Facing Criminal Charges to Save Animals, Part IV: Planning Legal Strategy

Australian animal rights activists protesting during a criminal
trial of an activist for trespassing an animal culling operation.

Part I
Part II
Part III

Trials of animal rights activists can be seen as the site of convergence for two very different legal events: a criminal process against an individual charged with a crime, in which the individual faces the prospect of conviction and punishment (and the dilemmas involved in going to trial vs. pleading guilty), and a landmark case for animal rights. By contrast to impact litigation on issues of animal cruelty, though, the latter meaning is a bit more indirect: the accused are pointing the finger at their own accusers as lawbreakers (of anti-cruelty laws), perpetuators of illegalities (through the pursuit of ag-gag laws that might be struck down as unconstitutional), and moral transgressors (through engaging in cruelty.) This duality in the function of the trial has complicated implications as to the legal strategy employed by the activists.

To begin, there is the choice of legal representation. Cases pursued as impact litigation might attract the attention and services of organizations such as the Animal Legal Defense Fund (ALDF) or animal law clinics at law schools (such as the program here at Harvard.) As Bruce Wagman explains here, there's often a crossover between the litigation and the academic world in this field (Also see this great piece by Kathy Hessler). But most of what these organizations do is litigate with the animals as clients, as it were (now there's an interesting issue of animal personhood), against factory farms, laboratories, zoos, amusement parks, etc., and they might find it difficult to litigate with a human lawbreaker as a client. This problem might reflect a more general rift in the animal rights community between the "moderates" and the "radicals": Taimie Bryant writes about this rift, and the hesitation of the former to get behind the latter to provide legal representation, in this piece. There is also the more mundane issue of legal specialization: is it best to hire a criminal lawyer, or an animal rights advocate, for a criminal case involving animal rights advocacy? And how might the choice of representation inform the issues to highlight at the trial? This might also bring out interesting attorney-client conversations (and potentially disputes) as to the value of provocative strategies. 

The activists on trial seek support, financial and otherwise, and the emphasis on one aspect of the case over another might impact the sources of said support. Presenting oneself as an idealistic, otherwise normative person in risk of a considerable prison sentence might be a persuasive strategy in obtaining support on a personal basis from sympathetic people, but it also centers the person, rather than the suffering animals, in the debate. Presenting the criminal case as an effort to produce a landmark outcome is also fairly complicated. If the activists are seeking a jury trial, even in the happy event that they are acquitted, they will not obtain a reasoned, written decision supporting animal personhood and rights (or even animal welfare), and it might be anyone's guess whether the acquitting verdict is the product of legal analysis or jury nullification due to sympathy for the defendants. So, is the desired outcome a conviction, followed by a reversal on appeal with a written judicial opinion? And if so, how might that affect the ways in which support is sought? 

Activists packing the court at Rachel Ziegler and Jon Frohnmayer's
trial for open rescue activities, Sep. 9, 2019.
Photo credit: Paul Picklesimer on Facebook.

And what about behavior during the criminal trial? Is filling the courtroom with supporters wearing animal rights t-shirts a winning strategy, or might it prove a turnoff to a jury, especially in a rural farming area? Again, the answer might lie in the question what the activists are trying to achieve at trial.

