Colorado Law Blog

The 10th U.S. Circuit Court of Appeals reinstated an assault conviction despite evidence that jurors lied about racial bias in the case against an American Indian. The 10th Circuit, representing of Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma, focused on the sanctity of the jury deliberation process even when a juror stepped forward to accuse others on the panel of racial bias against American Indians.

An American Indian was charged with assault on a Bureau of Indian Affairs officer. During voir dire, the questioning of potential jurors before a jury is selected, all the jury members said they were not prejudiced against American Indians. But it was reported that during deliberations the foreman reportedly said, "When Indians get alcohol, they all get drunk."

When another jury member argued that all American Indians do not get drunk, the foreman allegedly insisted, "Yes, they do." And another juror spoke of "sending a message back to the reservation."

Judge Michael McConnell wrote that Federal Rule of Evidence 606(b) does not allow a juror to testify as to any matter or statements occurring during deliberations, except in limited circumstances: for extraneous prejudicial information improperly brought to the jury's attention, improper outside influences or a mistake in the jury form.

The panel of judges would not permit admission of the juror's testimony, which the defense sought in order to overturn the jury verdict. U.S. v Benally, 2008 WL 4866618.

"Impropriety alone . . . does not make a statement extraneous. That would unravel the internal/external distinction and make anything said in jury deliberations 'extraneous information' so long as it was inappropriate," McConnell wrote. He said courts must be careful not to "confuse a juror who introduces outside evidence with a juror who brings his personal experiences to bear on the matter at hand."

By contrast, the 9th Circuit has said that testimony about a juror's racial bias in deliberation can be taken into account to show deceit and to eliminate bias from the judicial system. U.S. v. Henley, 238 F. Supp. 1111 (2001). In addition, a federal trial court in New York agreed that evidence of racial bias by a juror is allowed to show whether a juror's voir dire statements were truthful. Tobias v. Smith, 468 F. Supp. 1287 (W.D.N.Y. 1979).

But the 3d Circuit has come down on the side of limiting juror testimony about potential bias inside deliberations, saying the 9th Circuit rule is too broad. Williams v. Price, 343 F. 3d 223 (3d Cir. 2003). The opinion was written by then-Judge Samuel A. Alito Jr., who has since been elevated to the U.S. Supreme Court.

McConnell also rejected the defense assertion that Rule 606(b) is unconstitutional as applied in the case because it violates the Sixth Amendment right to an impartial jury.

There have been academic suggestions that, although racially biased statements do not fall within the exceptions to Rule 606(b), in some cases the Sixth Amendment may require admission. "[O]nce it is held that the rules of evidence must be subordinated to the need to admit evidence of 6th Amendment violations, we do not see how the courts could stop at the 'most serious' such violations," McConnell wrote.

He noted that the objecting juror could have countered the biased statements by not voting with jurors to convict the defendant. And he pointed out that jury deliberations are to be treated as a "black box" even though that insulates them from potential claims of bias. It is also impossible to know if they follow judges' instructions about the law and evidence. The defense plans to seek en banc review, which would give all the judges on the 10th circuit court of appeals an opportunity to reconsider the decision.

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James Ross, 71, is dying from a rare form of cancer caused by inhaling asbestos. Mandatory autopsies have been a standard requirement of asbestos settlements dating to a 1984 Washington state court rule. The rule does allow exceptions for "religious or ethical considerations,'' but Mr. Ross objects to the procedure on personal moral grounds.

So counsel for Mr. Ross argued in court earlier this month that the rule is unconstitutionally vague. Ross v Saberhagen Holdings Inc., No. 08-2-02434-2 SEA (King Co., Wash., Super. Ct.)

As part of his pleadings Ross provided cases of plaintiffs diagnosed with mesothelioma who were exempted from the autopsy requirement because of their religion. Mr. Ross could claim the procedure violates his religious beliefs, but he simply feels the procedure is too invasive.

Ross is dying from mesothelioma, a rare form of cancer that is always fatal and is only caused by exposure to asbestos. The defendants don't dispute that Ross has mesothelioma, but the defendant company Saberhagen Holdings is insisting on the autopsy as a condition of paying the settlement. First they kill the poor guy, then insist on butchering him up.

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After seven years of litigation, and a U.S. Supreme Court victory for the school district, the "Bong Hits 4 Jesus" case has been settled for payment of $45,000 to the former student.

In 2002, when the Olympic torch was making its way across Alaska, Joseph Frederick, a then 18-year-old high school, displayed a banner across the street from the high school. The banner read, "Bong Hits 4 Jesus," a phrase intended to be humorous and nonsensical. High school principal Deborah Morse lacked a sense of humor, confiscated the banner and suspended Frederick from school.

Frederick then sued Morse and the school board in federal court for violating his free speech rights. The American Civil Liberties Union of Alaska helped with his defense, but Frederick lost in the trial court and then won in the 9th U.S. Circuit Court of Appeals. The school board took the case to the U.S. Supreme Court. In 2007, the Supreme Court, also apparently lacking a sense of humor, ruled that the school could restrict student speech that encourages the use of illegal drugs.

But earlier this year, the case returned to the 9th Circuit on the argument that the Alaska Constitution provides stronger protections for free speech than does the U.S. Constitution. With a decision pending, the parties settled the case.

