$300,000 in damages for sexual harassment case

It's always worth knowing what a civil rights case is worth, but since jury awards don't get reported in the books, the only way to know is through court decisions that pass judgment on them, usually when the losing party tries to reduce the amount. Today we have a better sense of what a reverse sexual harassment is worth.

The case is Singleton v. City of New York, decided on January 30. This summary order does not have precedential value, but that's no excuse not to read it. The plaintiff was a corrections officer. His supervisor, a woman, pursued him sexually. He rebuffed her advances, and she retaliated against him. As the Court of Appeals describes the case, "Walker made repeated sexual advances towards Singleton at work, threatened Singleton when he spurned those advances, and called and sent a letter to Singleton’s then-girlfriend—the mother of Singleton’s child—alleging in graphic terms that Singleton had been unfaithful. Singleton and his girlfriend thereafter broke up, and he became depressed at work." Singleton won the trial, and the jury awarded $1 million in pain and suffering. The trial court reduce that amount to $300,000. The City appealed, arguing that even $300,000 is too high.

The Court of Appeals says that $300,000 does not "deviate[] materially from what would be reasonable compensation" under New York law. Unfortunately, the decision does not provide any additional details about Singleton's pain and suffering, and the district court decision, published at 496 F. Supp. 2d 390 (S.D.N.Y. 2007) doesn't either.

Sixth Amendment violation too "trivial" for a new trial

You can't have closed trials under the Constitution. Closed criminal trials mean the guilty defendant gets a new trial and the conviction is vacated. The Sixth Amendment guarantees this. But life is full of gray areas, and that's what the Court of Appeals is for.

The case is Gibbons v. Savage, decided on January 28. The defendant was charged with rape, incest and endangering the welfare of a child. The victim was his 15 year-old daughter, and her mother attended jury selection. What happened next was strange. The judge decided that the courtroom was too small and that it was not a good idea to have potential jurors sitting next to the only spectator, the victim's mother. The judge said, "[A]lthough this is an open courtroom, I cannot have spectators during jury selection" and that it would "taint the entire jury pool” if he “put a relative right next to a potential juror.” The next day, with more seats available, the mother was allowed in the courtroom to observe the rest of jury selection.

Normally, closing the courtroom to the public violates the Constitution. The Court of Appeals (McLaughlin, Leval and Pooler) noted there are ways to deal with a crowded courtroom and to prevent spectators from slipping the defendant any contraband. But here's the gray area. During the closed proceedings, only two jurors were excused because they were unable to serve. The judge did speak to the potential jurors, but he said nothing controversial and lawyers for both sides were OK with his comments.


Although the Supreme Court has held that "the proceedings for the selection of the jury are an important part of the trial process," the constitutional violation here was "trivial" because the courtroom was closed for a brief period. While there is no "harmless error" analysis in resolving closed courtroom cases (insofar as the exclusion of spectators will not affect the outcome of the trial), trivial errors may not require overturning the guilty verdict if "the conduct at issue subverts the values the drafters of the Sixth Amendment sought to protect.” The mother's exclusion does not subvert those values because she would not have been able to witness the private interviews of potential jurors who were unable to serve. Those interviews would have been private even if the judge had an open courtroom since some potential jurors can speak to the judge and attorneys privately if they do not want to share certain information with the rest of the jury pool. And, the Court finds, nothing of significance happened when the mother was not in the courtroom.


This decision probably serves notice on state trial judges that's bad practice to exclude anyone from jury selection unless there is an excellent reason to do so. No judge wants a criminal conviction threatened because of a prima facie Sixth Amendment violation. Of course, reading this opinion, I am wondering who was the criminal court judge who decided to exclude the public from jury selection in a relatively routine criminal case. It happened in Orange County (where I practice law), because the Orange District Attorney's Office defended the appeal, and the old criminal courtrooms were certainly tiny and smaller than most law school moot courtrooms. As courts sometimes omit the name of the offending judge or lawyer in granting habeas petitions, the mystery judge is omitted from the opinion.

