P.L.A. - A Journal of Politics, Law and Autism

PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism

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Saturday, July 05, 2003
Jurors Turn Away From Death Penalty

No person who does not believe that capital punishment is appropriate in some cases is permitted to serve on a jury when the government seeks the ultimate sentence. Despite that fact, jurors are more and more frequently refusing to impose a sentence of death.

In 15 of the last 16 Federal capital cases, jurors imposed life sentences rather the death penalty. From 319 death sentences nationwide in 1996, the total has dropped to 229 in 2000 and 155 in 2001. Why is that?

An excellent article by ALEX KOTLOWITZ in the New York Times Magazine attempts to answer that question.

Kotlowitz notes a number of macro factors that may explain the trend. Those factors include the publicity surrounding the use of DNA to clear death row inmates, the overall drop in the murder rate, the improvement of defense attorneys in developing and presenting mitigation evidence, the availability of life without parole as an option.

Kotlowitz's focus, however, is not on those macro trends but, rather, on one specific instance in which a jury chose to impose life instead of death.

That case involves the decision of 12 death penalty supporters to sentence Jeremy Gross to life in prison instead of death.

In 1998, then 18 year old Jeremy Gross, in the course of a robbery, committed the senseless murder of Christopher Beers. The robbery/murder was particularly gruesome:
At 2:40 a.m. on Aug. 26, 1998, along a main drag on the west side of Indianapolis, 18-year-old Jeremy Gross approached a convenience store with a friend. They intended to rob it. At 5-foot-8 and of slender build, Gross was not particularly physically imposing, and he had a distant look about him. He wore his blond hair in a bowl cut and often seemed nervous and fidgety. He knew the store well, since he worked there part time, and he also knew the young man, Christopher Beers, who was the lone clerk that morning. Beers, who was 24, had been raised by his father and had completed one year at Purdue University before running out of money for tuition. He was overweight and, according to his uncle, mild-mannered. He was working to earn money to return to school. An avid reader, he welcomed the graveyard shift; it gave him time with his books.

Gross stood outside the glass doors, behind his accomplice, Joshua Spears. He held a small, black semiautomatic pistol at his side, out of sight. Gross was jumpy, turning his head from side to side to make sure no one was in the parking lot. Beers buzzed them in. Gross took long, hurried strides into the store, raised his right arm and started shooting. It happened so quickly that Beers didn't have a chance to say anything. The first shot hit him in the abdomen. Gross continued to fire. Three shots missed, but a fourth hit Beers in the chest. ''Oh, God, please, no,'' he pleaded. As Beers stumbled into the back office, Gross followed and, to get a better angle, shifted the pistol from his right hand to his left. From close range, Gross shot Beers in the face. With blood now gushing from his eyes, Beers reached out for Gross, as if he were asking for support. Gross pushed him away, and he crumpled to the floor. ''Why, Jeremy, why?'' Beers asked. Gross told him to shut up.

Gross's partner, Spears, had headed for another room to get the surveillance tape, but he couldn't get the eject to function, so he grabbed the VCR. Meanwhile, Gross emptied the cash register and office safe of $650, then ripped the two telephone cords from the wall. This all happened in less than a minute. The two fled by foot, through a neighborhood of mobile homes to their trailer park not more than half a mile away. Along the way, Gross and Spears threw the gun and the VCR over a wire fence into a retaining pond.

After they left, Beers lifted himself off the floor and shuffled out the door to a pay phone, where he again collapsed. He died under a dangling phone, rivulets of blood running from his head.

There is no question of Gross’ guilt. He was seen entering the crime scene. He confessed to the murder and directed the police to the surveillance videotape that had captured the crime on film. Gross’ lawyer acknowledged to the jury that Gross was guilty of the crime.

