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Panic Street Lawyer: How SCOTUS works

Sunday, 30 June 2013 06:00 AM Written by

20120401wap supremecourtAtop 150A few days before I came up with the ending for last week’s Panic Street Lawyer, I received a very thoughtful gift in the mail. It was the third printing of “How Music Works,” the eighth book written by David Byrne. The gift arrived in time to stop me from using yet another song title – such as this one -- for today’s PSL title.

Byrne is best known as a musician, specifically as the singer/songwriter/guitarist for the band Talking Heads. That band formed in 1975 and made eight studio albums, the last one in 1988. Talking Heads last toured as a live act in the U.S. in 1983 (their August 13 performance at what was then called the Stanley Theater was a truly memorable one). From that tour in support of their “Speaking in Tongues” album came the critically acclaimed documentary film Stop Making Sense. All 4 members last performed together at their 2002 Rock and Roll Hall of Fame induction ceremony.

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20130628 sentencing photocom77005540 150A little more than 10 years ago, U.S. Supreme Court Justice Stephen Breyer wrote a concurring opinion in Harris v. United States holding that the Court’s landmark decision in Apprendi v. New Jersey did not apply to the imposition of the minimum portion of a mandatory sentence. Apprendi found that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury.

Last week, Justice Breyer changed his mind. Breyer joined with Justice Clarence Thomas and thee colleagues in Alleyne v. United States  and found that there should be no difference between facts supporting an increase in the maximum sentence and facts supporting the increase in a minimum sentence. Both required jury findings, he said.

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20130616 gaslandtwologo 150Last week’s Panic Street Lawyer began with a song title from the band The National but turned into a preview of a movie about fluid drinking and hydraulic fracturing. Lest you think that my use of the word “swallow” in the headline of a column on these topics is unique, think again.

I ended last week with a “teaser” about this week’s column: Part II would be about the public advocacy surrounding Gasland Part II, which debuts on HBO July 8. There was an advance screening of the documentary film Thursday evening here at Soldiers and Sailors Memorial Hall, the final stop on a U.S. tour by writer/director/cast member Josh Fox.

If I were to tie in today’s PSL with music, there is one obvious choice: not a song’s title or meaning, but an act’s name. They are two brothers from Surrey, England, whose “brilliant” first studio album of electronic music, Settle, was released on May 31. That album debuted at number 1 on the U.K. Album Chart. Sadly, the duo’s October 2013 U.S. tour does not include a stop in Pittsburgh. Their name: Disclosure.

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201130621wap raykrone2002 150At least 24 men convicted or charged with murder, or rape, based on bite marks on the flesh of victims have been exonerated since 2000, many after spending considerable time in prison.

A small, mostly ungoverned, group of dentists carries out bite mark analysis, and the findings are often key evidence in prosecutions -- even though there is no scientific proof that teeth can be matched definitively to a bite into human skin.

The FBI doesn't use it, and the American Dental Association does not recognize it.

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20121224 pasupremecourtlogo 150The PG's Paula Reed Ward reports on the Pennsylvania Supreme Court's rejection of a legal challenge to the Commonwealth's mandatory retirement age for judges, stating the proper way to change it is through state constitutional amendment:

"The mandatory retirement age was written into Pennsylvania law as part of the 1967-68 constitutional convention, and under the law can only be changed with legislation being passed in two consecutive sessions to be followed by a statewide referendum."

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20130616wap thenational 150Tuesday’s concert by the National at Stage AE was described (correctly, in my opinion) as “glorious” by one music blogger and “extremely powerful” by another. And, no, my endorsement of those favorable reviews has nothing to do with the “Bona Drag was still on” line that they wrote into “Pink Rabbits,” one of the songs they performed in Pittsburgh off of “Trouble Will Find Me,” the band’s sixth LP.

Another new song that was on the National’s Stage AE set list was “Don’t Swallow the Cap:”

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20130613wap zimmermanjuryselect 490

George Zimmerman is charged with second-degree murder in the shooting death of 17-year-old Trayvon Martin. Martin was returning to his father’s house from a convenience store when he encountered Zimmerman. According to Zimmerman, a crime watch member, Martin attacked him and he acted in self-defense. The prosecution will argue that Zimmerman profiled Martin because he was black.

Jury selection began on Monday in Seminole County, Florida. The selection of a jury is often the most critical stage of many trials, but it is especially important in this case. Jurors will be confronted with a defendant who acknowledges taking some action but argues that it was justified.

Both sides have been rigorously probing prospective jurors to learn the extent of their knowledge of the case -- specifically issues like Zimmerman’s internet defense fund and the nationwide demonstrations memorializing Martin.

The presiding judge has ordered the clerk of courts to summon a total of 500 potential jurors, many of whom won't get far before they're dismissed. Prosecutors and defense attorneys will ultimately settle on six jurors and four alternates. In Florida, 12 jurors are required only for capital criminal trials, where the defendant is facing the death penalty.

The first group of 100 potential jurors completed questionnaires about themselves and their ability to serve before they were questioned in court. Of those jurors summoned to court this week, 40 were sent home without ever being questioned by the attorneys. Another 30 were dismissed on Tuesday.

Prosecutors and defense attorneys plan to continue questioning jurors individually about pre-trial publicity until they reach 30, then move on to more traditional jury selection topics like impartiality, self-defense, race and lethal force.

Eventually, the sides will get to 21 possible jurors who will be questioned even further. Out of those 21 potential jurors, six will be chosen to decide Zimmerman’s fate. The way things are going, selecting a jury and alternates could take several weeks.

Here is a typical example of what prosecutors and defense counsel are hearing from potential jurors. Juror "B30", a 65-year-old man with hearing loss, said he recalled Martin's parents going public about their concerns over the lack of an immediate arrest last year and more recently testimony over whether voice-recognition experts should be allowed to testify at trial. "There was fault on both sides as far as I can see, two people being in the wrong place at the wrong time," he said. "Two people who instigated something that could have been avoided."

One thing missing from this case that comes up in most every other high profile case is a change of venue. Earl Ofari Hutchinson, an author and political analyst, wrote that it is no accident that Zimmerman's attorneys never asked for a change of venue. “With the racial numbers, social and economic demographics and political views of those most likely to be on his jury skewed in his favor,” Zimmerman is right where he wants to be -- the Seminole County Courthouse.

(Image: Jury consultant Robert Hirschhorn speaks to George Zimmerman, right, during the questioning of potential jurors in Seminole circuit court, in Sanford, Fla., Thursday, June 13, 2013. AP Photo/Orlando Sentinel, Jacob Langston/Pool)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino.

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20130610bw Hamoudi 150The Post-Gazette Business/law package starts the work week with Gabrielle Banks' discussion with two University of Pittsburgh law professors and experts on the legacy of the United States' controversial Guantanamo Bay detention facility, to assess the situation facing the Obama administration and the country at large.

From the weekend, the New York Times' Lizette Alvarez sets the stage in Seminole County, Florida, as jury selection begins in the Trayvon Martin case as defendant George Zimmerman prepares a defense against charges stemming from his fatal shooting of Martin 16 months ago.

20130610 concertscene 60And also from the weekend, Panic Street Lawyer's Jay Hornack on the Pittsburgh concert season ahead and the changing legal landscape for same-sex marriage.

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