after all, about withholding names?

In the article, reporters Ashby Jones and Nathan Koppel use the trial of former Illinois governor Rod Blagojevich as a news hook to discuss the practice of withholding the names and addresses of jurors.

Read the rest of this entry »

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Earlier this week, I presented in this space details about a jury trial in a case concerning a mailman and a dog. The letter carrier, Mary Jo Davis, had sued Charles and Karen Cheelsman after their dog, Lucky, allegedly attacked Davis as she attempted to deliver the mail in 2007. Davis subsequently needed knee surgery and was seeking $550,000 in damages.

So what happened in Baltimore County Circuit Court earlier this month?

(I’ll give you a minute in case you want to “refresh your recollection.”)

A jury deliberated for less than an hour before finding in favor of the defendants. Andre M. Forte, the Cheelsmans’ lawyer, said the jury looked at Lucky’s history of human interaction in determining whether the couple was negligent.

“The past history of my clients’ dog showed he was a lovable dog who never showed a propensity of vicious behavior,” Forte said, describing Lucky as a “big, huge goofball.”

Forte, who has handled other dog bite cases and spoken on the subject, said neighbors testified that the worst Lucky ever did was growl or snarl at them.

Mary Ann Ryan, Davis’ lawyer, said last week that no decision on an appeal had been made. (No notice of appeal was listed in the court record at lunchtime Friday.)

Ryan agreed with Forte that the jury was reluctant to find the Cheelsmans negligent based on Lucky’s history.

“Every dog gets one bite,” she said.

Davis is recovering from surgery unrelated to the alleged attack, Ryan added, but she will soon return to her mail route. That includes the Cheelsman house.

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A recent declaration by our sister publication, Virginia Lawyers Weekly, that the “Shaggy defense” is a term of legal art went national this week.

That’s thanks to Slate, the online magazine that picked up a recent VLW story on a U.S. District Court judge’s ruling on a summary judgment motion. In Preston v. Morton, David Morton said he was working on traffic lights in a bucket truck when William Preston, driving a tractor trailer, hit the truck.

Preston’s defense? “It wasn’t me.”

You can read more about U.S. District Judge Jackson Kiser’s opinion in the civil case here. The defense — coined during the 2008 child pornography trial of singer R. Kelly and attributed to the song “It Wasn’t Me” by reggae star Shaggy — got me thinking of other uses of popular culture in cases. As someone who has not gone through law school, this kind of terminology helps me to understand the basic facts.

For example, South Park taught me one way to win a case is with the Chewbacca defense. O.J. Simpson’s intrepid lawyer, Johnnie Cochrane, was cartoon-ized on “South Park” in the season 2 episode “Chef Aid.” He wins his case despite an absurd argument:

“Why would a Wookiee, an eight-foot-tall Wookiee, want to live on Endor? If Chewbacca lives on Endor you must acquit!” he shouted to the jury.

Here are two other cases that show popular culture making its way into law:

• The Matrix defense: Three defendants claimed insanity from being convinced they committed the crimes in a Matrix-like virtual reality. Two were found not guilty, but Joshua Cooke, accused of murdering his parents in February 2003, ended up pleading guilty later that year.

• The Twinkie defense: Dan White, a former San Francisco city supervisor, claimed that junk food diminished his mental capacity, resulting in the murder of city mayor George Moscone and supervisor Harvey Milk in 1978. White’s lawyer successfully argued the case and the sentence was reduced to manslaughter.

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Happy Monday! Here are a few law links to start your week:

• The Baltimore no-pork-no-foster-child decision seems “unjustifiable” to Eugene Volokh at the Volokh Conspiracy.
• Perhaps the judge in the Constance McMillen gay prom case “should find the entire community of Fulton, Mississippi, (pop. 4000) in contempt if the evidence warrants and if there’s a way to do it,” writes Marc Poirier at Concurring Opinions.
• “Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” [UC Berkeley law dean Christopher] Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.” HT: Constitutional Law Prof Blog.
• Here’s how to spot a potential “holdout juror” before you put him or her on your jury.
• Cool! Who knew? “In 1925, the Texas Governor appointed three women to fill all the positions on the Texas Supreme Court to hear a single case:  an appeal involving Woodmen of the World, a fraternal group whose members included virtually every male lawyer in the state.”

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Why can’t you be more like your brother?

It’s bad enough when parents play that sibling-rivalry card, but Justice Department attorney Jeffrey Wall actually tried it during oral argument today in the Supreme Court.