And then there is the legal strategy itself. The endgame for some (albeit not all) animal liberationists is some recognition of animal personhood. There are fierce debates in the literature about how to conceptualize animal personhood, of course. The granddaddy of animal liberation theory, Peter Singer, seemed revolutionary when the book came out, but in light of later writings on the topic, his writing on food and medical experimentation does allow for some exceptions. Tom Regan's take on animal personhood relies on the animals' cognition. In their provocative comparison of the animal rights and pro-life movements, Sherry Colb and Michael Dorf rely on the concept of sentience. And  perhaps the most radical formulation of animal personhood is Gary Francione's abolitionist theory, which finds no exceptions to the prohibition against using animals for any purpose. And against these philosophical theorists, whose views are, perhaps best articulated as biocentric, we have the ecocentric views of environmental ethical thinkers, for whom the perpetuation of a species or an ecosystem might be more valuable than the protection of individual animals (see more about this debate in a post I wrote a while ago in my oft-neglected cooking blog, of all places.) The big question is - to what extent would prospective jurors need to "buy" any of these formulations of animal personhood, be they strong or weak, to find that the necessity defense applies and the activists were justified in saving the animals? Since the necessity defense requires a balance of harms, is it necessary that the harm be suffered by someone who has some sort of legal status, some sort of claim to rights? Or are rights and suffering fundamentally different? And to what extent will the activists' lawyers expect jurors to parse out these different theories? Again, Helena Silverstein's wonderful Unleashing Rights is relevant here: as she points out in other legal contexts, “lawyers in the movement rarely speak of animal rights in the courtroom.” But importantly, “rights talk itself is not out of bounds in the courtroom. When rights talk is used, however, it is not in the form of animal rights but in the form of human rights. . . lawyers and movement organizations advance human rights claims such as the First Amendment right to freedom of speech in order to promote animal rights.” Is this true in the criminal context as well?

Finally, given the jury's power to nullify (big debates here about what jurors should do when confronted with unjust laws or their application), there is the question of whether the activists' lawyers should invest in crafting their arguments within existing law (that is, arguing that the necessity defense, as currently framed, applies to open rescue) or changing the law (that is, arguing that the necessity defense should change because the current conceptualization of animal suffering/rights/personhood in law is insufficient or unjust.) What the lawyers choose to do is also a question of jurisdiction: there might be some states in which it is easier to work within the interpretation of the necessity defense, and those might, ironically, be places in which the defense is not codified, which might create a first-impression situation that gives the lawyers an interesting blank canvas to argue rights and personhood. 

But underlying these important considerations is an important feature of the criminal process: pursuing animal rights through the criminal process means that there is a human individual who might face conviction, and even incarceration, at the end of the day. My last blog post on the project discusses that.

Part V

Moratorium!!! What Does It Mean?

California's death chamber: closed. Source:
Office of the Governor.

Today's stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can't listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom's orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more "tinkering with the machinery of death," for at least a while.

Moratorium: What It Isn't

Newsom is not commuting anyone's death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom's predecessor misguidedly brings the death penalty back.

Why Didn't Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing "abuse of power." Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It's anyone's guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first--as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom's previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR's control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There's nothing they can do about the 737 reprieves--those are squarely within the Governor's ambit--but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor's order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that's the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff--quibbling over injections and historical miscarriages of justice--continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here's why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things--like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships--where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom's patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris' recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn't exactly shift all Southerners toward support of slavery abolition.) Let's see where the litigation over the order goes. Let's keep track of homicide rates in the state for a few years, and when we see--as research consistently shows--that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates "evolving standards of decency", so let's allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts' tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side--nineteen so far, and with California it'll be twenty--and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP--the Other Two Components of the Extreme Punishment Trifecta?

Newsom's decision does not affect the tens of thousands of people serving lengthy life sentences in California--with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state's expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday's Monsters, the "extreme punishment trifecta." If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are "the other death penalty" starker.

This only means that what happened today is good news. As readers of this blog know, I've always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled "Are you against the death penalty? Good. Then vote against the death penalty." The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I've written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he's right. Newsom's courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what's right.

Thank You for Your Courage, Governor Newsom

Governor Newsom's announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.

Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.

Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.

Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

CDCR Eliminates Inmate Copayments for Health Care

Today CDCR announced that, effective March 1, they will eliminate inmate copayments for healthcare, because an internal analysis reveals that copayments "have minimal fiscal benefit and are not aligned with patient care." 

Specifically, copayments may hinder patients from seeking care for health issues which, without early detection and intervention, may become exacerbated, resulting in decreased treatment efficacy and/or increased treatment cost. The Department’s health care delivery system, known as the Complete Care Model, is based on a preventative and comprehensive approach to patient care. Early detection and preventative health care aligns with most public and private health care organizations and can prove to be fiscally prudent.

