Tag Archives: Legal Processes

On Eminent Domain

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Back in my lawyer days, I frequently represented local governments. From time to time this would oblige me to prosecute an action “in eminent domain.” Eminent domain is legal speak for “the town needs a piece of your front yard to widen the traffic-clogged roadway that passes by your house.” The state’s ability to take land for a public purpose is an unquestioned attribute of sovereignty, limited in the U.S. by the Fifth Amendment to the Constitution: “…nor shall private property be taken for public use, without just compensation.”

From the fledgling attorney’s point of view, eminent domain cases were a way to pad one’s record. You couldn’t actually lose one. It was not unlike American college football, where State U. runs up a string of 64-0 victories against the hapless opposition (Marylanders: this does not apply to you. The idea is to win against the hapless opposition.) Homeowners might argue that their property was worth more compensation, but not that the town could not take the property. Many tried, and were crushed by my sage legal argumentation: “I represent the town. I win.”

But the key was that the state could only take private property for a public purpose. Until, many feel, Kelo v. City of New London. In that 2005 case, the Supreme Court held that the city of New London, Connecticut, could exercise eminent domain against private property —what some considered a poor, unsightly neighborhood — and then transfer that property to another private owner who promised to “redevelop” it into more desirable (and only tenuously public) uses that Justice Thomas characterized as “suspiciously agreeable to the Pfizer Corporation,” which had recently built a facility nearby.

Big-time political disputes ensued. Had the high court defined “public use” so broadly as to drain the constitutional language of all meaning? Some 42 states responded by enacting laws narrowing the eminent domain power.

But now comes news from New York, where the Court of Appeals will hear a Brooklyn case in which the state seeks to seize private property (another “blighted” neighborhood) in favor of a $4.9 billion project to include residential and commercial buildings … and a $170 million basketball arena for the NBA New Jersey Nets franchise, who would thereupon move to Brooklyn. Just to complete the picture, the Nets soon may be sold to Russian billionaire Mikhail Prokhorov, who has offered $200 million for an 80% stake in the Nets, and 45% in the new stadium.

My questions: has eminent domain gone too far? How ought we define “public use?” And can the tender egos of young lawyers stand losing a few cases?

Race and Judgment

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View of a courtroom from a jury boxSeveral years ago, my mother was selected to serve on a jury considering the case of a black man accused of assaulting a white police officer and resisting arrest. The police officer was originally trying to arrest a different man; the defendant claimed he had become frightened while witnessing the arrest and had merely brushed against the officer accidentally in trying to leave the scene, whereupon the officer had arrested him as well.

During the voir dire process, the lawyers for both sides closely questioned potential jurors – especially those who were white or black – looking for possible racial bias against the police officer or the defendant.  When my mother, an Asian-American woman, came up for consideration, both sides immediately chose her to serve on the jury.  An Asian-American woman would be impartial when judging a case between a black man and a white one, they reasoned. When the final jury was assembled, the rest of the jurors apparently agreed with the lawyers’ opinion, as they elected my mother their forewoman.

Is it appropriate to take the color of a person’s skin into consideration during jury selection? Or should lawyers focus only on potential jurors’ stated opinions and record of behavior? Do you believe a person’s race could affect his or her ability to judge others fairly?

(For those who wonder, the jury found the defendant guilty of assault, but not of resisting arrest.)

Democracy and Patience

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You can’t blame Minnesotans for feeling underrepresented these days. 
The good citizens of my home state of Minnesota still only have one Senator serving their interests in Washington.  Normally, there are 100 Senators in the U.S. Congress; two for each of the 50 states, but the election that took place in Minnesota between candidates Norm Coleman and Al Franken is still not decided.  When the voting results on November 4, 2008 were too close to call, a legal battle began.  Nearly six months later, Minnesotans – generally a mild-mannered, polite bunch – are starting to get a little annoyed. 

Minnesota RecountOn the bright side, the events that have taken place in Minnesota regarding the undecided election have served as an interesting case study for the democratic phenomenon of recounts.   According to the official 2008 Recount Guide for the State of Minnesota, an automatic manual recount of votes cast for federal and state contests in a general election (as opposed to a primary election) will occur when:

1. The difference between the votes of the winning candidate and any other candidate is less than one-half of one percent of the total number of votes counted for that office.

2. Or, if the difference in vote count is ten votes or less for an office in which 400 votes or less votes were cast.

We’re dealing with thousands of votes cast, so reason #1 is what launched this recount. Each ballot had to be recounted one-by-one, with representatives of each of the two candidates able to dispute ballots they feel are not clear.  Some ballots have been thrown out, others that were counted in favor of one candidate have been switched to the other.  Everything follows the state rules on determining a voter’s intent.

This issue is getting enormous amounts of attention in the national media, with some commentators praising the fair and reasonable proceedings while others cry foul.  The sense I get from my friends and family back home is that they just want the whole thing to be over.  Personally, I’ve been impressed with the amount of transparency that has surrounded the recount.  The state has a website that regularly posts information about the proceedings, and Minnesota Public Radio even displays disputed ballots on its website and asks citizens to make their own judgments about them. 

It looks like Franken will eventually be named the winner, but there are still a few more legal steps to be taken.  In the meantime, Minnesotans will have to stay patient, informed, and vigilant.  This can’t go on forever, can it?

I'm Waiting in the Cell Because I Have to Know. Have I Been Guilty all this Time?

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(I’m listening to “Stop” by Pink Floyd.)

For casual spectators, criminal trials can become terribly interesting when new evidence is suddenly brought forward to convict or exonerate the suspect, and expert witnesses suddenly appear out of nowhere to contradict the findings of prosecution and defense witnesses.

But in France, the judicial system is designed to prevent this kind of drama.  I met a forensic evidence specialist in Lyon who is often called as an expert witness and researcher for criminal trials, and she says that unlike in the United States, most of the work in criminal cases is completed before the trial ever gets underway.   Thus, there are few surprises.  But there are more important things than pleasing the crowd, right?

When a criminal suspect is accused, a juge d’instruction (magistrate) conducts an impartial investigation to find evidence that will determine either guilt or innocence.  The lawyers aren’t involved.  Only the juge d’instruction, who doesn’t work for either the defense or the prosecution, is authorized to choose the experts.  After reports are submitted, the lawyers can request other experts to be nominated if they believe there are errors.
The juge d’instruction finally decides when to close this process of evidence-gathering and determines whether there is no evidence against the accused, or if there is the need for a trial.  That decision is then reviewed by another judge.

The trial goes forward with the jury rendering a verdict after hearing the experts testify orally, as well as the presentations by the prosecution and defense, and other witnesses.

I found it particularly interesting that in the case of a final appeal, the Cour de cassation in Paris (France’s equivalent of the U.S. Supreme Court), does not look at the specifics of a case, but only at whether the law was respected and applied correctly and at the validity of any new evidence (such as DNA testing).  The Cour de cassation either upholds the verdict or calls for a new trial, but it does not completely exonerate the suspect.