Special counsel Jack Smith losing patience with Judge Cannon

Judge Aileen M. Cannon has left many legal experts dumbfounded with her handling of the criminal classified documents case against former president Donald Trump, the man who nominated her to the federal bench, reported the Washington Post.

And special counsel Jack Smith appears to be losing patience with her.

Smith’s office late Tuesday night filed an especially withering response to Cannon’s request for proposed jury instructions. The response reads as a challenge to Cannon’s jurisprudence and raises the possibility that Smith might try to go around her as the case proceeds.

The growing standoff is worth a breakdown, given that this might be Trump’s most legally problematic case.

Cannon had asked for the proposed jury instructions based on two scenarios involving competing interpretations of the Presidential Records Act. Even invoking the PRA in the instructions would be a gift to Trump. It would effectively inject the idea that the classified documents Trump held onto might somehow be his personal records in a way that many experts say is nonsensical and would severely jeopardize the case.

Those experts say the PRA has no bearing on the case, which instead involves the Espionage Act. They also noted that it’s unusual for a judge to request such jury instructions long before a trial date that hasn’t even been set and before ruling on the laws relevant to the case. 

Smith clearly agrees that the PRA issue is a red herring. And he wasn’t mincing words in his filing. On six occasions he called the legal premise behind Cannon’s request wrong. He repeatedly implored her to deal with the matter expeditiously. And — perhaps most notably — he repeatedly floated the idea of appealing to the U.S. Court of Appeals for the 11th Circuit.

“The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act,” Smith’s filing says, “and the PRA should play no role in the jury instructions.”

Smith goes on to indicate that Cannon’s request would effectively stack the deck against the prosecution.

He says that one version of the jury instructions Cannon requested would amount to “asking the jury to make a factual finding with no proper legal connection” to the case. He says that the other is even worse — that it “would amount to nothing more than a recitation of Trump’s PRA defense” and “would result in directing a verdict against the Government.”

National security lawyer Bradley Moss noted how unusual it is for a legal team to speak about a judge this way and said it was clearly born of frustration with Cannon.

“The exasperation that can be read into [the Justice Department’s] filing was clearly meant to convey a simple view to Judge Cannon: They want her to make her ruling already, take ownership of the moment if she thinks Trump is right on the law, and let DOJ take this to the 11th Circuit,” Moss said. 

One of the most striking sections is when Smith goes into some detail about his evidence on the Presidential Records Act. He not only argues that the PRA doesn’t bear on the case, but he says that no key witness has any knowledge of Trump’s designating the documents as personal records or believing his removal of them made them personal.

“To the contrary, every witness who was asked this question had never heard such a thing,” Smith says.

Smith even suggests that this justification was effectively invented long after Trump took the documents — by Trump ally and Judicial Watch President Tom Fitton, who Smith takes care to note is “not an attorney.” Smith says that before this point, a Trump employee who had spoken with Fitton about the idea “had never heard this theory from Trump.”

“No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022,” Smith says.

Smith goes on to comply with Cannon’s request for the proposed jury instructions to include discussion of the PRA. But he does so while making it abundantly clear that he was doing so begrudgingly. On three occasions, he specifies that he is “nonetheless” or “nevertheless” providing the proposed instructions “as directed by the Court.”

In both of his versions of the instructions, he includes sharp language intended to highlight the perceived absurdity. Each of the versions of instructions reads:

I instruct you, however, that, as to a former President, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a “personal record,” within the meaning of the Presidential Records Act (PRA), a statute that establishes the public ownership of presidential records and ensures the preservation of presidential records for public access after the termination of a President’s term in office.

The language there is a bit dense. But Smith is effectively arguing in the proposed instructions that the PRA can’t possibly apply to the case, even as he abides by the request to broach it.

Perhaps most important, the filing appears to be a direct challenge to Cannon. It notifies her that if she continues to insist on this, Smith’s team might try to go around her. And it urges her to act quickly on the matter to allow the prosecution to appeal before it’s too late and compromises the trial.

Were Cannon to make an erroneous ruling after the trial begins and if Trump were then acquitted, the government would not be able to appeal. 

“Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent ‘a correct formulation of the law,’” Smith writes. “If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions … it must inform the parties of that decision well in advance of trial.”

Smith twice alludes to seeking a writ of mandamus from the appeals court — effectively asking it to force Cannon to correct her error.

“The blunt, scolding language pervading the government’s response,” University of Miami law professor Anthony Alfieri said, appears intended “to make clear that the gravity of her errors will be magnified in the harsh, public light of appellate review, a result that will be both discrediting of and embarrassing for Judge Cannon.”