The first thing that occurred to me upon reading this was how many people are probably unaware that incarcerated patients make copayments, just like patients on the outside. How did that come about? CDCR provides background:

In 1994, Section 5007.5(a) was added to the Penal Code (PC) to read: CDCR is authorized to charge a fee in the amount of five dollars ($5) for each inmate-initiated medical or dental visit of an inmate confined in the state prison, which will be charged to the prison account of the inmate. If the inmate has no money in his or her personal account, there shall be   no charge for the medical or dental visit. An inmate shall not be denied medical care because of a lack of funds in his or her prison account. The medical provider may waive the fee for any inmate-initiated treatment and shall waive the fee in any life-threatening or emergency situation, defined as those health services required for alleviation of severe pain or for immediate diagnosis and treatment of unforeseen medical conditions that if not immediately diagnosed and treated could lead to disability or death. Follow-up medical visits at the direction of the medical staff shall not be charged to the inmate.

This section aligns with other savings trends I reviewed in Cheap on Crime. The most egregious one is, of course, the pay-to-stay jail, but less egregious examples abound and participation in health care costs is one of them. 

What I find interesting is that the same savings rationale used for imposing the costs in the first place is now being used for getting rid of them--copayments are not vile and unjust; rather, the problem is that they don't pay off, because they deter people from seeking health care and thus make their condition worse and therefore more expensive.

The elephant in the room, of course, is the question of quality. Health care in California prisons is becoming more and more expensive and we are once again taking heat from the Ninth Circuit for the disappointing quality of mental health care in prison. But if it's not getting better, it is at least being offered for free.

Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there's evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party's court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster's crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a "b" next to their name. In one occasion, a prosecutor scribbled, "no black church" next to a juror's name. The author of those "b" letters and other comments could not be ascertained, but it had to be someone in the prosecutor's office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts' method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, "reek[ing] of afterthought", or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court's thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It's also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I'm left feeling very uneasy about the lessons prosecutors might learn from Foster. There's no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people's demographics--including their race and gender--correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect.  In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn't come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler's prescription to fellow African-American jurors to nullify in every case involving race, but at least he's honest about the fact that many folks see our system of incarceration as the battlefront in race war--and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won't see better race-neutral explanations; we just won't see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what's there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that's what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don't like this, and the court says that we lose a "distinctive flavor" or a special perspective. In that context, we're perfectly comfortable admitting that a person's experiences--including her race and gender--might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they're not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger's inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people's racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they'll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn't make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it's that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we're seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.--two cases involving the government's responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government's special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft's unique status as government-owned and privately operated, would the government's responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today's decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today's decision involved the government's duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

• Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
• Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
• Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
• And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were Juveniles

In 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for "guilty without capital punishment", carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence--he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he's been in prison ever since.

In 2009, decades after Montgomery's sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals  are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does--and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn't even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2's case is still alive--that is, it's undergoing an appellate process or the time to appeal hasn't run out yet--and because the case is not "final" yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final--which is to say, she exhausted her direct appeals, or the time to appeal has run out--will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a "substantive rule of Constitutional Law", which includes  “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense” or a "watershed rule of criminal procedure", which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today's ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state's collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.

The rule in Miller is, according to the majority, a "substantive rule of Constitutional Law", as it doesn't merely address process--it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their “diminished culpability and greater prospects for reform.” These differences mean that imposing automatic LWOP on children “poses too great a risk of disproportionate punishment.” While the decision has a procedural component--the need to hold a hearing before imposing LWOP on juveniles--it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality--in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.

Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It's hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed's case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a "price list" to each case. This means that the cases don't really receive individual attention, leaving the bulk of professional time and attention for the few "abnormal" cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn't try to tell one of those stories. I wouldn't go as far as to call it a "normal crime", but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we're used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there's some racism; there's some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we've been used to experience when reading Innocence Project stories.

To me, that's the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig's persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as "boring", and classifies the evidence into "bad for Adnan" and "good for Adnan". Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses "like an aggravated cop", you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven't yet listened to Undisclosed, and I'm hesitant to do so, because Koenig's agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed's defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig's interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial--regardless of whether they reached the factually correct answer.

I don't know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention--if not from investigative journalists then from more active jurors and with less partisan manipulation.

