Law and Magic Blog

11th Circuit: Jurors May Consider Only Evidence Presented at Trial, Not Divine Revelations

In U. S. v. Brown, the 11th Circuit has held that the lower court did not abuse its discretion when it excused a juror and replaced him with an alternate when it discovered that the juror had, at the beginning of deliberations, told the other jurors that "[t]he Holy Spirit told [him]" that Brown was not guilty on all counts." Another juror informed the judge of these remarks and the judge spoke to the juror as well as the affected parties.

Based on Juror 13's responses and demeanor, the district court concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence presented at trial but that, despite his best intentions, Juror 13 would instead arrive at a verdict based on his perceived divine revelation, uninformed by the actual evidence. For this reason, the district court dismissed Juror 13 from the jury.

The 11th Circuit noted:

Here, the district court became aware that during deliberations, Juror 13 in Defendant-Appellant Corrine Brown's trial made remarks suggesting he might not base his verdict on the evidence adduced at trial. Specifically, Juror 13 informed the other jurors at the outset of deliberations that "[t]he Holy Spirit told [him]" that Brown was not guilty on all counts. The district court questioned Juror 13 for a while, in the presence of the parties, to ascertain whether Juror 13 meant that he had prayed to the Holy Spirit for guidance and wisdom in reaching a verdict based on the evidence—which would not run afoul of the court's instructions to return a verdict based on the evidence—or whether he meant instead that he believed the Holy Spirit had "told" him to return a certain verdict irrespective of what the evidence showed—which would violate the court's instructions. Based on Juror 13's responses and demeanor, the district court concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence presented at trial but that, despite his best intentions, Juror 13 would instead arrive at a verdict based on his perceived divine revelation, uninformed by the actual evidence. For this reason, the district court dismissed Juror 13 from the jury. We find no clear error in the district court's factual findings. And for that reason, the district court certainly did not abuse its discretion in dismissing Juror 13 from the jury. To hold otherwise would undermine our system of justice by allowing jurors to return verdicts based not on the evidence or law, but instead on a juror's perceived divine revelation, irrespective of the evidence. Though here, the juror's perceived divine revelation might have worked in the criminal defendant's favor had the district court not learned of it mid-deliberations, a contrary holding would allow criminal defendants to be convicted based on a divine revelation divorced from the evidence, rather than the evidence presented at trial—a troubling result, to say the least. And regardless of whether it works in favor of or against the defendant, a rule that would allow a juror to base his verdict on something other than the evidence would be antithetical to the rule of law and is contradicted by decades of precedent. Brown also raises a challenge to the forfeiture order the district court entered.

"Was it something that he said? [Or] Are the voices in your head calling..."

Magical Availments and California Code of Civil Procedure § 410.50

Via my friend Ken Trombly, this 2016 case in the civil procedure area, involving dueling magicians:

 

Calvert v. Wolf, 2016 WL 396520 (not officially published), Court of Appeal, First District, Division 3, California, filed Jan. 29, 2016.  In this case, professional magicians John and Tammy Calvert  entered into an agreement with Randall Wolf, an Ohio surgeon, to sell Dr. Wolf the Calverts' show, "Magicarama." As part of the agreement, the Calverts also agreed to teach Dr. Wolf the illusions associated with the show, and contemplated that California might be where the training might take place.

In May, 2013, the Calverts filed a complaint against Wolf, alleging breach of contract among other things. They said they had not only delivered the show (in 2008), but had taught him (and his family) the tricks necessary at the Magic Castle on three separate occasions. Wolf "quash the service of summons on the grounds the court lacks personal jurisdiction over Wolf and, alternatively, California is an inconvenient forum. In a supporting declaration, Wolf stated he has never done business in California and he owns no real or personal property in California." 

The argument in this case is over whether Randall Wolf has minimum contacts with the state of California sufficient that he should expect that a California court would agree to hear a dispute that involves him, like this breach of contract case.  The trial court agreed with him that he should not, ruling that "[The Calverts] . . . only showed a one-time purchase of a magic show and three trips to California for training purposes. This is a one-time transaction, and not on-going business dealings.'" 

But the appellate court found differently. "Based on the principles described above, California may exercise jurisdiction over Wolf only if the evidence shows (1) he purposefully availed himself of the benefits of the state, (2) the controversy is related to or arises out of Wolf's contacts with California, and (3) assertion of personal jurisdiction would not offend notions of fair play and substantial justice. (See Pavlovich, supra, 29 Cal.4th at p. 269.) We conclude specific jurisdiction exists in this case."

First, the court found that Wolf had purposefully availed himself of "the privilege of conducting activities within California by voluntarily traveling to the Magic Castle...". Further, the Calvert v. Wolf lawsuit was based "on a contract which had substantial connection with the state...".  

