Author Archive for melissa-waters
Trial by Stealth
posted by Melissa Waters
This month’s ABA Journal Report has an amusing article regarding the growing problem of so-called “stealth jurors” — jurors who “lie on questionnaires and during voir dire to land seats on high-profile cases for bragging rights.” A jury consultant quoted in the article estimates that roughly 15 to 18 percent of today’s jurors view jury service not as a civic responsibility, but as “a way to comment on or influence the outcomes of trials.”
I thought these concerns might be a bit overblown, until post-exam-writing insomnia had me up at 3 a.m. last night doing an Amazon search on the subject. Turns out that someone has written a book entitled, appropriately enough, “Stealth Juror: The Ultimate Defense Against Bad Laws and Government Tyranny.” According to the author, “A stealth juror is an ordinary citizen serving on a jury who understands and is not afraid to exercise his right to judge not only the evidence in a case but the very law upon which the prosecution is based. If the law is bad or unfair, he secretly works to acquit any defendant being persecuted for a nonviolent, victimless crime. He must remain undercover because he represents a direct threat to the power of judges and prosecutors. He is the last champion of justice in the American courtroom.” The book promises to teach its readers “exactly how to become a stealth juror, including how to get yourself seated on a jury where you can do the most good for just causes (from preserving gun rights to opposing the War on Drugs), recognize and avoid the games that lawyers and judges use to manipulate the outcome of a case, secretly win over your fellow jurors in the deliberation room and much more.”
Hmm … I’m not sure this is exactly what Henry Fonda had in mind.
The ABA article points out that the “stealth juror” problem is exacerbated by the way in which voir dire is typically conducted: Potential jurors who might be biased against a particular defendant, for example, may be reluctant to speak up about their prejudices in an open courtroom, with tens or even hundreds of spectators watching.
Of course, sometimes the biases revealed during voir dire cut the other way. My father, a federal judge for twenty years in Arkansas, once conducted a criminal trial of a county judge who had been accused of buying up votes to win his election. At the beginning of voir dire, the judge informed the potential jurors of the charges against the defendant. A woman in the back row immediately stood up, hands on hips and full of indignation, and said, “Well, I guess you don’t want me, then. My husband and I always sell our votes. We get three dollars a piece for ‘em – five if it’s a close race.” The judge, without missing a beat, replied, “No ma’am, I don’t think we’ll be needing you today. Thank you for your service to the community.”
But those were 1980s dollars – I’m sure the price of a vote in Arkansas has gone up considerably since then.
April 26, 2006 at 8:07 pm
Posted in: Uncategorized
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Looking Out Over the Crowd: A Moderate’s Take
posted by Melissa Waters
In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:
First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.
Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?
April 24, 2006 at 3:23 pm
Posted in: International & Comparative Law, Supreme Court
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If you’re watching television tonight …
posted by Melissa Waters
Check out “The Armenian Genocide,” a PBS documentary that tells the sad story of the slaughter of over a million Armenians by the Ottoman Empire during and just after World War I. Read the New York Times’ review of the documentary here.
Genocide is much in the news of late: Justice Kennedy devoted his entire keynote speech at the Annual Meeting of the American Society of International Law to the issue (see my previous post here), and genocide charges are pending against Saddam Hussein for the mass slaughter of Kurds during the 1980s. The PBS documentary reminds us that the crime of genocide has a long and painful history, one that pre-dates the 1943 coining of the term “genocide”. (For those who are interested in the issue, there’s no better reference than Samantha Power’s Pulitzer prize-winning book, “A Problem from Hell: America and the Age of Genocide.)
Amazingly, the Armenian genocide is still the subject of tremendous controversy a hundred years after it took place — the government of Turkey resolutely refuses to admit that it occurred, even at the risk of jeopardizing its entry into the European Union. Apparently PBS’s treatment of the issue is also not immune from the controversy: According to the New York Times, many PBS stations (bowing to lobbying efforts by Armenian groups and some U.S. Congressmen) have pulled a panel discussion that was to air after the documentary, in which two “experts” were to defend Turkey’s position that the genocide never occurred.
Why should you care about a “forgotten” genocide that occurred almost a hundred years ago? Here’s one reason: Many argue that the Armenian genocide – and the world’s failure to stop (or even to condemn) it – served as a source of inspiration for the policies of Adolf Hitler. He famously said:
I have placed my death-head formations in readiness, with orders to them to send to death mercilessly and without compassion, men, women, and children of Polish derivation and language. Only thus shall we gain the living space which we need. Who, after all, speaks today of the annihilation of the Armenians?
Kudos to PBS for proving Hitler wrong. The show airs tonight on PBS, at 9 p.m. EST.
April 18, 2006 at 12:17 pm
Posted in: International & Comparative Law
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Reading Justice Kennedy’s Tea Leaves
posted by Melissa Waters
Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.
All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?
What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?
April 13, 2006 at 11:05 pm
Posted in: International & Comparative Law, Supreme Court
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A shout out to my home state
posted by Melissa Waters
First, thanks to all the folks at Concurring Opinions for the invitation. I’ll no doubt be a pale substitute for my W&L colleague David Zaring and other illustrious alums of ConOp — but I’ll do my best to keep the random insights on a thousand different topics (which is what sets ConOp apart from its fellow blogs, no?) coming.
It’ll come as no surprise to those who know me well that I begin my sojourn through the blogosphere with a little news item from my beloved home state of Arkansas. (Plenty of time to brag about my scholarship (um, I mean dialogically engage with like-minded scholars about topics of mutual interest) in later posts. . . .)
Seems that Arkansas is about to become the first state in the country to ban smoking in cars where children under the age of 6 are along for the ride. The bill was passed by an overwhelmingly Democratic legislature, and our Republican-possible-Presidential-contender-health-nut governor Mike Huckabee says he intends to sign it into law. Progressivism and bipartisanship at its best — folks in Washington, take a page from the Razorback playbook. And Arkansawyers everywhere, say it with me … whoo pig sooie!
(To my fellow former Judge Buzz clerks out there (Nate? Geoff?), am I wrong? What would our “old dad” say on this one?)
April 11, 2006 at 7:08 pm
Posted in: Current Events
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