Before trial, one juror said she “strongly favored” the death penalty on the grounds that “an eye for an eye” constitutes justice. Another juror opined that the death penalty is not imposed often enough. Each of the jurors swore that he or she supported the death penalty in an appropriate case. One prosecutor, after reviewing the videotape, commented that “''There isn't a jury in this world . . . that would not recommend the ultimate penalty in this case, the death penalty.''

And yet, the jury in Jeremy Gross’s case declined to impose death. Instead, the jury sentencedGross to life without possibility of parole. Kotlowitz sets out to find out why.

A few years after the trial, Kotlowitz interviewed nine of the jurors, the prosecutor, the defense lawyer and many of the witnesses to find out why the jury spared Gross’ life. He tells the story of the trial from the perspective of the jurors and other participants in an effort to understand how the jury made its decision to choose life over death for Jeremy Gross.

The article is fascinating reading. It is long and detailed but it is well worth your time. It may even change the way you think about death penalty cases.

Friday, July 04, 2003
Keeping Score

Max is keeping score on the President’s job creation promises.

On May 28 of this year, the President signed the Jobs and Growth Tax Relief Reconciliation Act of 2003. That was this year’s tax cut bill.

On April 24 of this year, the President traveled to Ohio to give a speech building support for the bill. After the speech, the White House provided a press release about the event. In the press release, the White house made specific promises about the effects of the tax cut on job growth:
President Bush traveled to Ohio to discuss the benefits of his jobs and growth plan with local small business owners and workers at the Timken Company in Canton.

The President is working to grow the economy and create the largest number of new jobs possible for America's workers. He has proposed a jobs and economic growth plan that would help create 510,000 new jobs this year and a total of 1.4 million new jobs by the end of next year. The President will not be satisfied until everyone looking for work can find it.

As the Economic Policy Institute has pointed out, in February of this year, the President’s council of Economic Advisors put out a statement in support of tax cuts. That statement claimed that in the absence of tax cuts, the economy would generate 256,875 new jobs per month.

Thus, according to the CEA, the economy would generate 1,798,125 jobs from June 1 through December 31 of this year if no tax cut had been enacted.

Mr. Bush claimed that the tax cut would generate an additional 510,000 jobs this year. For Mr. Bush’s promises to come true, the economy would have to generate 2,308,125 jobs in the June through December period. That averages out to 329,732 jobs per month.

The employment figures for June are in. Last month, the economy lost 30,000 jobs.

For Mr. Bush’s promises of job creation to come true, the economy must create 2,338,125 new jobs in the last six months of this year. That averages out to 389,688 jobs per month for the remainder of the year.

For the purposes of comparison, during the 1990s, non-farm payrolls grew by 21 million jobs. That is an average of 175,000 new jobs per month.

For Mr. Bush’s promises to come true, job growth for the remainder of the year will have to be a pace greater than double the rate of the 1990s.

I hope his promises come true. Along with Max, I will be keeping score to see.

Thursday, July 03, 2003
A Turning Point?

The New York Times ran this David Leonhardt New Analysis of George W. Bush’s economic record. Leonhardt writes:
For George W. Bush, the race has begun to escape comparisons to Herbert Hoover.

With more than two million jobs having disappeared since Mr. Bush took office in January 2001, he finds himself in danger of becoming the first president since Hoover to oversee a decline in the country's employment. Economists disagree on how much blame, if any, Mr. Bush deserves for the long slump, but even White House aides view the economy as one of the only big threats to his re-election campaign.

Now, a turning point could be approaching. The Labor Department will release its jobs report for June this morning, and some forecasters are predicting that it will mark the beginning of a rebound. An increase in the nation's payrolls — the odds of which are roughly even, Wall Street economists say — would be the first since January.

If today’s employment report was a turning point, it was not the one Mr. Bush was seeking. As the Times reported this morning:
In a bleak start to the Fourth of July holiday weekend, the government reported today that the nation's unemployment rate climbed to its highest level in more than nine years during June.

