Do not take my child away from me. 

Ms. L. 

vs

Government Immigration Entities. 

Introduction       

          In the Democratic Republic of Congo, women are being raped nearly every one minute. Women have reported high levels of sexual abuse in different cities of the country. The war in Congo will never stop, millions of people are dying, others are fleeing the country, and Congo is falling apart. Imagine women and children’s living conditions. Wouldn’t you desperately want to escape that horror?   

 

Mommy don’t let them take me.

          Ms. L. after escaping the Democratic Republic of Congo with her little daughter who was 7 years old. Traveled “7,884 mi Distance to the United States from Democratic Republic of Congo” and presented herself with her daughter S.S. to border guards at the San Ysidro Port of Entry on November 1, 2017. She told the officers the fear of going back to the Congo. She was given a credible fear interview. The asylum officer concluded she had a credible fear persecution. She was placed in formal removal proceedings to pursue her asylum claim.  

          When they initially arrived in the United States, they were detained together. Four days later, the child was taken away from her and sent 2,000 miles away to a facility in Chicago. She sobbed when leaving her mommy. Without further arguments the defendants separated them. There was never any legitimate reason to separate them. Separating immigrant parents from their children is unconstitutional. Ms L. and S.S were not able to see each other, and every time they spoke on the phone S.S had been crying and afraid. Ms. L likewise depressed, sad, and unable to eat or sleep. This separation is causing emotional and psychological harm and could potentially lead to permanent emotional trauma. After Ms. L. filed a lawsuit, she was notified of her released just hours in advanced from custody on March 6, 2018. No arrangements for a place to stay were made. The child was not released and remained in custody alone in Chicago. 

Question

“Let’s assume that due process is afforded as constitutional right to mothers of another country who illegally enter the United States with a child and are seeking asylum in the United States. Before separating the mother and the child, what would be required to afford them due process?

Not Guilty!

Matthew McConaughey playing Lee's Lawyer

A Time to Kill

The movie ATime to Kill based on John Grisham's novel is arguably an example of jury nullification. The premise is that a black man (Karl Lee played by Samuel L. Jackson) whose daughter was gang-raped takes the law into his own hands. Lying in wait (with an M16), he kills the suspects at the courthouse where the arraignment is set to take place. Fast forward to the end of Lee’s trial. After Lee’s lawyer gives the most persuasive closing argument ever, the jury acquits Lee of not only the two counts of murder for the two suspects he shot but also the attempted murder of the deputy escorting them. Jury nullification?

We Couldn’t Trust Our Lying Eyes

Another high profile case of nullification touched off the 1992 Rodney King riots. Caught on videotape, what happened to King was viewed as a clear-cut case of police brutality. After four officers stopped King following a 15-minute high-speed chase, he was hogtied and beaten, receiving multiple cuts and fractures. Apparently, the mostly white jury “couldn’t trust their lying eyes”—the officers were acquitted in state court of all but one of the charges.  

What is Jury nullification?

A jury's knowing and deliberate rejection of the evidence or refusal to apply the law because either the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.

[i]

That’s right. Jury nullification is a jury taking the law into its own hands. Some call it vigilantism; some call it justice.

(Video by C.P.G. Grey)

Pro and Anti-nullification Beliefs

Pro-nullification advocates cite the 1^st amendment to support the right to inform jurors of their right to nullify,[ii]and the 7^th Amendment, which prevents federal judges from overturning jury verdicts. Historically, when the government has tried to impose unpopular laws, juries have nullified verdicts. More recently, examples of nullification are acquittals of mercy killers, including Dr. Jack Kevorkian (AKA Dr. Death).

Anti-nullification advocates view informing juries as jury tampering. The New Hampshire Supreme Court gutted (includes "NJ Weedman" video) a law via a marijuana case, stating, "It is well established that jury nullification is neither a right ... nor a defense recognized by law."

The Supremes Say

Jury nullification is both prohibited and protected. Huh? That’s right, it was officially condemned by the United States Supreme Court in Sparf[iii]and “yet allowed – even encouraged – to survive by various, unyielding protections of jury decision-making.”[iv]Supreme Court Justice Scalia said,[v] “jurors ‘can ignore the law’ if the law ‘is producing a terrible result.’”

Mark Roberts Mission

You might think that jury nullification isn’t a Utah issue, or is limited to the movies. Others, however, including Utah House Representative Mark Roberts are convinced otherwise. Rep. Roberts is working to pass legislation requiring juries be told about their right to nullify (under certain circumstances). His 2018 bill HB284 failed by a slim margin. Listen to the committee hearing[vii]and watch the super interesting 2018 House floor debate of his legislation.[viii]

Do juries have the right to nullify? Should they?

If jurors have the power to nullify, should they be told so? 

