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November 16, 2009

Justice Scalia is coming to town...

Scalia200 to be the keynote speaker at The Ohio State University Moritz College of Law's event on "Originalism and the Jury".  This exciting event is hosted by the Ohio State Law Journal, and I really like the plug that participant Orin Kerr gives this "very cool symposium" in this post at The Volokh Conspiracy:

We’ll discuss the Sixth and Seventh Amendment jury trial rights, their original meanings, and to what extent courts should or are likely to match the modern jury trial right to what existed at the time of the framing.   The symposium is notable for the unusually diverse perspectives of the speakers: It features judges, professors, and practitioners in roughly equal numbers.  Justice Scalia will deliver the keynote address.

Along with Orin and Judge Nancy Gertner and Professor Stephanos Bibas, I am on the Sixth Amendment panel.  I will be presenting the (radical?) idea that the Framers likely would have wanted juries to play a role in modern habeas actions.  But, candidly, I am most excited to hear what all the other participants have to say about originalism and juries.  And, of course, I am also excited to hear what Justice Scalia has to say about these topics. 

I suspect I will be off-line most of Tuesday while this event is on-going, though perhaps I will find time late in the day to blog about aspects of the event.  I may also try to keep track of how many times Blakely gets mentioned throughout the symposium, though I am not sure if I should count all the times I mention the case in my own remarks. 

UPDATE:  As detailed in this AP report, Justice Scalia focused on originalism rather than on the jury in his keynote speech.  The entire event was remarkable, and I enjoyed all of the panel presentations tremendously.  I also had the honor of sharing a table with Justice Scalia at dinner and was able to confirm first-hand what a personable and engaging gentleman he is.

November 16, 2009 at 11:18 PM | Permalink


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Will anyone be discussing the original understanding of the representative cross-section requirement of the Sixth Amendment?

It would be a short talk.

Posted by: Kent Scheidegger | Nov 16, 2009 11:57:41 PM

Below is something you will never hear from the above dumbass lawyers. Dumbass is a lawyer term of art, and not an epithet. It refers to people with IQ's of 300 who undergo legal education and become total mental cripples. They emerge with less logic and common sense than mentally retarded kids in Life Skill class. Worse, the education fools them into thinking they are smarter than everyone in the country. They actually believe they can impose their dumbass ideas at the point of a gun on the hapless nation, when they have been made stupider than plants. The result is catastrophic failure of every goal of every law subject, due to their incompetence and their arrogance.

Scalia is the biggest criminal lover on the court, for example. The dumbass thinks he is tough on crime. OK. He opposes the use of foreign law. The dumbass quoted not just a foreigner in Blakely. The bewigged weasel Scalia quoted voted for the Stamp Act. He put our beloved patriots on trial, and condemned them to death in absentia. Our foreign agents should have gone over there, to that foreign country, and wacked him with sticks and axes. To deter. Scalia is a sickening criminal lover. As his betrayal percolates to street level, he will have assassinated 1000's of excess murder victims.

You will never hear this plain high school stuff from the above dumbasses.

1) The physiological lie detector has been banned as evidence from any trial.

The lawyer has been indoctrinated into the propaganda that twelve strangers off the street, after excluding any with knowledge, can detect the truth by using their gut feelings.

This is ridiculous. It would be funny and easily mocked. The problem for the nation is that this group gets to sentence people to death and transfer $billions from productive parties to parasitic clients of lawyers.

What you are getting from gut feelings is how likable the witness is. That is the strength of the sociopath, not nervous, smooth, answer for everything.

In addition the lawyer wants to put on a Broadway production before naive civilians to control the trial, to generate lawyer fees. Let a knowing judge visit the scene of the crime, to end the case, the judge will get crushed and impeached.

OK, let's say, the jury is pretty good judge of truth telling. It is a lie detector by the use of gut feelings. They take a first secret ballot on the verdict. They do not have unanimity. What follows is the total eradication of any validity of the jury vote. After the first secret ballot, the verdict reflects the bias of the biggest loud mouth bully on the jury, and the rest who want the trial over to go home.

2) The adversarial system was a method of deriving an answer through disputation in Scholasticism. OK and cool in 1250 AD, ridiculous in 2010 AD. Not only is the disputation church. Worse, it is French.

3) Because they did not have data, nor even the idea of getting data, they only had the text. So, when you see a dumbass parsing a text word for word, looking for the winning advantage, you are looking at 1250 AD methodology, church derived, French in origin. The dumbasses will be quoting minutiae from texts. The texts have no validity. Their passages have no validity in proving anything. The racist dumbasses will be hobnobbing, thinking they are so smart. Meanwhile, their incompetence will allow 5 million violent crimes and 17,000 murders, much of it concentrated in minority areas.