You have no right to own a Chuka Stick

A chuka stick (also known as a nunchakus) is a crude weapon that "consist[s] of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking." At least that's how the New York Penal Law defines it.

Now that you know what a chuka stick is, you should know that it's illegal to own one in New York. And that prohibition does not violate the U.S. Constitution, the Second Circuit says. The case is Maloney v. Cuomo, decided on January 28.

After Maloney plead guilty to owning a chuka stick and agreed to destroy it, he sued the Attorney General and Nassau County District Attorney on the basis that the chuka stick law violates the Second Amendment's "right to bear arms" as recently interpreted by the Supreme Court in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The Second Circuit's not buying this one. That's because Maloney's case hits a major snag, something which is probably unknown to the Second Amendment movement: the Second Amendment does not apply to the states, only to the federal government. The Supreme Court has applied much of the Bill of Rights to state action, but it never got around to applying the Second Amendment to the states. Since the Heller case involved the District of Columbia, that landmark case does not change this loophole.

The only argument left is that the ban against chuka sticks violates the Fourteenth Amendment because the prohibition is irrational. But we all know that "rational basis" arguments usually fail in federal court, and this case is no different. The Court of Appeals upholds the ban because the State Legislature had reason to believe that these weapons are extremely dangerous. While Maloney argues that he wants to use the chuka stick for martial arts, that does not prevent the Legislature from making the policy choice that the bad outweighs the good.

Supreme Court broadly interprets Title VII's "opposition clause"

The text of Title VII of the Civil Rights Act of 1964 is not that long, at least the parts that outline what's legal and what's not. Employment lawyers mostly follow the case law without actually parsing the statute, except that some portions have never been interpreted by the Supreme Court. One of those portions is the "opposition clause," at least in the context of in-house sexual harassment investigations. The Court just handed down its first interpretation.

The case is Crawford v. Metropolitan Government of Nashville, decided on January 27.

The opposition clause makes it "unlawful . . . for anemployer to discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful. . . by this subchapter." We all know the opposition clause covers the victim of employment discrimination who files an EEOC charge or speaks out against discrimination at work. In this case, the question was whether it prevents the employer from firing a witness who answers the employer's questions about sexual harassment pursuant to an in-house investigation. Under a dictionary definition of "oppose," the Supreme Court says the witness was officially "opposing" discrimination and therefore cannot be fired.

The key to this case is that although Crawford did not go out of her way to oppose the sexual harassment and she did not affirmatively oppose it, she did "oppose" the harassment simply by reporting it to management in the course of their investigation. The Court explained,

The statement Crawford says she gave to Frazier is thuscovered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on wouldcertainly qualify in the minds of reasonable jurors as "resist[ant]" or "antagonistic" to Hughes’s treatment, iffor no other reason than the point argued by the Government and explained by an EEOC guideline: "When an employee communicates to her employer a belief that theemployer has engaged in . . . a form of employment discrimination, that communication" virtually always "constitutes the employee’s opposition to the activity."

The City argued that this broad interpretation of "oppose" would make it less likely that management will root out workplace discrimination because any witnesses to the discrimination may then bring a retaliation suit if they are disciplined for some other reason afterwards. The Court is not convinced. If anything, the Court suggests, a narrow interpretation of the opposition clause would prevent management from rooting out discrimination because potential witnesses will not want to come forward with eyewitness accounts. As the Supreme Court has encouraged these investigations in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), this broader interpretation is appropriate.

Sandbagged murder defendant gets a new trial because of bogus expert witness

The Court of Appeals has granted a new trial to a man convicted of a 1981 murder after finding that the prosecutor in state court knowingly elicited false and misleading testimony from a bogus expert witness about the defendant's alleged sexual motive for fatally shooting two teenagers at a lover's lane.