The Labor Department figures were almost uniformly bleak. Employers eliminated 30,000 jobs last month, a bit more than Wall Street economists had expected. Equally important, May job losses, which had initially been reported at 17,000, were sharply revised, to 70,000.

The unemployment rate, which stood at 6.1 percent in May, jumped to 6.4 percent in June.

The jobless rate has not been this high since April 1994. This was the biggest month-to-month increase in unemployment since immediately after the Sept. 11, 2001, terrorist attacks.

Some have hoped that interest rate cuts by the Federal Reserve would bring the economy out of the doldrums. The Fed has cut interest rates 13 times since 2001. Short term rates now stand at a historically low 1%. The Fed is almost out of ammunition and it is now reasonably clear that monetary policy alone has not worked.

Mr. Bush’s economic policy has consisted of back-loaded tax cuts favoring the wealthiest of Americans. That policy has helped turn budget surpluses into deficits for as far as the eye can see. We have already set a deficit record this year (the final total will exceed $400 billion after the entire Social Security surplus is consumed) and three months of the fiscal year remain. Despite the long term fiscal damage caused by Mr. Bush’s policies, those policies have done little to address current economic problems. A tax cut for the $400,000 a year crowd scheduled for 2010 does little to stimulate the economy today.

Perhaps Mr. Bush needs to rethink his economic policies. If he does not, we may yet reach a turning point. That turning point may not be in the employment numbers but rather in Mr. Bush’s political fortunes.

A Google Search

If you go to Google, type in “weapons of mass destruction” and click “I’m feeling lucky,” your search returns this. Thanks Pete for the tip.


Tomorrow is a day of birthdays. America will turn 227 tomorrow. To celebrate America’s birthday, one can do no better than to contemplate the words of Thomas Jefferson:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

Tomorrow also marks my forty-ninth birthday. To celebrate, I can only recall the words of Scout Finch in the opening lines of the tenth chapter of Harper Lee’s To Kill a Mockingbird:
Atticus was feeble. He was nearly fifty. When Jem and I asked him why he was so old, he said he got started late, which we felt reflected on his abilities and manliness.

Tuesday, July 01, 2003
Mort Zuckerman Gets Busted

Mort Zuckerman, editor in chief and publisher of U.S. News and World Report has been busted. His bust concerned a recent column (the link is to a Jewish World Review reprint of the column as the U.S. News issue has gone behind the $ firewall) in U.S. News And World Report decrying that most durable of hobby horses, frivolous lawsuits.

Two of the examples of frivolous lawsuits provided by Mr. Zuckerman are:
a woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo--a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses.

Howie Kurtz of the Washington Post busted Zuckerman for using those two examples for the simple reason that they never happened. Somebody made them up. As Kurtz writes:
Great stuff -- and, unfortunately for Zuckerman, totally bogus. Two Web sites -- StellaAwards.com and Snopes.com -- say the cases of the soda-slipping Pennsylvania woman and the window-wriggling Delaware woman are fabricated, and no public records could be found for them.

Zuckerman has plenty of company. A number of newspapers and columnists have touted the phantom cases since they surfaced in 2001 in a Canadian newspaper.

Ken Frydman, Zuckerman's spokesman, did not dispute that the pair of cases in the column two weeks ago were imaginary, but would not address whether the magazine will publish a retraction.

"These cases were reported in a variety of other reputable publications, such as the Fort Worth Star-Telegram and the London Telegraph, and Mr. Zuckerman could have cited dozens of other cases," Frydman says. "Few Americans would disagree with the proposition that there are far too many frivolous lawsuits filed."

Zuckerman choose those examples for his column because the cases, if real, are obviously ridiculous. No one could possibly think that either of the plaintiffs cited by Zuckerman deserves to be compensated in any way.

Indeed, Zuckerman is quite sure that the examples will be viewed as ridiculous by all of his readers. I wonder, then, why he thinks a jury would view the case any differently? Juries are made up from a cross section of the community. I have selected many juries. I have never had a jury that did not include at least a few people who are readers of U.S. News and World Report or similar publicatons.