Me? I was entirely against nullification. The idea of juries willy-nilly doing whatever they want scares me to death. However, Rep. Roberts' bill has some safeguards (i.e., the judge grants the defendant's jury instructions request to include nullification). In the end, I'm still against it. I can't conceive of any sensible safeguards.  Rep. Roberts' bill asks the judge to determine when a jury wouldn’t need to follow the law? That turns the entire legal system upside down. 

---

[i] See U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997) at http://cases.justia.com/us-court-of-appeals/F3/116/606/611938/

[ii] See Fully Informed Jury brochure at https://www.rcfp.org/newsitems/docs/20110204_143735_new_true_false.pdf; Also, See Fully Informed Jury website at https://fija.org 

[[iii] Sparf v. United States, 156 U.S. 51, 101 (1895) at https://supreme.justia.com/cases/federal/us/156/51/ (Sparf remains the last direct opinion of the Court on jury nullification. While it does not prohibit juries from disputing the law in a case, it denies them any right to do so.)

[iv] Duvall, Kenneth. “The Contradictory Stance on Jury Nullification.” North Dakota Law Review, vol. 88, no. 2, 2012, pp. 427-436. at https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf (Although this entire article is pertinent and interesting, pages 427-435 addresses jury nullification control devices use or lack of use.)

[v] Frazier, Mansfield. “Can Juries Ignore ‘Immoral’ Laws by Nullifying Them?”Daily Beast, Dec. 29, 2011. ¶ 23

[vi] (See What would the Supreme Court likely say upon revisiting the issue. Section VI Part B pp. 429-488 at https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf)

[vii] (To listen to the audio recoding scroll to HB284 on the menu under the video/audio recording box. This is an 70-minute recording.)

[viii] (To watch the floor debate scroll to HB284 on the menu under the video/audio recording box. This is a 22-minute recording.)

YOU NEED BOB LOBLAW

I’ve Made a Huge Mistake

Upon the death of his mother, Martin Frazier traveled to Portland, Oregon, and stayed at the home of an aunt where he shared a room with her son Jerry Rawls. On September 22, 1964, police discovered a body, and the cause of death determined to be manual strangulation. Frazier was arrested at approximately 4:00 p.m. on September 24, 1964, and Rawls was arrested later that same day.

The officers who arrested Rawls were admitted into the home by the aunt and Rawls to search for Rawls’ clothing. Although a search warrant was never obtained, a police officer testified, “I asked Jerry Rawls if we could have his clothing and he said ‘yes.’ I asked him where it was and he said it was in a blue bag in his bedroom.” The police took into their possession a blue bag and its contents, which contained Rawls’ clothing and other clothing and property belonging to Frazier which had stains that appeared to be blood. Rawls made a written confession and pleaded guilty.

The Hits Just Keep on Coming

In Frazier’s trial (State v. Frazier), the district attorney made an opening statement in which he told the jury that he expected Rawls to testify and stated what he anticipated would be Rawls’ testimony. The D.A. did not mention that Rawls had confessed. After the opening statement, Frazier moved for a mistrial and the trial court denied his motion. When the prosecution called Rawls to the stand, he invoked his Fifth Amendment privilege against self-incrimination and refused to answer any questions. Rawls was dismissed as a witness. Frazier moved again for a mistrial and was again denied. No other reference to Rawls or his confession was brought up during the remainder of the trial. Frazier was convicted of second-degree murder. The district court regarded the prosecutor’s opening statements as an admission of Rawls’ prior statements into evidence with no opportunity for Frazier to cross-examine Rawls.

On appeal, the Ninth Circuit Court determined that “A prosecutor’s use of opening statements to outline the anticipated testimony of a witness who never testifies does not amount to prosecutorial misconduct that requires the declaration of a mistrial when the prosecutor’s statements are not made in bad faith and do not result in unfair prejudice to the defendant… Although the trial judge did not specifically instruct the jury to disregard the prosecution’s references to Rawls’ anticipated testimony, the judge did give a general instruction that opening statements are not evidence.”

I Don't Understand the Question (and I Won't Respond To It)

-Do you believe a prosecutor’s use of opening statements to outline the anticipated testimony of a witness who never testifies amounts to prosecutorial misconduct?

-Should this situation require the declaration of a mistrial only if the prosecutor’s statements are made in bad faith and result in unfair prejudice to the defendant?

-Is the defendant’s best recourse to point out to the jury the prosecutor’s broken promise as an indication of the weakness of his case?

Salinas v. Texas

All,

This case has been on my mind since I wrote a paper in April.  This was one of the hardest papers I wrote because even though all of the law reviews tended to agree with my position, I had a sneaking suspicion that the outcome of this case was more complex and "correct" than I first thought.

The paper is being sent via email.  Links to the cases below:

Salinas v. Texas, 570 U.S. ___ (2013).

Berghuis v. Thompkins, 560 U.S. 370 (2010).