Some Trump critics have raised the possibility that Smith might try to get Cannon removed from the case. This filing doesn’t go that far.

But it does make clear that Smith views the current situation as untenable, and he feels the need to put Cannon on notice. Speaking in such terms about the judge presiding over your case is best avoided, but Smith appears to see no other choice. The big question is how Cannon will respond.

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Questionable jury instruction jeopardizes Philadelphia murder convictions

An imprecise metaphor may sound like a trivial matter. But figurative language deployed by a flamboyant and controversial judge more than a decade ago is now the basis for legal challenges by a dozen or more Philadelphians convicted of murder, reported the Philadelphia Inquirer.

Federal judges have already ordered new trials for two of them, and a third case is being negotiated to avert a similar outcome.

Now, it’s up to the Philadelphia District Attorney’s Office to decide how vigorously to fight those and any other cases overturned on the same grounds: jury instructions given by then-Common Pleas Court Judge Renee Cardwell Hughes that even the D.A. now concedes were unconstitutional.

Following a strongly worded opinion from federal Judge Gerald McHugh calling her instruction deficient, the D.A.'s office said it would no longer defend the instruction — putting itself in a tactically difficult position that may open the door for even more reversals. Now, the office is fighting to contain the fallout.

 “We’d have scores — dozens, potentially — you know, I mean, McHugh’s opinion is a recipe for relief in every one of these cases,” the D.A.'s federal litigation supervisor, Max Cooper Kaufman, said during arguments in federal court in May 2018, according to transcripts.

It began with the case of Basil Brooks, who was convicted of the 2005 slaying of Derrick Jones, shot dead on the street in West Philadelphia. The evidence against Brooks was, by all accounts, thin: primarily, the testimony of a single eyewitness who could not pick Brooks out of a photo array, who was high on Xanax at the time the crime occurred, and who faced pending criminal charges that were dismissed for lack of prosecution shortly after he implicated Brooks.

As the trial concluded, Hughes charged the jury with assessing whether Brooks was guilty beyond a reasonable doubt.

To assist them, she conjured a metaphor: “If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion.” Anyone would ask questions, do research, she explained — but at some point you have to decide: “If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.” 

Daniel Silverman, a lawyer hired by Brooks to comb through his case for errors, believed he’d found one in that instruction and filed a habeas petition seeking relief in federal court.

“The United States Supreme Court has unanimously held that upping the ante in that regard violates the due process clause of the 14th Amendment,” he said recently.

In August 2017, McHugh, of the U.S. District Court for Pennsylvania’s Eastern District, agreed. Considering that example of a terminally ill loved one, McHugh wrote, “What level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt.”

The District Attorney’s Office filed notice it would appeal McHugh’s decision. But after Larry Krasner was elected, it withdrew the appeal, which, if denied, could have led to a precedent-setting ruling. Its position now appears to be that the instruction was improper — but not to the point of voiding all relevant convictions.

Still, it is no mere technicality, said Shari Seidman Diamond, an expert on jury instruction and a professor at Northwestern University’s Pritzker School of Law.

“The whole system of criminal prosecution is based on the notion that we won’t convict somebody of an offense unless it is beyond a reasonable doubt — and, by that, we mean that the evidence has to be extremely strong.”

She called the instruction Hughes gave “objectionable.”

By likening convicting the defendant to securing lifesaving treatment for a loved one, Diamond said, “She kind of loaded the dice in favor of convicting. By this analogy, you sure are going to want to convict, and you should never create in the jurors the sense they want to convict.”

While judges have discretion in how they advise juries, many jurisdictions, including Pennsylvania, publish suggested standard jury instructions. Diamond prefers the instruction that U.S. Supreme Court Associate Justice Ruth Bader Ginsburg proposed in a 1994 opinion: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Hughes, a graduate of Georgetown University Law Center, was known for her unrestrained speech from the bench.

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Supreme Court to review racial bias in jury selection

On November 2 the U.S. Supreme Court will hear whether allowing lawyers to peremptorily dismiss potential jurors has simply become a way to discriminate, according to The Washington Post.
It has been almost three decades since the Supreme Court in a case called Batson v. Kentucky ruled that it was unconstitutional to strike jurors because of their race.
But almost no one thinks the problem has been eliminated. Prosecutors and defense attorneys need only find a benign reason for dismissal: a failure to maintain eye contact and an age too close to the defendant’s were among those accepted in the Georgia case.
Studies and experience have concluded that only the most incompetent lawyer will fail to come up with a justification that a judge can accept.
“Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place,” wrote Michigan State University law professors Catherine M. Grosso and Barbara O’Brien in a 2012 study of racial bias in jury selection in North Carolina.
If anything, lawyers might have more reason to rely on racial stereotypes today in choosing a jury than they did when Batson was decided.