I also can not help but wonder why so many examples of alleged ridiculous jury verdicts turn out to be false. Zuckerman’s spokesman contends that there were dozens of examples that could have been used. If that is true why do we so often hear about the McDonald’s coffee case (which was real but not frivolous), the mythical driver of the RV who set the cruise control and left the wheel and sued when a wreck occurred and many other bogus examples of frivolous suits. See Kip's post for a listing and a debunking of those mythical suits.

Perhaps obviously ridiculous jury verdicts providing huge judgments for undeserving plaintiffs are sort of like UFO’s. Many people know many people who claim to have seen them but it is hard to find a person who can deliver the proof.

Zuckerman becomes even more absurd when he discusses the economics of contingency fees:
The right to sue has been exploited by lawyers. They can gamble on taking cases on a contingency basis because they need only 1 win in 10 to score that big judgment that will make up for the other losses.

The only “big judgment” in a frivolous suit that he cites is the $100,000 for the lady who threw her drink and slipped in the spill. Even putting aside the fact that that story was made up, the economics are simply wrong.

It would be difficult for a lawyer, working by himself, to handle more than twenty such suits at a time. Assume first that the lawyer took all twenty such cases to trial in a year. That is a very a dubious assumption because 1) the time from filing to trial, at least in this jurisdiction, is closer to 2 years and 2) the lawyer would never get such a case before a jury as the judge would grant the defendant’s summary judgment motion. Next assume that the lawyer had a 33% contingency fee.

If the lawyer succeeded in one case in ten, he would have total revenue for the year of $67,000 out of which he would get to pay for all of the expenses of his practice. It is unlikely that such a lawyer would net $50,000 for his effort.

If the lawyer, however, could discern which of the twenty cases was the winner, he could accept that case and reject the rest. With 20 such winning cases, he would have earnings of $667,000 of which he would net more than $600,000 for the same amount of work. The contingency fee lawyer, therefore, has every incentive to make sure that each and every case he accepts is a winner.

I know of no plaintiff’s attorneys who take cases in which they estimate a 10% chance of success. A lawyer taking contingency fee cases that have a 10% chance of success is much more likely to face a bankruptcy judge than a civil jury.

The use of contingency fees arrangements gives the lawyer every incentive to only take cases that are sure winners. The only lawyers who make money from frivolous personal injury cases are lawyers for the insurance companies.

The conventional wisdom is exactly backwards with regard to contingency fees. The use of such arrangements acts as a filter to prevent frivolous cases from being filed. A lawyer being paid on a hourly rate for every hour worked on a case may be willing to take a chance with a small probability of success but a lawyer who assumes the risk of losing must be more selective.

What, you say, you do not believe me? Then try a little experiment. Call a plaintiff’s lawyer and tell him that you suffered a fractured tailbone when you slipped in a restaurant on a drink that you threw at your boyfriend. Tell him that you know the case has only a 10% chance of winning and that, if successful, the case will generate an award of $100,000. Tell the lawyer that you are unwilling to risk any of your money for the suit but that you want him to risk his time and money and that he can have 1/3 of any settlement he secures. If you are not listening to a dial tone pretty quickly I will be greatly surprised.

Next, call up a lawyer who bills by the hour. Tell him the story and add that you know the case has little chance for success but that you are willing to pay $250 per hour for every hour worked. I expect that your reception will be a bit friendlier.

Sunday, June 29, 2003
Individualized Consideration

The Supreme Court’s decisions in the University of Michigan Law School case, Grutter v. Bollinger and the undergraduate case Gratz v. Bollinger require individualized consideration of applications to public universities if race is to be considered in the admissions process.

