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Thursday, October 20, 2011

Harry’s Law: Is Advocating For Jury Nullification a Crime?

When I watched the season premiere of Harry’s Law, “Hosanna Roseana,” I was skeptical. The evil prosecutor, played by the wonderful Jean Smart, decided our hero, Harriet (the excellent Kathy Bates) was too formidable an opponent. Harry had previously advocated in the courtroom for jury nullification, that is, the concept that a jury should ignore a law it doesn’t like and refuse to apply it to the case at hand. A jury, of course, is sworn to uphold the law. It’s a controversial subject.

SPOILER ALERT! Don't read if you haven't seen the episode.

The prosecutor had Harry arrested for jury tampering. She said that advocating for jury nullification is illegal. I’m thinking, what a crock! Free speech and blah-di-blah. But I was wrong. There have been people actually prosecuted for advocating jury nullification. 

In the most famous recent case, a professor was handing out pamphlets on the courthouse steps to prospective jurors as they walked into the courthouse, telling them they have the right to jury nullification. This peeved the prosecutors who think juries should uphold the law even if they think it is stupid, or that it would be unjust to apply the law in a particular case. So they slapped the professor in handcuffs. He was convicted and the appeals have commenced.

Other jury nullification advocates have been prosecuted for jury tampering. Courts in Alaska and Wisconsin have found that handing pamphlets to jurors is not protected free speech. In Florida, an injunction against pamphleteers was upheld.

Now, let’s go back to Harry’s Law and whether an attorney who advocates for nullification in the courtroom in front of the judge and jury can be convicted of jury tampering. The answer is, probably not. The federal law says, “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member” commits jury tampering. But the tampering laws generally apply to conduct outside the courtroom and outside the scope of the trial. If the lawyer for the defendant advocates nullification, the judge can hold the lawyer in contempt, instruct the jury to ignore the comments, or even declare a mistrial. But it’s unlikely that the lawyer would be charged with a crime. And the writers got this right too, because in the second episode the judge reamed the prosecutor for having Harry arrested and told her to cut it out.

Getting cutting-edge issues right is one of the reasons why I enjoy watching Harry’s Law. Season 2 is, at least so far, safe for lawyers to watch. Kudos to the writers who did their research.

Thursday, October 13, 2011

The Closer Is A Good Example, Except When They're Not

I'm so sorry to have seen the final episode of The Closer this season. I love this show. One of the reasons is that they get the law mostly right. In the summer finale, Fresh Pursuit, they have a scene with an excellent representation of a summary judgment argument. Brenda is a defendant in a suit, along with her department and many others. The judge gets the standard for summary judgment right: they have to show there are no disputed facts, and that under those undisputed facts they're entitled to judgment as a matter of law.

The lawyers make arguments that I found sensible and within the scope of a summary judgment argument. Even the plaintiff's lawyer arguing for a continuance based on newly discovered evidence made sense. It was a legitimate argument to make.

My only beef came at the end. The plaintiff's lawyer demands a meeting with Brenda alone in a conference room after the case is over. Then he threatens her, insults her, and says he's filing another suit against her. He knows she's represented by counsel. There's no way Brenda would have gone into that room. She has more sense than that. It was ridiculous. I hope her lawyer files a complaint with the judge and that Brenda files a complaint with the Bar. He needs to be disqualified from handling the case, or at least sanctioned severely.

The rules are clear. If a lawyer knows a party is represented, he can't communicate with them outside their lawyer's presence unless they have permission from their lawyer. The fix would have been easy. He came during a celebration over the case. He could have asked her lawyer and he might have, in a moment of celebratory negligence, said, "Sure, knock yourself out." He wouldn't have, but it would have been better than this. They could also have had the scene with her lawyer and her present, say, outside the station after the celebration. I hope they don't make more mistakes like this next season. It's one of the few shows lawyers can safely watch.

Thursday, October 6, 2011

Chinese Walls and Other Idiocy on Suits

This will be my final rant about the last few episodes of Suits this season. Hopefully they'll get it together and I can use them as a good example again next season.

Harvey has to figure out how to divide a tabloid tycoon's multi-million dollar estate between his two daughters who happen to hate each other. Jessica, the firm boss, places Louis, Harvey's arch-nemesis, in charge of one daughter and Harvey of the other. Louis and Harvey will be pitted against each other in dividing the assets.They say there will be a "Chinese Wall" and they won't share info with each other. Then they sneak around spying, backstabbing, lying and tricking each other in a game they play against each other to see who will "win."

Hello? The firm represents both clients. That means the firm has to act in both clients' best interests. It's obvious they cannot. If they can't, then they are disqualified from representing both clients. The courts and the Bars don't let the "Chinese Wall" concept fly.

This episode was a travesty. Sure, it was funny watching the guys with their antics, but it couldn't happen in real life, at least not ethically. The writers either needed to acknowledge that the lawyers were totally off track ethically and that they could be disbarred for it, or they needed to do something else. The writers should have had the firm get both of these clients represented by independent counsel. Then they could act on behalf of the estate.They could still show Harvey and Louis bickering about who should get what, but it would have been funnier watching them have to act as neutrals in front of the two lawyers representing the daughters and pretend they wanted a fair division.

The way it turned out, the daughter who "lost" should sue the pants off the firm. The failure to share vital information was malpractice.