4) If anyone believes in prayer, let us all pray, Scalia gets carjacked and pistol whipped for failing to move fast enough. He does not listen. He believes he knows it all. He could then experience to what he is condemning millions of crime victims. That experience would be more persuasive than years of disputation.

Posted by: Supremacy Claus | Nov 16, 2009 11:59:56 PM

s.c. I know your wife's divorce lawyer took you for a bundle, but aren't you overreacing?

Posted by: anon12 | Nov 17, 2009 12:41:08 AM

Anon12. The carjacking and pistol whipping are a bit over the top. The rest is absolutely on target.

Aren't you the least bit embarrassed to do business as they did 800 years ago?

To their credit, 800 years ago, juries had good knowledge. They has walked the metes and bounds of the disputed land 10 years before. They knew the criminal since childhood, and all his tricks. The jury provided the knowledge of the crowd at least. It was not a sterile collection of members of the leisure class, who were not smart enough to get out of the duty.

Posted by: Supremacy Claus | Nov 17, 2009 12:50:39 AM

I'd be interested in anything that is said about nullification and the original understanding of the sixth amendment; I found Judge Weinstein's opinion a few years ago pretty persuasive.

Of course reliance on the original understanding of the jury right has its limitations... for example, one of the reasons the fair cross section requirement was not much spoken of at the founding was probably that only white male property owners were eligible for jury service.

Posted by: Observer | Nov 17, 2009 10:05:52 AM

s.c., honey, tell us what you propose instead for a system of self-governance. Write it up, sweetheart, with a fair amount of detail--you seem to know how to access information--and please do not skip the archaic and obsolete (pre-originalist please) since that is so much fun to think about and consider. Then send us all a link. We'll read it, baby. At least I will.

Posted by: t | Nov 17, 2009 10:36:48 AM

Observers writes, "Of course reliance on the original understanding of the jury right has its limitations... for example, one of the reasons the fair cross section requirement was not much spoken of at the founding was probably that only white male property owners were eligible for jury service."

IMHO, that is not a limitation on original understanding. What that shows is that the Sixth Amendment has no cross-section requirement. Taylor v. Louisiana reached a correct result under the wrong section of the Constitution. It should have been an equal protection case.

Posted by: Kent Scheidegger | Nov 17, 2009 12:08:03 PM

SC, one thing you said, above, I have believed a long time. That is, the jury is not very scientific. Now that we have the media to convince the defendant's peers long before any evidence is produced, it is even worse. The jury are not experts. It is like tossing a coin to go to the jury. That is probably the reason there are so many plea deals. I have seen jury members questioned on tv after a big case, and they say things like, "well, it was going on so long,,,, I didn't want to stay there forever, most of the jurors thought he was guilty, and they were getting angry with me." Or they make other remarks that indicate that in their minds, they just tossed a coin, and went on home.

Posted by: DLJ | Nov 17, 2009 3:47:37 PM

Maybe you can ask Justice Scalia about this quote of his http://www.nytimes.com/2009/05/12/us/12bar.html?_r=2&scp=3&sq=scalia&st=cse:

But Justice Scalia explained that Mr. Sutton had been hired by Justice Lewis F. Powell Jr. after his retirement and then helped out in Justice Scalia’s chambers.

“I wouldn’t have hired Jeff Sutton,” Justice Scalia said. “For God’s sake, he went to Ohio State! And he’s one of the very best law clerks I ever had.”

My wife, who went to OSU undergrad and law,still bristles at that one.

Posted by: ThreeSheets | Nov 17, 2009 3:50:25 PM

One thing I would like to ask Justice Scalia, is about using old, old juvenile adjudications in sentencing an adult, some 20 years later, when the guy had done nothing in between. I know the argument in Kansas is "that is for sentencing, its not punishment" but if it gets a guy 10 extra years, it sure does seem like punishment. Is there a sixth amendment right to a jury trial? In Kansas, they just made one this year, but it isn't retroactive. Kansas statutes still insist that in Apprendi, it menat "except a prior conviction or adjudication." (and the adjudication did not have the possibility of a jury trial.)

Posted by: DLJ | Nov 17, 2009 3:52:28 PM

T: I have compared the trial to cutting hair. Both are difficult to learn to do well. My hair cutter went to school 2000 hours to learn cosmetology. She took a written exam, and a licensing official saw her cut the hair of three types of people.