Justice O’Connor’s majority opinion in Grutter found that the law school had a compelling interest in attaining a diverse student body and permitted consideration of race (along with many other factors) in the admissions process. The consideration of race must be “narrowly tailored” to promote the specific interest of attaining a diverse student body. The law school’s admissions policy met that requirement by using system of individualized consideration:
The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."…

To be narrowly tailored, a race-conscious admissions program cannot use a quota system--it cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." … Instead, a university may consider race or ethnicity only as a " 'plus' in a particular applicant's file," without "insulat[ing] the individual from comparison with all other candidates for the available seats."… In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight."…

That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a "plus" factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount…

The undergraduate admissions policy in Gratz with its popint system failed to pass constitutional muster because it was not an individualized screening process.

I have little doubt that a “highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” will result in far more interesting student bodies and far better schools.

When I was at Duke Law, the students with the best undergraduate grades and LSAT scores were not the best law school students nor were they the most interesting people.

Judith Sapp was my Moot Court partner (we lost in the semi finals) as well as a study partner. She is a high school drop out who did not attend college. Despite that fact, the admissions office at the Duke Law School used an individualized process and admitted her. She was one of the two or three smartest and most interesting people in the class.

Judith went on to graduate with high honors and clerk for a Circuit Court of Appeals Judge. She is now a partner at Peirce Atwood in Maine practicing in the area of intellectual property.

That is a good example of how individualized consideration should work. Duke got a brilliant student and our law school class was far more varied and interesting than if we had had just another 4.0 grinder in the class.

Justice O’Connor’s individualized consideration standard also solves a problem about which I have long wondered. In public university affirmative action programs, like the Michigan undergraduate program, that give a specified number of points for race or ethnicity, what are the criteria for determining a person’s race?

Take the category of African-American. What is the definition of an African- American? Last year when my third grader was studying Thurgood Marshall, he asked me what an African-American was. I responded saying that an American citizen whose ancestors lived in Africa is called an African-American. “That is everyone,” he replied.

He, of course, was quite correct. All Americans have ancestors who lived in Africa as all of humanity is descended from people who lived in Africa.

The problem, of course is that there is no test for African-Americanism. Race is not a biological fact but rather a social construct. The real definition of African-American is any person who identifies himself or herself as an African-American.

I kept expecting someone most would consider Caucasian to claim the 20 points on the University of Michigan application process. On exactly what basis would the applicant’s self-identified race be challenged? How recently must one’s ancestors have lived in Africa to qualify? How many of one’s ancestors to what degree of consanguinity must one have to qualify? I think that it is particularly inappropriate for governmental bodies to be making that determination. One good thing about Justice O’Connor’s opinion is that that problem has been eliminated.

One difficulty with the “individualized consideration” standard is that it will be an administrative headache. The University of Texas has about
applications. Despite the administrative burden of individualized consideration, the University of Texas already plans to use an affirmative action program that comports with Justice O’Connor’s opinion.

Public universities now have a simple choice. They can spend the resources to use “individualized consideration” with its attendant administrative headaches or they can use a mechanical admissions process to admit only those with the best grades, SAT scores and jump shots.

If they choose the latter, the overall quality of the institution and the educational experience of all students will suffer.

Today’s Tour

Andrew Northrup is unconcerned about the administration’s propensity for secrecy and for manipulation of information:
Well, I'm confident that will all work out for the best. Liberals may complain that giving so much power with no transparency to people with a track record for distorting the truth for political ends may be both unwise and unAmerican, but if we'd listened to those crybabies Osama would still be on the loose and Saddam would still have his nuclear weapons

Link via The Sideshow.

Billmon has an example of the revisionist historians of whom Mr. Bush complains. In the case Billmon cites, however, the revisionist is not actually a historian. He is a Senator and a Doctor.

Natasha of the Watch has an excellent three part series on Asperger’s Syndrome. All three parts are must reading for anyone with an interest in the spectrum. Part I, Cranky Bodies is here. Part II entitled Hey, Look it’s the … is here. Part III, A Life of Grand Obsession is here. Please read them all.