What Does the Settlement in the Solitary Confinement Lawsuit Mean?

Almost a month ago we reported of a historic settlement ending Ashker v. Brown, the class action suit regarding conditions in solitary confinement. What remains is to figure out exactly what the settlement means. And who better to illuminate the matter than UC Irvine's Keramet Reiter, an expert on solitary confinement and the editor of the recently published anthology Extreme Punishment?

In a recent blog post at Social Justice, Reiter argues that the settlement is a good first step, but there is plenty more to do:

The settlement attracted national attention and is still being celebrated by prisoners, their families, and legal advocates. Perhaps it will be a model for other states to reduce or eliminate prison conditions the United Nations has conclusively defined as torture. One settlement agreement, however, cannot sweep away decades of abusive prison policies. First, it is a settlement, not a legal opinion. At best, the settlement is a non-binding model of what other jurisdictions might attempt. Second, even though prison officials withdrew many of their claims about the dangerousness of SHU prisoners by agreeing to the provisions of the Ashker settlement, these beliefs have hardly been renounced. The genuine fear prison guards experience in coping with hunger strikes, managing mental illness, or dealing with prisoners like Hugo Pinell must be acknowledged and addressed, so that they are motivated to strategize to support, rather than resist, reform. Third, the data collection and monitoring associated with the settlement is scheduled to conclude in two years—and may never be made public in the first place. The practice of solitary confinement has historically been defined by discretion and invisibility, and is therefore hard to investigate, control, and reform. So the practice of solitary confinement could easily retreat back into the shadows in two years, absent longer-term requirements to institutionalize transparency. 

We plan to continue monitoring the post-Ashker developments.

Death Penalty Oral Argument: Procedural Debate Belies Anger at State's Dysfunction

This morning, the Ninth Circuit (Judges Graber, Rawlinson and Watford) heard oral argument in Jones v. Davis (formerly Jones v. Chappell). As you may recall, the original case was decided by District Court Judge Cormac Carney, who found the death penalty in California unconstitutional because of the severe delays in its application. The decision was appealed by the Attorney General, and nothing much happened since then in terms of addressing the delays on death row.

What did happen more litigation relying on Jones--notably, Andrews v. Davis before the Ninth Circuit and People v. Seumanu before the California Supreme Court.

At today's hearing, the Government representative argued that Jones was barred from benefitting from the delay in his case for two reasons:

1. It is a claim purporting to create a new rule, not brought up before, and as such is barred by Teague v. Lane.

A little bit of background: New substantive rules apply retroactively. For example, if a certain behavior ceases to be a criminal offense, whoever is still doing time for that offense will probably be let out immediately. But for new procedural rules, appellants can benefit from them only if these rules come into being while their case is still "alive", that is, still under direct review. In the diagram to the left, the rule change can benefit people in situations (1) and (2), but not (3). Note that, if the new rule came into being when (2) was still under direct appeal, but now (2) is arguing for it in a habeas proceeding, (2) still gets to benefit from the rule. (3), however, does not--his case became final before the rule change.

What about announcing a new rule on Habeas? According to Teague v. Lane (1989), the dilemma is as follows: the defendant who is asking for the new rule is, essentially, (3) from the previous diagram. That is, he would not be able to benefit from the new rule if it were announced today in someone else's case. Which also means that all the people who are similarly situated to this defendant--whose cases are final and on habeas--will not benefit from the new rule. Since the court doesn't want to just announce the rule and not enforce it, or to enforce it only in the particular case and not in those similarly situated (inequality), it reached the bizarre conclusion that it will simply not announce new rules on Habeas--unless these rules fundamentally change criminal justice, either in terms of legalizing previously prohibited behavior or being a "watershed rule of criminal procedure."

Jones' representative, Michael Laurence from the Habeas Corpus Resource Center, argued that the issue at stake here is substantive, not procedural. That is, the application of the death penalty is not merely a change in procedure, but rather a fundamental issue of applying the death penalty, as it was regarded in Furman v. Georgia (1972), Atkins v. VA (2001), and Schriro v. Summerlin (2003), the latter specifying that "rules that regulate the manner of punishment" are considered substantive, rather than procedural. Even if it is a procedural rule, it is essentially a reframing of the problem of arbitrariness, which led to the death penalty abolition in Furman, and therefore not a "new one" but merely the application of an old one.