Next, the court noted that California has "adopted a 'substantial connection' test" which allows a court to determine that it can find minimum contacts if there is a substantial connection between the defendant's activities in the forum and the plaintiff's claim (Wolf's visits and his training in the illusions necessary to operate the magic show). 

Finally, the court examined whether the plaintiffs' request that the court assert jurisdiction was fair to the parties. "The evidence shows Wolf voluntarily came to California on at least three occasions to learn Magicarama. Further, he sought membership with the Magic Castle, which is located in California. These facts do not suggest it would be unfair or unreasonable for a California court to exercise jurisdiction over Wolf in a lawsuit related to the purchase of Magicarama. Therefore, we conclude Wolf is subject to specific jurisdiction in California."

NB: Mr. Calvert passed away in September 2013 at the age of 102.

Interestingly, John Rutherford Browne, III, attorney for the Calverts, is Past International President and present Legal Advisor of the International Brotherhood of Magicians. As "Fumblefingers the Astonishing," he is known (according to his bio) as one of California's least annoying magicians. 

 

 

 

 

Civil Procedure Magic

Brooke D. Coleman, Seattle University School of Law, has published Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms. Here is the abstract.

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof — after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.

 

Download the essay from SSRN at the link.

Court 1, Vampire 0

The Fifth Circuit has dismissed an inmate's appeal against a district court's ruling that his complaint against the warden, Dawn Grounds, and others in charge of the prison in which he is incarcerated is without merit. Apparently Courtney Royal, self-described "Vampsh Black Sheep League of Doom Gardamun Family Circle Master Vampire High Priest," believes that he cannot practice his religious (vampire) rituals in jail as constitutionally protected under the First Amendment. At least, that's what I, and Robyn Kagan of Findlaw, get out of his filing.

Says the court, in part:

Royal asserts, without further explanation, that he intends to raise on appeal issues involving summary judgment; religious items, food diets, and service; spirit advisor; black Bible; and "rugs, rode, [and] beads." He does not address the district court's certification that his appeal was not taken in good faith, nor does he address any of the district court's reasons for its certification decision. ... Accordingly, his challenge to the district court's certification decision is deemed abandoned. 

The court furthers warns Mr. Royal that three attempts to file this kind of action constitutes a waste of a court's time. "Royal is cautioned that if he accumulates three strikes under [Sec]1915(g) he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury." The case is Royal v. Grounds et al., 2012 U.S. App. LEXIS 11478.

So, no Grounds for appeal. (One of the other named defendants goes by the name of Pierce, but I'll skip the obvious pun that comes to mind). Does all this mean Mr. Royal failed to stake a claim?

 

The Illusory Right To Appeal In the New York Court of Appeals

In a new article, Meredith R. Miller argues that the New York Court of Appeals (the state's highest court) has become too comfortable in rejecting those cases that come before it on appeal "as of right" because it uses a "substantiality" requirement: it mandates that those cases present some "substantial" constitutional issue that the appellate court should hear. As a result, every year numerous litigants find themselves without a remedy that, she says, may actually exist.

The Court's magic wand thus waves away not simply those cases that might indeed might simply frivolous, but also those that present genuine issues needing to be decided.

Meredith R. Miller, Touro College, Jacob D. Fuchsberg Law Center, has published An Illusory Right to Appeal: Substantial Constitutional Questions at the New York Court of Appeals in volume 31 of the Pace Law Review (2011). Here is the abstract.

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion it did not have on an appeal as of right.

The Court’s civil jurisdiction generally covers two types of cases: (1) those the Court hears “as of right” pursuant to Civil Practice Law Rules (“CPLR”) 5601 and (2) those for which the Court has granted permission to appeal pursuant to CPLR 5602. In Kachalsky, Judge Smith opined that the definition of “substantiality” had become “so flexible” that it, in effect, conferred on the Court “discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602.”

In Kachalsky, Judge Smith pointed to a problematic policy. The Court’s practice of requiring that an appeal as of right pursuant to CPLR 5601(b) raise a “substantial” constitutional question is not loyal to the explicit text of the CPLR or the New York State Constitution. Indeed, to the extent that the requirement invokes discretion for the Court to determine which appeals on constitutional grounds to retain, it subverts the basic structure of both the CPLR and the State Constitution, which contemplate appeals as of right as distinct from appeals that necessitate permission from the Court.

The justification for the requirement of “substantiality” is to prevent the creativity of counsel in contriving constitutional questions to gain the right to appeal. However, based upon review of nearly 200 decisions appealed from and dismissed sua sponte on the ground that “no substantial question was directly involved,” this Article argues that the concern about frivolous constitutional claims is overstated. Moreover, existing limitations on appealability and reviewability serve to hinder counsel from inventing frivolous constitutional questions for the sake of an appeal. Thus, this Article proposes the elimination of the “substantiality” requirement, which renders illusory the “right” to appeal on constitutional grounds.

Download the article from SSRN at the link.