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Shall we start burning iPhones and Blackberrys? Or just jurors?

April 18, 2009

The issue is not about iPhones and Blackberrys, the issue is that judges cannot unring a bell with an instruction and the remedy is that when someone violates a court order, they should be held in contempt. Maybe then trials will become more than dog and pony shows.

I am shamefully late chiming in on the “shocking” news of trials from Miami to New Jersey being derailed by jurors using new-fangled gadgets called “iPhones” and “BlackBerrys,” so singular they have their own acronym–PDAs. Smart phones. Hmmmm.

I didn’t even know where to begin on this one. I was disappointed, albeit amused, by suggestions that PDAs be banned from courthouses. Uh–it was not the iPhone that did it, it was the juror. And the news gets worse because guess what? The juror will have the iPhone in the car on the lunch break, in addition to unlimited access to the news and internet at home when he or she isn’t posting tweets from the jury box. Banning iPhones from courthouses is akin to offering a band-aid to someone falling from a 30 story building. Thoughtful, but inadequate.

I was hoping the digital slap to the criminal justice system would provoke a more meaningful debate, perhaps addressing the 30 story fall instead of a shout-out to Johnson & Johnson. Potentially addressing the realities we all know about how attorneys will, for example, inquire regarding the results of a witness’s lie detector test knowing the answer is inadmissible but, asking the question nonetheless knowing the power of suggestion.

The ultimate downfall of the trial by jury system is that trials are only about the orderly and unbiased presentation of evidence in theory. In practice, trials are about innuendo, disingenuous suggestion, and each side pushing the line as far as it can until the judge tolls the unringing of the bell. It’s frightening that the justice system continues entertaining the delusion that jurors are too stupid to recognize this reality (and so turn to the internet to ascertain the answers to the lingering unanswered questions). Time and again, lawyers’ downfall is the toxic cocktail of ignorance and arrogance.

Here’s a perfect illustration of the problem: During Michael Tarkoff’s money laundering trial, Judge Lenard excluded all evidence establishing that Ismael Arnaiz had legitimate fishing businesses in Venezuela. Consequently, Michael was barred from testifying regarding his personal knowledge of those legitimate businesses (and therefore legitimate income) (as were other attorneys who could corroborate that Michael knew Ismael had legitimate fishing businesses). Assistant United States Attorney Alex Unguerilla asserted in his closing arguments that the money at issue had to be from medicare fraud (and therefore laundered) because Michael could not point to any evidence establishing that Ismael had a single legitimate business. Seriously. That was his closing argument and the biggest issue on appeal, but you would never know from anything you read about the case. Probably because it was an acceptable “misstep” because Judge Lenard admonished the jury to ignore those comments. In that instance, the simple admonishment sufficed, so why not offer the same admonishment to jurors who use iPhones and Blackberrys, to wit:

It has come to the court’s attention that certain jurors have been reading about this case on
That is not evidence but is someone’s opinion. Much like all the testimony you’ve heard here has been opinion evidence, but you shouldn’t listen to that opinion evidence because it’s obviously biased, while the opinion evidence we presented appeared more neutral (even though it really wasn’t).
So ignore the obviously biased opinion evidence and focus on what has been presented to you here, ignoring that which I told you not to consider in making your decision when the people pretending to be unbiased said things they knew they were not supposed to say (a lot of which wasn’t even true).
Follow all these instructions on how to classify evidence and follow the law in deciding the case, and let’s proceed to verdict.

How shocking does evidence before a jury that has not been properly admitted have to be before the criminal justice system will recognize that it cannot unring a bell?

When I read about the PDA debacle occurring in court rooms everywhere, I thought there might finally be a meaningful debate about how trials are conducted and evidence presented. The jurors’/contemnors conduct was no more egregious than Alex Unguerilla’s closing argument–sadly, and most telling, is that the jurors’ conduct shocked the judges, while Alex Unguerilla’s did not. Consequently, the other defendants actually received a meaningful remedy for contemptuous conduct resulting in improper evidence being before the jury. But what about people like Michael?

Giving the system a break for a moment, let’s turn the to jurors themselves, for they, too, took an oath. Federal trials are expensive, traumatizing, and a general nightmare. I am the first to encourage jurors to avoid the invitation to check their brain behind the barrister, for juror duty is a grave undertaking and a responsibility of citizenship. If a man sitting in a towering oak enclave surrounded by men with guns and whispering clerks is not enough to intimidate someone into following the judge’s direct and explicit orders–disobedience from which will (and should) lead to a contempt citation–then certainly the awesomeness of what is at stake–a fellow citizen’s freedom–should be motivation enough to play along with the rules, imperfect as they may be. For people unwilling to do that, my remedy is simple, let them take their iPhone with them to a jail cell for a couple weeks so they can read what the press has to say about them and get a first-hand lesson in untold stories. Alex Anguerilla and other attorneys deserve the same fate, if not worse.

The issue is not about iPhones and Blackberrys, the issue is that judges cannot unring a bell with an instruction and the remedy is that when someone violates a court order, they should be held in contempt. Maybe then trials will become more than dog and pony shows.

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