In response, the government's representative argued that the arbitrariness claim, in this context, is a "new rule", and moreover, a procedural one. There hasn't been precedent directly on point claiming that arbitrariness can manifest itself in delay, and since this is a new question, it cannot result in a new rule on Habeas under Teague.

There was some back and forth about whether the court's decision in Andrews, which rejected a Jones-based claim, should be used to interpret whether the rule is new or old. 

2. Even if it's a claim relying on an old rule, Jones has not exhausted his argument in state court (in fact, never brought this up in state court) and is therefore barred from raising it in federal court under the Habeas provisions in section 2254. As 2254(d)(1) says,

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) 

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]

This was not the case here, claims the government; Jones didn't even go to state court, and cannot therefore challenge the sentence at the federal court.

Jones' representative argues that Jones benefits from an exception to the exhaustion clause, which appears in 2254(b)(2)(b)(ii):

(b)

(1)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A)

the applicant has exhausted the remedies available in the courts of the State; or

(B)

(i)

there is an absence of available State corrective process; or

(ii)

circumstances exist that render such process ineffective to protect the rights of the applicant.

This may seem very technical, but there's actually a lot of anger beneath the technicalities. As Jones argues through Laurence, the California Supreme Court would not have provided a cure to the delay, but rather delayed things even further. In 1997, the Ninth Circuit found that 140 people on death row were unrepresented, and released them from the timely submission obligations under AEDPA. Now, there are 358 unrepresented people. The wait for an attorney can be 16 (!!!) years, and after that, litigation can last 8-10 years (!!!)--all this time, obviously, spent by the applicant on death row. Amazingly, the only office limited in its number of lawyerly hires, the Habeas Corpus Resource Center, can only hire 34 (!!!) lawyers, which is a woefully inadequate number of people to handle 758 (!!!) cases. Before and after Jones, the California Supreme Court did nothing to remedy this situation, argued Laurence, and therefore there was no point in trying to "exhaust" the claim in state court. That would be, literally, exhausting.

In response, the government representative said that the prospective delays in state resolution of such issues is speculative.

There was also a bit of back and forth on the merits, with the government resisting the assertion that death penalty in California is "arbitrary" but rather that cases are carefully examined.

I'm hoping that, no matter the result in the Ninth Circuit, this case will go to the Supreme Court, where the dysfunctional application of capital punishment in the state might find a receptive ear in Justice Kennedy and in Justice Breyer, who explicitly said, in Glossip v. Gross, that he would welcome an opportunity to address the constitutionality of the death penalty on the merits.

BREAKING NEWS: 50,000 New Voters in 2016!

Just in time for the fiftieth anniversary of the Voting Rights Act, a legal team comprised of various rehabilitation and reentry organizations has triumphed in returning the right to vote to 50,000 men and women who are under mandatory supervision!

A little bit of background: The California Constitution disenfranchises felons who are "imprisoned or on parole". In League of Women Voters of California v. McPherson, the First District Court of Appeal ruled that these categories did not include people who were in jail as a consequence of violating felony probation. After Realignment, thousands of non-serious, non-violent, non-sexual felons were sentenced to jail terms. A prior litigation effort on their behalf was unsuccessful (though we raised some important questions that were left unanswered.)

The current litigation effort was more modest, but also perhaps more realistic, seeking to restore the right to vote not to all realigned felons, but only to those under mandatory supervision. Folks under supervision serve time on the outside, under conditions strongly resembling probation. The prospective voters' advocates were successful on the first round. The former Secretary of State appealed, and just as the parties were ready to go forward, the current Secretary of State, Alex Padilla, withdrew his appeal, with the outcome that voting is restored. And here's what Secretary Padilla had to say--here at CCC we wholeheartedly concur:

“Passage of the Voting Rights Act was not easily won,” Secretary Padilla said. “People marched. People struggled. People died. They bravely sacrificed for each other – for friends, family, for our country so that each of us could be empowered with the opportunity to participate meaningfully in our democracy.” 