The Thing About Ethics Is...

Note:  Please refer to the Docket, Second Amended Complaint, and Order of Discipline that were sent to the class members via email.  Certain documents referenced in this blog post are not readily available on the Internet. 

As a profession, lawyers are bound by ethical rules of practice in order to maintain their license.  The Utah Supreme Court has vested the authority of the regulation of the practice of law to the Utah State Bar.  See Judicial Council Code of Judicial Administration § 14-102(s)(1).  The Utah State Bar’s Office of Professional Conduct (“OPC”) is responsible for ensuring that lawyers are following the Rules of Professional Conduct and are authorized to investigate allegations of violations of the Rules of Professional Conduct, prosecute allegations in District Court, and provide informal guidance to Bar members regarding professional conduct. See Office of Professional Conduct, Utah State Bar, http://www.utahbar.org/opc/ (last visited Nov 1, 2018);  The Discipline Process, Utah State Bar, http://www.utahbar.org/opc/the-discipline-process/ (last visited Nov 1, 2018); see also Judicial Code of Judicial Administration § 13.  Failure to follow the rules can lead to punishments varying from no action taken on the part of the OPC if the claim is not meritorious, a slap on the wrist for a violation of the rules in which the harm was minimal, to more serious punishments such as suspension or disbarment. 

Within the last week, news of the suspension of Sean Young’s license for three years was heavily reported on.  See Jessica Miller, Ineffective trial attorney? Appeal for Utah death row inmate sent back to trial court for an evidentiary hearing, The Salt Lake Tribune, http://archive.sltrib.com/article.php?id=5040340&itype=CMSID (last visited Nov 1, 2018); Jessica Miller, This Utah attorney faced complaints from 20 clients — including a man sent to death row. Now, he’s banned from practicing law for three years., The Salt Lake Tribune, https://www.sltrib.com/news/2018/10/30/this-utah-attorney-faced/ (last visited Nov 1, 2018); Annie Knox, Utah attorney barred from practice for 3 years; He says he’s done with law anyway DeseretNews.com (2018), https://www.deseretnews.com/article/900039636/utah-attorney-barred-from-practice-for-3-years-he-says-hes-done-with-law-anyway.html (last visited Nov 1, 2018).  The articles all refer to four cases that were mishandled by Mr. Young, specifically calling out the Douglas Lovell murder trial.  During the handling of the Lovell case, Mr. Young lied to his co-counsel and stated that he had contacted the eighteen witnesses assigned to him when in fact he only contacted two of the witnesses, and Mr. Young only had cursory conversations with those two witnesses.  See Second Amend. Compl. ¶¶ 53-55 from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3^rd Dist. Court, Salt Lake City, filed May 14, 2018.  In addition to this allegation, Mr. Young is alleged to have violated Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4(a) (Communication), Rule 1.15(d) (Safekeeping Property), Rule 1.16(d) Declining or Terminating Representation, and Rule 8.1(b) (Bar Admission and Disciplinary Matters) across the four cases, totaling seventeen counts.  See Second Amend. Compl. In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3^rd Dist. Court, Salt Lake City, filed May 14, 2018. 

What was not mentioned in the news is that Mr. Young had sixteen other OPC cases opened against him that were dismissed as part of the settlement agreement between counsel for the OPC and Mr. Young.  See Order of Discipline from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3^rd Dist. Court, Salt Lake City, filed August 6, 2018.  Additionally, scrutiny of the docket indicates that Mr. Young failed to timely Answer an Amended Complaint and the OPC sought a default judgment against Mr. Young.  See Docket from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3^rd Dist. Court, Salt Lake City.  Since his disbarment, Mr. Young has indicated that he has been interested in pursuing a new line of work and leaving the practice of law anyways.  See Annie Knox, Utah attorney barred from practice for 3 years; He says he’s done with law anyway DeseretNews.com (2018), https://www.deseretnews.com/article/900039636/utah-attorney-barred-from-practice-for-3-years-he-says-hes-done-with-law-anyway.html (last visited Nov 1, 2018).

Bar Associations typically place a high premium on ethical behavior of their members.  Lawyers must complete Continuing Legal Education (“CLEs”) as part of maintaining their licenses and ethics and professional conduct is usually a standard requirement as part of the CLE submissions.  For the Utah State Bar, a total of 24 CLE credits must be submitted by lawyers every two years.  Of those 24 credits, 3 of those credits must be on ethics and one of those ethics credits being focused on professional conduct. 

Questions for consideration:

1.      Do you think that the Utah State Bar should require more CLEs to focus on ethics?

2.      I have heard in passing that the Bar will not move to suspend or disbar attorneys even if they egregiously violate the Rules of Professional Conduct (including comingling fees).  Should the Bar be more aggressive in pursuing action against attorneys that violate the rules or perform extensive auditing on attorneys?