The case is Drake v. Portuondo, decided on January 23. After Drake was arrested for shooting two teenage lovers, the prosecution wanted a motive to ensure his guilt at trial. There was some evidence of sexual trauma to the female victim, to the prosecutor, Broderick, contacted a guy who claimed to be an expert on a form of sexual dysfunction called picquerism which, according to the Court of Appeals, "is a purported syndrome or criminal profile in which the perpetrator realizes sexual satisfaction from penetrating a victim by sniper activity or by stab or bite wounds." The expert testified at trial that the killings were consistent with picquerism, and Drake was convicted of two counts of intentional murder.


Now Drake gets a new trial. The Court of Appeals describes the picquerism theory as "nonsense" and it has grave doubts whether picquerism qualifies a serious diagnosis, as it appears nowhere in the Diagnostic and Statistical Manual of Mental Disorders and usually only turns up in fiction. So, you may ask, couldn't Drake's defense lawyer cross examine the hell out of the "expert" on this and win the case by showing that the prosecution was overreaching? The answer is no, and that is why Drake gets a new trial.


Drake was sandbagged. His lawyer was led to believe that the prosecutor got in touch with the "expert" at the last minute and the expert testified that the case was so easy that he only had to familiarize himself with the file on the morning of trial. When defendant's lawyer wanted a continuance to find a contrary expert, the prosecutor objected, and the court denied that motion. At trial, the expert used fancy medical terms and testified that the defendant must have intended to gratify himself sexually in killing the victims. The jury bought the argument.


What Drake's lawyer did not know was that the prosecutor and expert had been communicating for a few weeks and that the expert had lied about his qualifications and greatly exaggerated his experience working in the Lost Angeles Medical Examiner's Office. The expert was a fraud, and the prosecutor knew it, the Second Circuit finds. (The prosecutor today is a criminal court judge in Niagara County, by the way).


This shocking series of events was not enough to convince a state appeals court to vacate the conviction, but hey, that's what habeas corpus petitions are for. The Second Circuit finds that the conviction was obtained through false evidence and that the prosecutor was in on the plot. In the rush to gain a conviction, the prosecutor put a total fraud on the stand to articulate a highly questionable theory of sexual deviancy as the motive for these killings. Making matters worse, the prosecutor objected when defense counsel needed more time to investigate this theory of intent and to find his own expert. While there was some evidence that Drake may have intended to kill the victims anyway, there was also evidence that it was all an accident and that he shot his gun at what he thought was a vacant car at night. The picquerism theory propounded by the false expert may have tipped the scales against Drake at trial because it supported the prosecutor's theory that Drake intended to kill the victims and was therefore guilty of murder.

Supreme Court abandons rigid qualified immunity procedure

Public officials have qualified immunity from lawsuits. That means they enjoy some, but not total, immunity from constitutional claims, on the theory that if they act in good faith they should not have to stand trial for damages claims. The Supreme Court this week clarified how exactly the federal courts should resolve immunity defenses. The case is Pearson v. Callahan, decided on January 21.

First, some background. If the state of the law is not clear when someone's constitutional rights are violated, the government actor, usually a public official or police officer, is given the benefit of the doubt. After all, if the courts are unclear as to whether a specific constitutional "right" exists, then the public official is not expected to foresee that what he is doing may be found illegal in the future. All of this stems from the fact that constitutional law is case-law driven, in that the provisions of the Bill of Rights are incrementally developed over time through court decisions.

So, in resolving a qualified immunity defense, the court has to do two things: identify the constitutional right that is relevant to the lawsuit, and then determine if that right was clearly established at the time the plaintiff's rights were violated. If the right was not clearly established, then the case is dismissed. In 2001, the Supreme Court said that courts have to first identify the constitutional right and then determine if it was clearly established when the plaintiff was aggrieved. That case was Saucier v. Katz, 533 U.S. 194 (2001). One of the rationales for this two-step procedure was that if the courts decide only that the constitutional right was not clearly-established, the courts will never get around to identifying exactly what those rights were, so that the law will never be "clearly established." If the court first decides that the plaintiff identified a legitimate constitutional right, then even if it was not clearly established as to his case, that right will be on the books and therefore clearly established for the next guy who brings a similar claim.