“Civic engagement and participation in the election process can be an important factor helping former offenders reintegrate into civil society.  If we are serious about slowing the revolving door at our jails and prisons, and serious about reducing recidivism, we need to engage—not shun—former-offenders. Voting is a key part of that engagement; it is part of a process of becoming vested and having a stake in the community,” Padilla added. 

“The United States Supreme Court eloquently proclaimed, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 

“Our California Supreme Court has made similar pronouncements: “No construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning.”   

“Today’s announcement is in line with these statements, the arc of California history, and the spirit of the Voting Rights Act,” Padilla said. 

See you at the ballot, fellow Californians!

A Jury Trial in Brazil

On September 3, 2008, Marcos Venicius Amon Barbosa finished his 48-hour shift at the shipyard. Before driving home, he stopped for a drink. Shortly after he resumed his trip, he ran a red light at an intersection in Vitoria, killing one woman and injuring eight more people.

Today, six years after the event, I attended his trial for vehicular manslaughter at the First Criminal Department of Vitoria. I was graciously invited by the prosecutor, Daniela Moysés, whom I had met the day before on our prison tour. Prior to her impressive legal career, Daniela had been a civil engineer, which requires five years of study in Brazil, and after a few years of working as the engineer of the court system she decided to change direction and studied law at UFES (another five years of education!). After passing a special competition for a prosecution position, she worked for several years in a rural area, and transferred to Vitoria as a special jury prosecutor.

In Brazil, jury trials are reserved only for crimes against life that involve criminal intent or recklessness. The state selects 25 people to serve on a jury, and they serve for two months. Every trial requires only seven jurors, which are elected from the 25-person panel by way of lottery. Employers have to eat up their employees’ two-month absence, even though they are unhappy about it. It is a big commitment, which is why Judge Victor Ribeiro Pimenta started the hearing by thanking everyone for their service.

At this point, after several weeks, the judge, the prosecutor, and the jurors know each other fairly well, and the judge told me that he tries to make it a positive experience for them even though the trials revolve around heavy matters. So, he joked with them a bit before the defendant was brought in.

Escorted by the military police, the defendant sat in front of the court on a chair with no table. His attorneys sat at a table to his left, requiring them to get up and approach him if they wanted to tell him something or confer with him. Today, he had three defense attorneys, all private, to speak on his behalf.

Then, the judge ran the lottery. He put labels with the jurors' names in a special box, shook it, and removed labels one by one.

For each juror who was selected, the judge asked the defense attorney and the prosecutor if they had any objections. Each side gets three strikes, all peremptory, and they don’t need to offer an explanation. The prosecutor objected once, to a man whom she and the other prosecutors had seen falling asleep at the trials. I asked whether the challenges are sometimes used strategically. Daniela said that, in a drunk driving case, she preferred female jurors, whom she felt would be less sympathetic to a drinking man then male jurors. She got four women and three men. As each newly selected jurors stepped to the jury box—two rows of chairs behind tables—they wore black robes. The judge then announced the “jury winner”—the juror whose number had come up most frequently in the history of that particular panel—and awarded her a box of chocolates as gratitude for her service.

Everyone smiled and clapped. It was a nice, warm gesture to alleviate the stress and gravity of the trial to follow, and was very characteristic of the way Judge Pimenta runs his courtroom, always adding a smile and levity to the situation. Of course, the only person not laughing was the defendant, and conscious of his anxiety, Daniela muted her reaction to the joviality. Judge Pimenta swore the jurors one by one.

From the moment of selection, the jurors are prohibited from communicating with each other about the case. Deliberations are forbidden, and each juror votes secretly according to his or her own conscience.

Prior to the jury selection, the prosecution and defense conferred briefly on testimonies. Out of the eight surviving victims, four showed up for the trial. One of them testified that the traffic light was yellow when the defendant’s vehicle entered the crosswalk. The defense wanted that victim to testify. However, said the judge, if that’s the case we’ll want to testify all of them, and the rest will testify the light was red. Daniela didn’t want the witnesses to testify; she was concerned that they would go off on tangents and be unhelpful. One of them even said, shortly after arriving to the courtroom, that she did not want to see the defendant. The bottom line was that no witnesses testified at all.