The national attention that has accompanied police shootings of black men and racially motivated killings have widened the gulf between how whites and blacks view law enforcement.

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Supreme Court Reins in Double Jeopardy Clause

In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.

The Pennsylvania Law Weekly
June 5, 2012
In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.

On Nov. 28, 2007, Blueford was babysitting his girlfriend's 20-month-old son while she took a relative to an appointment. Shortly after leaving, the toddler stopped breathing. Another adult in the home called for help. The child later died in the hospital. The cause of death — a traumatic closed head injury.

According to court documents, Blueford was charged with murder. The prosecutors pursuing Blueford called a pediatrician and the state medical examiner. Both compared the child's injuries to those from a serious car accident. Prosecutors contended the injuries were intentional.

At trial, Blueford took responsibility for the child's injuries, but suggested the injury was the result of a tragic accident. Blueford said he was startled when the toddler waved a lit cigarette near his face, causing him to accidentally hit him in the head and knock him to the floor.

The court's instructions to the jury required the panel to consider the offenses of capital murder, first-degree murder, manslaughter and negligent homicide. The state of Arkansas' jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.

There are two basic approaches to jury deliberations regarding lesser offenses. A majority of jurisdictions use an "acquittal-first" instruction, requiring juries to unanimously convict or acquit the defendant of an offense before considering less serious charges.

Twenty-three other jurisdictions, including Pennsylvania, allow courts to give an "unable to agree" instruction. In these jurisdictions, the jury will consider a less serious charge after making reasonable efforts to reach a verdict on a more serious charge and finding itself unable to agree (Daniels v. Washington, 130 S.Ct. 85, 2009, Petition for Writ of Certiorari).

After deliberating for several hours, the Blueford jurors notified the court that they were hopelessly deadlocked. In explaining the deadlock to the judge, the foreperson stated that the jury was unanimously against charges of capital murder and first-degree murder, and nine of the 12 jurors were in favor of manslaughter. The following colloquy was entered on the record in open court:

The court: "All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder."

Juror Number One: "That was unanimous against that. No."

The court: "Okay, on murder in the first degree?"

Juror Number One: "That was unanimous against that."

Blueford asked for a partial verdict on the two most serious charges. The judge declined and instructed the jurors to continue deliberations. After the jury again reported a deadlock, the judge declared a mistrial.

The prosecution indicated the state's intention to retry Blueford. He moved to dismiss the capital and first-degree murder charges, citing the double jeopardy clause embodied in the Fifth Amendment to the U.S. Constitution. The trial court denied the motion, and the Supreme Court of Arkansas affirmed.

Blueford's case ultimately made its way to the U.S. Supreme Court. During oral argument in Blueford v. Arkansas, No. 10-1320, the petitioner's counsel zeroed in on the jury foreperson's statement that the jury had unanimously voted not guilty on the two most serious offenses. In responding to a question by Justice Stephen Breyer, Clifford M. Sloan, Blueford's attorney, said, "With respect, your honor, I disagree that it's a minor matter when a foreperson stands up, with the jury present, and says we have voted not guilty."

However, Justice Samuel Alito provided some insight into where the court was heading. Alito told Sloan, "The one characteristic of a verdict that seems perfectly clear to me is that it is final."

The double jeopardy clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment provides that the state should not be allowed to use its power and resources to repeatedly attempt to convict a defendant and thereby subject him to embarrassment, expense and anxiety and increasing the possibility that he be found guilty despite his innocence (Green v. United States, 355 U.S. 184 (1957)).

The Supreme Court found that the jury foreperson's statement of the jury's position was not final. The double jeopardy clause does not prevent the reprosecution of a greater offense if a jury deadlocks on a lesser offense.

"The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either," Chief Justice John G. Roberts Jr. wrote on behalf of the majority.

The court provided a hypothetical to bolster its position. The court theorized this: A jury begins its deliberations with a vote on first-degree murder. Everyone votes not guilty. The foreperson calls for a vote on manslaughter and the vote is split. The jurors then begin to discuss the case. At that point one of the jurors begins to rethink his vote on first-degree murder and changes to guilty.

Roberts concluded, "It was therefore possible for Blueford's jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes." He added, "And because of that possibility, the foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses."

Although plausible, Roberts' hypothetical did not reconcile with the facts in Blueford. Nor did the hypothetical resonate with all members of the court.