The Supreme Court now says that procedure is no longer mandatory. While the Court recognizes it may be a good idea from time to time for courts to first identify the existence of a constitutional right, it is not always necessary if the court is convinced that such a right was not clearly established at the time of the incident, and it may be a waste of judicial resources to identify the right in the first instance. In rejecting a procedure that it advocated only eight years ago, the Court says: "On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."

The Supreme Court in particular was listening to lower court judges who criticized the rigid two-step rule as unnecessarily forcing them to identify constitutional rights for sake of doing so only to then find that the law was not clear at the time of the events giving rise to the case. Courts are now free to follow the Saucier procedure in their discretion. The Supreme Court explains, "Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the 'clearly established' prong. '[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be.'"

Supreme Court gives one to the parents

Section 1983 is a law that allows you to recover damages for the violation of a federal right, identified either in the Constitutional or a civil rights law. A recurring question is whether you can sue under the Constitution when a specific federal statute covers the same territory. Sometimes you can, and sometimes you can't. This time around, with respect to Title IX, the equal rights statute governing public schools, the Supreme Court says you can.


The case is Fitzgerald v. Barnstable School Committee, decided on January 21. There are reasons why someone might bring a constitutional claim under Section 1983 rather than a more specific civil rights statute. Section 1983 offers you all the damages in the world, and it often carries a longer statute of limitations. That's why civil rights lawyers like Section 1983. But the Supreme Court has reigned in the scope of Section 1983 when Congress intended that the more specific civil rights statute means that a parallel constitutional lawsuit is prohibited. The Court knows this when it sees it, since Congress rarely takes time out to specifically say when a particular law preempts Section 1983.


In this case, the Court says that Title IX, which parents invoke when their children suffer gender or racial discrimination in school, is not the only way to challenge these rights violations. The Constitution, as enforced through Section 1983, is another remedy. That is because Congress did not make Title IX a comprehensive statute with all the procedures and remedies normally associated with civil rights laws that do preempt Section 1983. In other words, the Court gives one to the parents this week.


As the Court issued this opinion without dissent, the issue may look like an easy one, especially since the more conservative Justices over the years have reigned in Section 1983 by stating that various laws were sufficiently comprehensive to preempt Section 1983. But, as the Court points out, several federal Circuit Courts had gone the other way on this issue, including the Second Circuit Court of Appeals. As Justice Alito implies, then, Bruneau v. South Kortright Central School Dist., 163 F. 3d 749 (2d 1998), which restricted parents from challenging rights violations under the Constitution, is reversed on that issue.

Bouquet of dead flowers is free speech, not illegal death threat

A bouquet of dead flowers left on the desk of a government official may send an eerie message to the recipient, but it's not enough to make an arrest for menacing under New York law. Instead, the Southern District of New York holds, that arrest is illegal under the First Amendment because the dead flowers and an accompanying hostile written message represent free speech.

The case is Holley v. County of Orange, 06 Civ. 3984, decided on January 14. (The case is not yet reported). The plaintiff is a 69 year-old mother who was upset when the local court revoked her son's probation and the probation officer laughed while leaving the courtroom. So mom walked into the probation office undetected and left dead flowers on the receptionist's desk with a message for the probation department reading, "Thinking of you, your 'HELP' will be long remembered." This "eerie" and "creepy" gesture freaked out probation officer Corchran, who was afraid the leave the building alone. Plaintiff's follow-up email to a probation supervisor stated that she was sick and tired of the way that office had humiliated her family. She also said the bouquet was "serving notice" and that the "gift spoke for itself."