There should be separate judging schools. Experienced older adults would apply. They should have suffered a little. They should have taken responsibility for decision making in another field. The retired military officer would be the prototype applicant.

They learn judging from books for two years. The third year, they judge cases under the supervision of an experienced judge. Then they take a judge license exam. Only the licensed may run for office or be appointed. They carry professional liability insurance to compensate those injured by any carelessness. They are protected from frivolous or retaliatory lawsuits by certificates of merit and bond posted by pro se litigants, including prisoners. Convince someone of the merits or else get no bond.

The judge may do as he pleases, and investigate to his heart's content. He may use a jury with knowledge, including knowledge of the parties, not just the subject matter. As to the problem of bias favoring the police over the defendant, that is unprofessional conduct, and should be punished with fines and suspensions.

In the death penalty, there should be no doubt left, so the error rate is 2% and not 20%, a horrifyingly high error rate. All eyewitness utterances must have physical evidence validation. The word, evidence, will have the same definition as in science.

Posted by: Supremacy Claus | Nov 17, 2009 4:01:01 PM

DLJ: I believe the candid juror remarks you heard. They are nonetheless still horrifying if one believes in the rule of law. Jurors should be paid their standard pay per day. Current system violates the Thirteenth Amendment. Dragooned people work for a sandwich for weeks.

Posted by: Supremacy Claus | Nov 17, 2009 4:05:00 PM

Three Sheets:

In Scalia's world most lawyers have a GED JD.

Posted by: to the wind | Nov 17, 2009 4:10:19 PM

Kent, maybe I am missing something, but I don't see how there is a difference between the current situation and the "original" understanding of juries - in both cases the potential jury pool is based on those people who are elgible to vote.

On another note, supremacy claus, I believe you are mistaking cause for effect. I'm pretty sure that a lot of people go to law school specifically because they have no common sense in the first place :)

Posted by: virginia | Nov 17, 2009 5:14:44 PM

Antonin Scalia is an effete pig (i.e., a porcaccione - to use the Latin).

Posted by: vomitare velluci | Nov 17, 2009 6:01:16 PM

Jury trial rights?

Citizens who opt for a trial these days are in for the battering of their lives in a system that, contrary to popular TV and movie portrayals, is heavily stacked against those who challenge government accusations in court.

Trials have become anomalies on Mr. Scalia's watch.

For most defendants (innocent and wrongly accused as well as the guilty), the downside risks of losing have simply been pushed too high.

Hope somebody asks the good justice why only four of every 100 federal defendants and one of every four or five state defendants avail themselves of their oft-toutted jury trial rights.

Posted by: John K | Nov 17, 2009 7:24:57 PM

Virginia: Something definitely happens in law school. For example, take me, with a little legal training. Old, from another intellectual tradition, feeling totally superior to the dumbass lawyer, a ridiculous, pathetic loser in utter failure. Me in law school is like a 21st Century person going back in time to tell 13th Century people the earth is round and rotates about the sun. Even the basics is news in that world.

But...What is my remedy to the problems of the legal profession? Torts. I oppose all tort reform, even limits on punitive damages. I want nothing to shield the legal profession when the campaign to help them improve starts.

That is highly suspicious. The indoctrination may have reached even me, despite full awareness that it was going on, and mocking it all along. The smarter, the worst it can be. Luckily, I am not that smart.

I strike up a conversation with strangers about anything, antique cars, a bank loan, art education, anything. This has happened a half dozen times. They ask, you a lawyer? I certainly am not a lawyer. I think I am infected. That question sure shuts me up. I turn beet red, and suggest, "Smile when you call me that, pardner. Not a lawyer." They all smile.

Posted by: Supremacy Claus | Nov 17, 2009 8:28:26 PM

Justice Scalia is the single most interesting person in our field in the last 100 years. He is almost on the interesting level of the Dos Equis guy. I loved my one and likely only oral arg. It was a rush to fight with Scalia.

Posted by: Scott Forster | Nov 17, 2009 8:42:02 PM

John Kay,

It doesn't have anything to do with the fact that the vast majority of defendants are in fact guilty under any objective examination?

I honestly don't see the plea rate as being indicative of much of anything in regards to the convicted innocence rate. Even the argument of then charging people with perjury who provide a false guilty plea works for me. Let those folks who go to trial get priority in court and testing time. Perhaps change the appeals rules as well to provide less argument forfieture.

Posted by: Soronel Haetir | Nov 17, 2009 9:33:39 PM


If we're talking about drugs, most property crimes and crimes of violence you're obviously right. Most defendants are guilty though, as we've learned from innocence projects, some obviously aren't.