The jurors were handed copies of the accusatory document, which already includes summaries of the evidence against the defendant and the judge’s “pronúncia” – the decision to bring the case to the jury in the first place. They were given some time to read it, and one of the court workers brought in a big tray with little cups of strong coffee for everyone to sip while they read. All parties, except the defendant, were served coffee, and small trays of cookies for everyone followed. Food is very meaningful in Brazilian culture, and eating together is an important social ritual. At cookie time, Daniela explained to me that the judge had the discretion to close the case based on police evidence, and sometimes does, and also the discretion to decide that the case was not befitting a jury panel and should be sent before the judge.

After the jurors familiarized themselves with the facts, the judge asked the defendant a few questions about his work, familial status, etc. He explained to the defendant that he had the right to testify and very respectfully presented everyone—the jury, the prosecutor, even me—to the defendant, as if we were all seated in the judge’s living room. He then asked the defendant whether he wanted to testify. The defendant replied that he did not, and that his testimony in the police station—in which he admitted to being drunk and falling asleep behind the wheel—could speak for him. He was visibly anxious and very miserable.

The judge allowed the prosecutor to speak, and she started by acknowledging every single person—even me—by name. She smilingly introduced the defense attorneys, referring to each by name, and gently needled them about being “three against one”. She started by expressing thanks to the jurors for their important service, and ended by saying to the defendant that we all wanted justice and that we were hoping to be fair to him.

Then, she proceeded to present to the jury her theory of the case. In the absence of witnesses, the attorneys were allowed to give lengthy speeches to the jury, walking them through the evidence. I was told that, had there been witnesses, they would first be examined by the judge to give their version, then by the prosecutor, and then by the defense attorneys. Parties are allowed to cross-examine the other side’s witnesses. Attorneys could object to questions and the judge could disallow them, and often judges would disallow questions on their own, not prompted by a party’s objection. In general, the judge plays a much more active role in conducting the trial, getting up frequently from his chair, conferring with the attorneys, addressing the jury, and attending to administrative matters (it also is possible that Judge Pimenta is particularly lively and engaged.)

In this particular case, the speeches pertained to an interesting question of substantive criminal law. Brazilian law allows for two types of criminal intent: a desire that the result occur, which is the equivalent of first/second degree murder mens rea in American common law, and awareness of the possibility that the result might happen. According to the prosecutor, this case fell into the latter category. Because the defendant had just left his shift and then decided to go drinking, he must have been aware of the possibility that he could commit an accident, and therefore assumed the risk of doing so. She combined her explanations of criminal doctrine with testimonies of the victims in the case, and the defendant’s own testimony in the police station. The jury attentively followed her, flipping through their materials. While obviously sympathetic to the victims and their suffering, the prosecutor was also sympathetic to the defendant, especially given the long time that had passed since the accident. After her speech was finished, she and I discussed her theory of the case. Brazil does not have plea bargains, except in very small cases, where they are legally proscribed “discounts” for pleading guilty and/or for providing information about the crime. Had the Brazilian system allowed them, she would probably had agreed to a guilty plea to a lesser charge of homicide, even though she thought her theory of the case was sound and the defendant acted with “conscious negligence” (the equivalent of recklessness in common law), because of the time that has passed since the accident and its effect on the defendant. She therefore told the jury that her argument was doctrinal-technical, but that they should vote with their conscience. She thought that her lucid but tempered argument may have communicated to the jury that, as opposed to other homicide cases they had seen during their two-month tenure, this one was not one of the serious ones.

After the prosecutor finished, the first of three defense attorneys, Joao Angelo, rose to speak. Like the prosecutor, he started his speech with a very gracious address to everyone in the room (including me). He thanked the prosecutor for her “calm and respectable” presentation (perhaps hinting to the jury that even the prosecutor was not out to get the defendant.) He then proceeded to argue the case. He spoke mainly of two things: the fact that the defendant obviously had not desired the lethal outcome and did not seek it, and the suffering he had been through in the years since the accident. Some of the argument was legal, but for the most part it was a plea for clemency. Criminal procedure in Brazil allows the prosecutor the opportunity for rebuttal, but doing that opens the door for a subsequent rebuttal by the defense. Because she didn’t feel the case merited a severe outcome, Daniela quietly made the decision not to rebut.