Holley was arrested for menacing, which makes it illegal to intentionally place another person in imminent fear of physical injury or death. Here's the problem: cases hold that laws like this require the imminent fear of injury or death, not a speculative fear. For this reason, cases cited in this opinion make it clear that the menacing law in New York is a tough law to prosecute. Since there was no probable cause that the flowers placed the "victims" in imminent fear of injury or death, her arrest violated the Fourth Amendment. The district court further held that, while Holley's gesture was "crude" and "offensive," her arrest also violated the First Amendment because it was not a "true threat" of violence, particularly since she left the office after dropping off the flowers. Instead, the court held, the bouquet and card "were neither unequivocal nor unconditional insofar as plaintiff expressed her dismay with the Department of Probation and asked for an apology." Since her rights were violated, plaintiff is entitled to damages as determined by a jury.


This case will remind government officials that irate citizens have the right to express profound dissatisfaction with official decision-making and that much of this rancor should be taken with a grain of salt. The case will remind lawyers that some criminal prosecutions are really First Amendment violations in disguise. For me, the case brings to mind a Rolling Stones classic from 1971 that I have not heard in years.

Bergstein & Ullrich prevail in disability discrimination case

Jury says Newburgh kept blind man from having job: worker awarded nearly $200,000

By Doyle Murphy
Times Herald-Record
January 18, 2009

CITY OF NEWBURGH — The city must pay nearly $200,000 to a worker who was fired after he said he couldn't see well enough to ride a garbage truck.

George Hursey of Maybrook sued the city in federal court after he lost his job with the Department of Public Works. He'd cleaned the police department for about three and half years but switched to the garbage truck in 2005 when the city fired him from his cleaning job.

Hursey, now 60, was born with retinitis pigmentosa, an eye condition that makes it hard for him to see at night and cuts his peripheral vision. The condition has gotten worse as Hursey has gotten older. He was declared legally blind in 2003 but can still drive in the daylight.

The shifts on the garbage truck started at 4 a.m. In court papers, Hursey said he couldn't see in the early morning dark and couldn't get on and off the truck without stumbling. His doctor wrote a letter that Hursey gave to his supervisor, George Garrison, that supported his claims.

The city put him on sick leave and eventually fired him because it said there were no other jobs where he could work safely. Hursey's attorneys, Stephen Bergstein and Helen Ullrich of Chester, argued the city could have put him in a general laborer's job that opened up about the same time, but the city never told him about the job and hired someone else.

A federal jury agreed with Hursey's attorneys that the city had violated the Americans with Disabilities Act. Bergstein said Hursey could have continued to work for the city had it made minor accommodations as required by the law.

"There was room for him," Bergstein said, "but the city really didn't make an effort."
He said Hursey wanted to work and has since taken a job at a ShopRite doing tasks similar to what he would have done as a general laborer for the city.

The jury found Hursey was honestly disabled but still could have done the general laborer job had the city made slight adjustments to account for his disability. The city didn't make a legitimate effort to accommodate him, the jury concluded.

In a decision delivered Friday night in White Plains, it awarded Hursey $195,763. The majority of the award is for back pay and future wages lost with $10,000 for pain and suffering.
Bergstein said his client would have liked to have continued working for the city, but he was happy with the outcome.

"He's not a man of means," Bergstein said. "He was delighted. He was just delighted."

First Amendment retaliation lawsuit is not protected speech under the Constitution

The First Amendment prohibits government employers from retaliating against employees who speak out on matters of public concern in the workplace. Not too long ago, the assumption was that merely filing a lawsuit against a public employer in Federal court was deemed First Amendment activity and that the public employer could not retaliate against the plaintiff for bringing that lawsuit, no matter what the initial lawsuit alleged.

In fact, that notion seemed self-evident, primarily because seeking redress in court seems inherently protected under the First Amendment. See, e.g., Glenview v. Bucci, 165 F. Supp. 2d 545 (S.D.N.Y. 2001) (a case that I worked on), which went even further, holding that a business which threatens to bring a state court lawsuit involving breach of contract can bring a retaliation lawsuit against a municipality which takes further adverse action against the business for making that threat.