But crimes arising from the vast array of vague, sweeping federal statutes, especially RICO, are a different story.

For anyone who bothers to look closely with an open mind, it soon becomes obvious any number of innocent (in a mens re actis re sense) or wrongly accused citizens end up signing plea agreements because the costs (upwards of $240,000 in a complicated fraud trial) and stakes (typically two or three decades in prison) of going to trial are simply too monstrous to risk.

For me the issue is the extraordinary power bestowed mostly on prosecutors to leverage plea deals by stacking charges and manipulating guidelines to make the risks of going to trial unthinkable even to innocent or wrongly accused citizens.

Posted by: John K | Nov 17, 2009 11:39:22 PM

Thanks for sharing this info..

Posted by: DUI Houston | Nov 18, 2009 3:58:46 AM

John K: Aside from the standard rent seeking explanation, what is up with the defense bar?

I am at an Obama party, with many Harvard Law grads from several cities on the East Coast. All seem to be in white collar criminal defense work. We are being funny, and friendly. I ask one of them about this. What about a counter attack on the government lawyer personally. Start with total e-discovery on the chap's work and personal computers, looking for child porn, and any sign of an improper motive, then filing ethics complaints at every off base utterance? The chatty, funny becomes, "This is not legal advice. We do not have a lawyer client relationship. However, what you propose is totally unprofesssional. If it were to ever happen, he would be substituted by a far more powerful, less flexible superior. I have to run now." But, but, wait a second, how is that unprof... Gone.

The standard explanation is that the defense bar does not owe its jobs to clients but to prosecutors. They once worked together. They are friends after the case. Nothing should be done to in any way deter the federal thug. Deter the thug, kill a defense bar job.

Someone in the defense bar explain to me why this personalized counter-attack on the prosecutor is not a professional standard of due care, to be enforced by the client's legal malpractice specialist hired to terrorize the disloyal defense lawyer.

I believe, it is a moral obligation of all innocent defendants to seek the defunding of a division and the personal destruction of the prosecutor through counter-suits, multiple complaints, and demands for discovery. To deter. As to the $240,000 cost, it is peanuts compared to the real cost of a false plea bargain.

I also support ending all self-dealt, unconscionable, highly damaging lawyer immunities, including those of prosecutors, judges, and even juries, if they decide to act like real knuckleheads. All should carry liability insurance to make whole the victims of their carelessness. Uninsurability due to repeated settlements may be a way to get rid of poor performers with lifetime appointments, even if protected by the constitution.

Posted by: Supremacy Claus | Nov 18, 2009 4:17:58 AM

A personable and engaging gentleman, who won't hire Ohio State law clerks (even though that's where one of the best clerks he ever had was from), enjoying a dinner sponsed by none other than Ohio State. Akward, huh? I wonder if that come up?

Posted by: anon | Nov 18, 2009 11:46:36 AM

Suprmacy claus, what other profession can someone with a basically useless liberal arts degree enter after taking what amounts to a three year vacation? Or maybe that was just me ;)

Posted by: virginia | Nov 18, 2009 12:43:53 PM

Virginia: Are you familiar with the shower scene in Psycho (based on a true story - the real "Bates" was a short, fat, bald guy, and a Momma's boy)? You had this slashing out of nowhere, and zinging, sickening, violin musical score to run chills down you spine.

At the turn of every page of every law book, that was the physiological reaction. You involuntarily screamed, gasped, and wanted to vomit. You certainly get your money's worth in horror movie chills, frights, and outrage.

Posted by: Supremacy Claus | Nov 18, 2009 11:39:01 PM

Virginia: If you are bored as a licensed lawyer, I can spice things up for you with some cases requiring some extreme lawyering. Some are potentially quite lucrative for the courageous lawyer. I do not believe in filing frivolous or weak cases. Nevertheless, the lawyering would be in the same class as a Rachmaninoff Piano Concerto, hard.

Posted by: Supremacy Claus | Nov 18, 2009 11:44:58 PM

"...what's up with the defense bar?" It's a good question, SC...apart from the standard rent-seeking explanation, of course.

One likely explanation is the poor batting average of the relatively few (in the bar or out) who've openly bemoaned the turkey-shoot the system's become over the past 40 years.

The last serious attempt, by Murtha in 1998 as I recall, died in committee.

The ranks of families who've experienced the system's dark side, while growing fast, is still too small to embolden pols to battle the get-tough demagogues.

Posted by: John K | Nov 19, 2009 9:49:48 AM

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