After the defense attorney’s speech, we all broke for lunch. When the judge invited me to eat with them—which was very kind of him—I didn’t quite know where we were headed. It turns out that, on days in which trials are heard in the morning, everyone—the judge, the prosecutor, the defense attorneys, the jurors—share lunch together in the courtroom, sitting around a large table. The court employee in charge of the jury, who also wears a little black robe, arranges for a very nice and rich meal, and so we all chatted amicably around the table, eating roasted chicken, rice, vegetables, plantains, and manioc flour. There was a tacit agreement that no one spoke about the case, and people just had a nice, companionable lunch together for almost an hour before the trial resumed.

When we returned to our seat, the two remaining defense attorneys proceeded with their argument. Their arguments were fairly theatrical and exaggerated, but their essence was the same as that of the first attorney: that the defendant should receive clemency. The second attorney even mentioned that the aftermath of the accident drove the defendant to a suicide attempt, which was not proven in any external materials (and the jury might or might not have believed.) He was divorced after the accident, but we did not know whether the divorce was related to the accident. The prosecutor felt that the attorney misquoted her, arguing a point of law she hadn’t actually made, but she clearly prioritized fairness in the defendant’s case over an ego battle and decided to let it go.

As the defense attorneys argued their case, the judge typed up a list of interrogatories for the jury. It was titled “Quesitos”, and for each of the nine victims it listed four questions:

1.     Had the victim suffered an accident?

2.     Did the defendant drive the vehicle that caused the victim’s death?

3.     Did the defendant assume the risk that he might cause the accident?

4.     Does the jury choose to absolve the defendant?

Questions 1-2 are matters of fact (and clearly were not in dispute in this case). Question 3 is a matter of law, and Question 4 is a matter of ethics and morals. The breakdown of jury decision into interrogatories is new to Brazilian law, introduced in a 2008 amendment. The judge shares the interrogatories with the parties and revises them if they express reservations he accepts.

After the attorneys were done, the judge emptied the room of audience (especially of the crime victims, because the vote is secret and there is concern about retaliation) and addressed the jury. He explained that he didn’t need their vote with regard to each victim, because the accident was the same. He also said that, since questions 1 and 2 were not in dispute, they were going to assume an affirmative answer to both, and start with question 3. He would ask question 4 only depending on the result of question 3. Each juror was handed a green ballot by the court employee, consisting of “sim” and “não” options. The judge asked question 3, again briefly explaining assumption of risk, and the jury voted. A court employee collected the ballots in a wooden box and closed the lid. The judge shook the lid and counted the votes. After 3 “sim” and 4 “não” responses, the deciding seventh vote was “não”, and the defendant was therefore declared not to have assumed the risk. The judge concluded that, in light of this decision, question 4 was not necessary. Daniela explained that, even though the interrogatory separates between the legal and ethical questions, juries frequently combine their answer in the legal vote.

With that, the jury’s part of the trial was over and I had to rush to the airport, but the judge and parties still had some work left to do. In the absence of a vote of intent, this was no longer a jury case, and the judge convicted the defendant of negligent homicide. The punishment was 4 years, but it was substituted by community work, and the defendant agreed to pay each of the living victims $250,00 dollars. The prosecutor walked away from the case feeling the decision was fair. Since the case presented a rather meaty legal question, as well as special personal considerations, no one was surprised that the vote came close. The jury faced a genuine dilemma and faithfully made an effort to follow the case and decide fairly.

“Is it crazy?” my friends, local academics and lawyers, asked me as they graciously gave me a lift to the airport. Crazy? I thought. Not really; that is, not necessarily less or more crazy than an American trial, or of any way which human beings orchestrate to pass judgment on their peers.

Many thanks to Daniela Moysés for inviting me to join her workday, to Judge Victor Pimenta for accepting me so kindly into his courtroom, and to everyone else involved in their trial for their graciousness.