Daily Archives: June 5, 2012

Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research

Lawyers may research potential and sitting jurors on Facebook and other social media sites, but communications with jurors should be avoided, according to a new ethics opinion.

The opinion by the New York City Bar Association’s Committee on Professional Ethics notes that it’s not always easy to discern whether a visit to a website will result in a communication.

The opinion says it is unethical for lawyers or those working on their behalf to make juror friend requests, a finding that is in accord with a recent opinion by New York County Lawyers’ Association. But the City Bar opinion sets out to address a broader issue: what constitutes a prohibited ex parte communication with a juror.

According to the opinion, the ban on communication is violated not only through friend requests, but also when the lawyer is aware that his or her review of the juror’s comments, pages or posts will be disclosed to the juror. In addition, a violation might occur even if the communication to the juror is inadvertent or unintended.

“In the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk,” the opinion says. “For example, if an attorney views a juror’s social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile—even if the attorney has not requested the sending of that message or is entirely unaware of it—the attorney has arguably ‘communicated’ with the juror.”

Although the relevant rule appears to bar even inadvertent communication, the ethics committee takes no position on whether such a communication would in fact be a violation. “Rather, the committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research,” the opinion says. “If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation.”

Any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court, the opinion says. The bar’s 44th Street Blog has a summary.

via Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research – News – ABA Journal.

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Further Prop. 8 review denied by court of appeals

The Ninth Circuit Court refused on Tuesday to reconsider the decision in February striking down California’s Proposition 8, the voter-approved ban on same-sex marriages in the state.  The Court, however, put the case on hold for at least 90 days to allow the proponents of the ballot measure to seek to appeal to the Supreme Court.  The denial came over the dissents of three judges, who called this a “momentous case” and argued that the divided decision of a three-judge panel had resulted from a “gross misapplication” of a key Supreme Court ruling on gay rights.  One other judge dissented, but did not join the three in their objection.  The combination of orders and separate opinions can be read here.

The ruling will set the stage for a major test in the Supreme Court, although the panel ruling is a narrow one that explicitly avoided deciding whether gays and lesbians have a constitutional right to get married.  The two judges who were in the majority in ruling against Proposition 8 briefly defended the narrowness of their decision in a concurring opinion Tuesday.

After the panel decision, the supporters of the measure had asked the full Circuit Court to reconsider the case en banc.  At the request of an unidentified judge, a vote was taken among the 25 judges eligible to vote on the question, and a majority of 13 would have been required to grant such review.  The final vote thus appeared to be 21-4, because the dissenting member of the panel favored en banc review, but did not join the dissenting opinion by three other judges.

via Further Prop. 8 review denied by court of appeals (FINAL UPDATE) : SCOTUSblog.

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8th Circuit Tosses 19 Contempt Citations for Defendant Who Refused to Stand for Judge

A federal appeals court has ordered a judge to consider the religious rights of a defendant who claimed her Muslim religion prevented her from standing at the opening and close of court sessions.

The St. Louis-based 8th U.S. Circuit Court of Appeals ordered Chief U.S. District Judge Michael Davis of Minneapolis to reconsider 19 out of 20 contempt sanctions against Amina Farah Ali, report the Associated Press and the Minneapolis Star Tribune. The court said Ali’s religion claim should be evaluated under the Religious Freedom Restoration Act.

Davis had sentenced Amina Farah Ali to 100 days in jail for the 20 times she refused to rise over a two-day period in October 2011. Ali, who was accused of providing money to a terrorist group, is a Muslim who cited religious reasons for her refusal. Her lawyer had explained to the judge that Ali believes “she should not rise for persons when she does not rise for the prophet.”

The court said one contempt charge may stand because Ali remained seated one time without challenging a written order to follow court decorum. The other 19 contempt citations were based on conduct after Ali’s lawyer objected to the order.

Ali spent two days in jail. She relented and was released after three clerics who visited her advised she could stand for the court if she was “in a difficult situation, if [she was] fearful of [her] own life,” the 8th Circuit opinion (PDF) says.

The judge had evaluated Ali’s claim under the First Amendment without considering RFRA, the 8th Circuit said. The law requires the judge to consider whether his order directing Ali to stand was the least restrictive means of furthering a compelling government interest, according to the opinion.

The fact that Ali’s beliefs weren’t uniformly held by Muslims isn’t relevant, the appeals court said. “The [trial] court noted that Ali’s interpretation of Islamic doctrine was inconsistent with the interpretations of her co-defendant, the Muslim spectators in the courtroom, and the Muslim clerics who came to speak with her,” the appeals court said. “While these may be appropriate considerations in a First Amendment analysis of whether a practice is fundamental to a particular religion, … such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Ali was convicted of providing material support to a known terrorist group. She had contended she didn’t know she was raising money for a terrorist group and intended only to benefit needy people in her native Somalia.

via 8th Circuit Tosses 19 Contempt Citations for Defendant Who Refused to Stand for Judge – News – ABA Journal.

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