Justice Sonia Sotomayor dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. She wrote, "Blueford's jury had the option to convict him of capital and first-degree murder, but expressly declined to do so."

The theory behind the "acquittal-first" jury instruction was to avoid double jeopardy problems by requiring the jury to render a verdict on the most serious charge or to hang without reaching any other charges, thereby allowing a new trial on all charges.

Blueford provided a different scenario — unanimity on the most serious charges and deadlock on the less serious charges. Sotomayor pointed to such a scenario when she wrote, "It would be anomalous if the double jeopardy clause offered less protection to a defendant whose jury has dead locked on the lesser and thus convicted of nothing at all."

The trial judge in Blueford should have honored Blueford's request for a partial verdict before declaring a mistrial on the deadlocked manslaughter offense — double jeopardy would have attached and justice would have been served. In light of Blueford, trial courts would do well to consider partial verdicts under similar circumstances.

The Cautionary Instruction: No tweets, no blogs, no posts, oh my

The Pittsburgh Post-Gazette/Ipso Facto
February 10, 2012

This week the Pittsburgh Post-Gazette suggested that readers take action to protect their rights to real-time updates from Pennsylvania’s courtrooms.

The Pennsylvania Supreme Court’s Criminal Procedure Rules Committee has proposed prohibiting the use of electronic communication devices in courtrooms. Specifically, the proposed rule would prohibit “transmission by cellular phone, personal communications device, computer, or any other electronic device that has communications capabilities or internet connectivity.”

Pennsylvania has trailed far behind other states in terms of making courtrooms accessible to a wider audience. Although, the Supreme Court let cameras in for some of their arguments, Pennsylvania remains one of only nine states with an outright ban on recording criminal proceedings.

Chief Justice Ronald D. Castille has made it clear that the commonwealth does not intend to make a dramatic shift in terms of opening Pennsylvania’s courtrooms. The Chief Justice recently acknowledged that opening the Supreme Court to cameras would, in turn, raise the question of whether trial courts should also be opened.

While the Supreme Court has the power to change the rules that bar recording, broadcasting and photography, Castille told the Allentown Moring Call the court has little interest in taking that step. "It's probably not going to be in the near future," he said.

The federal government bans cameras in the courtroom. Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. The national policy-making body for the federal courts, the Judicial Conference of the United States, provides that courtroom proceedings may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination.

Judge Mark Bennet of the United States District Court for the Northern District of Iowa recently permitted real-time electronic communication from his courtroom during a trial. He told the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent."

In New York, where cameras are also barred from the courtroom, a state court judge recently allowed a local newspaper to post live Twitter updates from inside the courtroom during a murder trial. Court administrator David Bookstaver noted that judges are often more distracted by reporters “coming and going” as they leave the courtroom to make phone calls, permitting the use of portable electronic devices keep reporters in their seats.

A ban on electronic communications is appropriate for jurors. In Pennsylvania, jury instructions have long admonished jurors to refrain from getting information from any outside sources including the internet.

Preventing the media from reporting on trials in real-time, essentially imposing a judicial “broadcast delay,” is an unnecessary suppression of public access.

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Internet creating havoc for judges and jurors

This is a troubling time when it comes to the use of the Internet in the courtroom. Faced with rapidly changing technology, judges are struggling to keep jurors from getting and spreading information about current cases online, reported Stateline. Doing online research on the defendant’s criminal record or consulting Facebook friends on a vote for sentencing might seem acceptable to some jurors, but it violates the oath “to base your verdict solely upon the evidence” as presented in the courtroom.

Internet research and communication in many cases is not malicious: Jurors may be driven by the desire to make sure they understand all the facts and definitions of complex legal terms. “Jurors are instructed in a number of ways as to their supremacy in judging the facts,” said Michael Hoenig, a products liability lawyer and author of several law journal articles on jurors and Internet use, in an email to Stateline. “Such instructions may, despite admonitions against Internet forays, act to ‘empower’ and embolden jurors into ‘searching for the truth’ even outside the courtroom.”

Even though a majority of states now prohibit Internet research or communication by jurors, studies have found that many jurors misconstrue the instructions or simply refuse to limit their Internet use during a trial. In a pilot study of 500 jurors across the country conducted by the National Center for State Courts (NCSC), researchers found that even after jurors had been instructed that they could not tweet, email, use Facebook, or communicate electronically with friends or family members about a case, one-third of respondents either didn’t understand or incorrectly understood what they could and couldn’t do when it came to using the Internet while acting as a juror, reported Stateline.

To read more: http://www.stateline.org/live/details/story?contentId=619920