This has changed, as reflected in a recent Southern District ruling, which applies recent Second Circuit authority. The case is Kempkes v. Marvin, 2008 WL 5330673, decided by Judge Karas on December 19, 2008. In February 2007, the plaintiff, a police officer, sued his employer, Village of Bronxville and various supervisors, alleging that they violated his due process rights by terminating his disability benefits and reducing his salary. He also alleged that the salary reduction was retaliation for expressing concerns about the police department's alleged discriminatory hiring practices as well as selective prosecution against racial minorities. He then amended the complaint to allege that defendants retaliated against him by pursuing disciplinary proceedings against him, by depriving him of disability benefits and denying health insurance coverage to his wife.

In Demember 2007, plaintiff sued the village again, this time alleging that he was terminated in retaliation for bringing the February 2007 lawsuit. That complaint is now dismissed because, Judge Karas holds, the February 2007 lawsuit was not speech on a matter of public concern but personal speech unprotected by the First Amendment. The critical factor is that the February 2007 suit sought damages that were entirely personal to plaintiff.

Dismissal is compelled by the Second Circuit's ruling, Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008), where the Court of Appeals held that the city could lawully retaliate against Ruotolo for bringing a free speech retaliation claim in connection with his public employment as a police officer. As Judge Karas notes in summarizing the Ruotolo decision, "The Ruotolo court concluded that though the plaintiff's complaint 'accuses the City of routinely tolerating the violation of whistleblower rights, and seeks punitive damages to deter ‘future illegal and retaliatory conduct,’ arguably hinting at some broader public purpose,' this was not enough to 'br[ing] within the protection of the First Amendment' 'retaliation against the airing of generally personal grievances.'” In other words, Ruotolo was making broader allegations about the City's treatment of whistleblowers, but since the lawsuit was primarily about Ruotolo, it was personal speech, not speech on matters of public concern.

Judge Karas sees no difference between this case and Ruotolo, and so this case is dismissed because Kempkes did not engage in free speech in filing the February 2007 lawsuit. Kempkes is represented by an experienced civil rights lawyer, however, who urges Judge Karas to apply Konits v. Valley Stream School District, 394 F.3d 121 (2d Cir. 2005), which held that if plaintiff's lawsuit #1 alleged job-related retaliation for testifying in favor of a co-worker in a legal proceeding, that lawsuit is protected First Amendment speech because it was not strictly personal to the plaintiff. This means, the Konits court held, that lawsuit #2 alleging retaliation for filing lawsuit #1 cannot be dismissed. "Because [the plaintiff's first] lawsuit was predicated on speech about gender discrimination against a fellow employee that directly implicated the access of the courts to truthful testimony," Id. at 125-26, Judge Karas deems Konits distinguishable from Kemkes.

Summarizing the consequences of Konits and Ruotolo, Judge Karas writes: "It is difficult to accept the notion that the filing of a lawsuit alleging retaliation for the filing of a retaliation lawsuit alleging retaliation for the filing of a retaliation lawsuit automatically constitutes speech on a matter of public concern so long as the very first lawsuit stated a claim for retaliation, where the action otherwise only vindicates a plaintiff's purely parochial interests."

Got that? The short version is that seeking redress in Federal court is not inherently protected under the First Amendment. That means that public employees can be fired for bringing lawsuits which seek damages that are unique to their own situation as opposed to lawsuits which have a broader public purpose.

Prosecutor argues that overweight jurors favor defendants

We all know that you cannot exclude a juror from trial because of his race. If a lawyer tries to exclude a black juror, any objection will fail if the lawyer articulates a race-neutral reason for excluding the juror. In this strange little case, the Court of Appeals finds that a state court criminal conviction was tainted because the prosecutor excluded an overweight black juror in the flimsy theory that overweight jurors are more sympathetic to criminal defendants.