The case was Barber v. Thomas, which deals with calculating good-behavior credits for federal inmates, Kimberly Atkins reports for our sister blog, DC Dicta:

“It’s a very complicated system to understand,” [Justice John Paul] Stevens said to Wall at one point during the argument.

“Well, with all due respect Justice Stevens, Justice Breyer got it in the first five minutes,” Wall replied, sending howls of laughter throughout the courtroom.

DC Dicta also has capsule summaries of the three cases decided today by the court, Berghuis v. Smith (jury selection); Jones v. Harris Associates LP (shareholder suits by mutual fund investors) and Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson (False Claims Act).

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Parade Magazine had an interesting notebook item recently about jury duty. (And no, unfortunately, Howard Huge didn’t jump into a jury box thinking it was some sort of play space.)

The story reports many jurisdictions are experiencing an increase in the number of people “who say they can’t afford to serve or who simply don’t show up, causing cases to be delayed or even dismissed.”

The problem has been exacerbated by the recession; a Minnesota plumber was found in contempt of court and jailed for a day in November after saying during voir dire that he couldn’t afford to miss more than a day of work. “I don’t get paid when I’m not working,” he said, according to court records. “I could see myself just going with the flow to get it over with to get back to work.”

The American Tort Reform Association has proposed states pay jurors more, noting Arizona offers jurors $300 per day for trials lasting longer than five days.  By comparison, jurors in Maryland are paid between $15 and $30 per day depending on the jurisdiction.

So, what say you – is a larger per diem the best way to ensure citizens answer the call of jury duty? What else could be done to make the experience more palatable for potential jurors?

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The chief judge of the Supreme Judicial Court of Massachusetts would just like everyone–lawyers, judges, everyone–to shut up about CSI.

Judge Margaret H. Marshall made her remarks during oral arguments in a case where a convicted murderer is asking for a new trial. The appellant says the judge in his case should not have said to the jury, “And I remind you that this is real life and not ‘CSI.’ I say that without being facetious. It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.’’

As the Boston Globe reports, Marshall took a dim view of the trial judge’s comments:

Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.

“I am just saying however we resolve the issue in this case, it’s not the first time that it has come up,’’ Marshall said. “We should just keep television out of criminal trials.’’

Marshall added: “Why don’t we just suggest [to judges and lawyers] to forget about ‘CSI.’ Just don’t bring it into a criminal trial. It’s not influencing anybody.’’

I found this especially interesting in light of my colleague Steve Lash’s story this past summer on a Court of Special Appeals opinion in a similar case. In that case, the court held that it wasn’t a problem for a Baltimore City judge to tell a jury that the trial was not like CSI and that they didn’t need scientific evidence to convict. From Steve’s article:

Attorneys for the two convicted murderers had argued that Baltimore City Circuit Judge Charles G. Bernstein’s contrast between real life and the fictional police drama gave jurors the improper impression that prosecutors need not present strong evidence to prove the defendants were guilty.

But the intermediate court said Bernstein’s statement about the popular CBS television series was within a judge’s broad discretion to ask questions to determine if prospective jurors could consider the evidence fairly and impartially.

***

During voir dire — a preliminary screening process for potential jurors — Bernstein told prospective jurors that “CSI” does not reflect reality.

“I’m going to assume that many of you, from having done a few of these, watch too much TV, including the so-called realistic crime shows like “CSI” and “Law and Order,’” Bernstein said, referring also to a popular courtroom drama on NBC television.

“I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, quote, scientific evidence, close quote, to convict guilty persons,” he added. “While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without, quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.”

Of course, the Massachusetts court hasn’t decided its own CSI case yet, but the approach signaled by Marshall is certainly different than the one taken by our Court of Special Appeals.

The CSA won’t be the last word on the matter in Maryland, though: the Court of Appeals’ Web site indicates that it granted cert last month.

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As Caryn Tamber reported today, we can no longer tweet from within the courtroom at the Dixon trial. That doesn’t mean the tweets have been silenced, though; they’ve just moved down the hall. You can still watch for updates on www.twitter.com  by “following” @mddailyrecord, or just search for #DixonTrial.

This morning, for example, we learned that “things [were] getting a little out of order” in the jury room last night, and the jurors continue to correspond with the judge seeking clarifications on points of law or, at least, a legal dictionary. (Don’t worry, the judge nixed THAT idea.) What do you think — does this bode well for the prosecution or the defense?

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