The case is Dolphy v. Mantello, decided on January 9. After the prosecutor struck the black juror, the defendant's lawyer raised a Batson challenge, which requires the prosecutor to give a race-neutral reason for rejecting the juror. The trial judge then has to determine if the prosecutor's reason is credible. That did not happen here. As the Court of Appeals recounts the story, "The explanation given by the prosecution was that the juror was obese. The trial judge denied the Batson objection on the ground: 'I’m satisfied that is a race neutral explanation.'”

Here are the prosecutor's words, duly taken down by the court stenographer:

I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.

The defendant's lawyer then pointed out that the prosecutor had, in fact, seated overweight jurors in other cases and that some of the jurors in this very case were overweight (and white). Here is what happened next, according to the Court of Appeals: "The trial court observed that 'overweight is a subjective term,' tactfully suggested that the judge and defense counsel were both 'a little overweight' and could stand to lose a few pounds, and opined that the excluded juror was (by contrast) 'grossly overweight.'”

Can you believe this? I can, actually. Judges make jokes all the time in the courtroom. In fact, the Court of Appeals in this case throws in a joke of its own, asking rhetorically, "Which side is favored by skinny jurors?" Except that I'm not sure that the Court of Appeals is really joking. The Court may simply be telling us how absurd the trial judge was.

Few courtroom jokes represent grounds for a new trial. The Court of Appeals finds that the trial judge did not make any credibility assessment of the prosecutor's excuse and that he took the prosecutor at his word that he really did believe that overweight jurors are sympathetic to defendants. The judge is supposed to think this through, not rubber stamp the prosecutor. As the Second Circuit tells us, "While the prosecution’s proffered explanation was facially race-neutral, it rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant). Yet the trial court’s initial ruling was made without inquiry or finding, as though the ground for making the strike was self-evident: 'Very well. Strike will stand.'”

Since the trial judge took the prosecutor at his word, the criminal conviction is tainted. The trial court must now re-consider the prosecutor's excuse and if that process cannot be reconstructed, the defendant gets a new trial.

Court of Appeals clarifies when police can stop the car for a traffic violation

Under the right circumstances, the police can search the occupants of a vehicle if the driver commits a traffic violation, the Second Circuit has ruled in a case that reverses the district court's order suppressing a seized firearm.

The case is United States v. Stewart, decided on January 8. The police saw a taxi cab encroaching on a sidewalk. The stopped the cab and saw that the passenger was trying to hide something. So they made the passenger, Stewart, exit the car. That's when he told the police, "Take it easy, officers; I only have a little thirty-eight." That "little 38" allows the Court of Appeals to clarify the law on traffic stops and searches under the Fourth Amendment.

The question is whether the police needed "probable cause" or "reasonable suspicion" to stop the car. The trial court held that the police had no right to search the car because they did not have reasonable suspicion that criminal activity was afoot, as "a traffic violation for infringing on an intersection does not qualify as 'criminal activity."

The Court of Appeals disagrees. The Court notes that "We have held repeatedly that a traffic stop based on a reasonable suspicion of a traffic violation comports with the Fourth Amendment." Federal courts around the country agree, but defendant's lawyer finds a case from the Sixth Circuit which arguably suggests that probable cause and not merely reasonable suspicion of a traffic violation is necessary to stop (and if necessary) search the car. This distinction may sound insignificant to non-lawyers, but in the world of criminal defense, it's a world of difference, as probable cause is the harder standard for the police to meet. Declining to follow the Sixth Circuit, the Second Circuit holds firm to its rule that reasonable suspicion of a traffic violation is enough for the police to make a traffic stop.

This is bad news for defendant Stewart. After he was freed up by the trial court upon winning the suppression hearing, the trial court has to hold another hearing under the legal standard set forth by the Court of Appeals. For the government to win the suppression hearing and use the gun at trial against the defendant, the police have to show that they merely had reasonable suspicion that the cab committed a traffic violation.