Under the settlement agreement, the Juneau School Board will hold a forum on student civil liberties for all students and staff, and Frederick will be paid $45,000, of which $25,000 will come from the city and borough of Juneau and the rest from the school district's insurer, according to the ACLU. The school district will expunge all mention of the punishment from Frederick's official school records.

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Change will be felt in courtrooms as well as the White House after elections this past Tuesday, as two chief justices and two supreme court incumbents were unseated after weeks of negative television ads and millions of dollars of fundraising.

Michigan's Supreme Court race turned into the nation's nastiest judicial campaign, according to a nonpartisan organization that monitors judicial races. Bert Brandenburg, executive director of the Justice at Stake Campaign, a bipartisan organization in Washington, D.C., that tracks state judicial elections, described the race as an "orgy of negativity."

Michigan is one of a half-dozen fall court races marked by heavy spending and organized attempts by special interests, political parties and an emerging class of "super-donors" to pack courts with judges to their liking.

But the race also yielded one of the most surprising upsets, Michigan Chief Justice Cliff Taylor, a Republican, lost to Democrat Diane Marie Hathaway, 39% to 49%. Taylor raised $1.8 million, breaking his own record of $1.3 million set in 2000, according to Hall. Hathaway raised about $420,000.

The Brennan Center for Justice recently reported that Taylor and the Michigan Chamber of Commerce spent a combined $1,098,330 on TV ads in the two-week period ending October 24 -- more than four times what was spent on Hathaway ads.

In the final weeks before Election Day, almost $5 million was spent on television ads across the country, bringing the total amount spent on the airwaves to $17 million, slightly more than in 2006. Nationally, $165 million was raised for state Supreme Court races in 1999-2007, compared with $62 million in 1993-1998.

In addition to Michigan, other states are noteworthy; Mississippi, where an attack ad was pulled off the air by one network after it proved false; Alabama, where special interest spending on court elections has become a central issue; Texas, where state Democrats mounted an expensive challenge against the state's all-Republican Supreme Court; Louisiana, where a record was set for television spending in an Oct. 4 preliminary Supreme Court election; and West Virginia, where three candidates fought for two seats after a special interest-tainted chief justice was defeated in a primary.

One of the closest races was in Alabama, where Republican Greg Shaw, a judge on the state's Court of Criminal Appeals, defeated Democrat Deborah Bell Paseur, a retired district judge in Lauderdale County, with a 50.4% majority that was declared on Wednesday morning. The race was not only one of the tightest, but also the most expensive in the nation. Alabama has no spending limits, and between Shaw and Paseur, reportedly $3.8 million was raised.

In Texas, the state's Democratic Party made an unusual push for the Texas Supreme Court, whose members are all Republicans, by investing $1 million in TV ads for three Democratic candidates vying for slots on the state's highest court. All three lost.

A bigger threat in Texas came in Houston, where the Harris County Republican Party spent $1.6 million on a campaign, including television ads, to retain the 26 Republican trial judges running for reelection. Of those, 22 were unseated by Democratic challengers.

Happily, on Tuesday, voters endorsed merit selection of judges, rather than elections, in Greene County, Mo., and Johnson County, Kansas, according to Justice at Stake. This is the system used to select state judges in Colorado and generally works relatively well - at least we are not subjected to even more political attack ads.

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Yesterday while the national news was fixated on the prediction of Election Day results, the U.S. Supreme Court heard arguments in a case which has the potential for impacting people's lives far more than most of the ballot measures being considered today across the nation.

Wyeth v. Levine went before the Supreme Court, with the pharmaceutical giant arguing, with the support of the Bush administration, that the lawsuit should be thrown out because federal law preempts such state court claims. At issue is whether the federal government can limit lawsuits by consumers like Diana Levine who have been harmed by prescription medications.

Wyeth is asking the court to rule that drug makers may not make changes to labels without the approval of the Food and Drug Administration and that people cannot sue under state law for harm caused by an FDA-approved drug. But in broader terms, it may herald the application of dozens of new regulations promulgated under Bush appointees which would act to "pre-empt" state law allowing injured consumers to bring negligence claims against all types of businesses and manufacturers. During President Bush's administration, it is estimated that over 60 proposed or final regulations put out by government agencies include language aimed at shielding companies from product liability claims.

In recent years, the administration, the U.S. Chamber of Commerce and other business groups have aggressively pushed limits on lawsuits through the doctrine of pre-emption - asserting the primacy of federal regulation over rules that might differ from state to state.

Diana Levine, a professional guitarist and pianist, sought treatment for a migraine and nausea at a Vermont clinic in 2000. A physician's assistant wrongly injected the anti-nausea drug Phenergan made by Wyeth Pharmaceuticals into an artery, rather than a vein. A few weeks later, her right hand and forearm had to be amputated because of the onset of irreversible gangrene, a risk known to Wyeth arising from the injection method of administration.

Ms. Levine settled her claims against the clinic. She also filed suit against the drug's manufacturer, Wyeth, claiming that the company was negligent and failed to warn about the heightened dangers of administering the drug intravenously using a syringe, rather than by means of an IV drip. A Vermont jury awarded Ms. Levine almost $7 million in compensatory damages. Wyeth appealed and the Vermont Supreme Court upheld the verdict.

The company argues that allowing a state jury to second-guess the FDA labeling requirements undermines the carefully crafted rules and expert determinations of federal regulators. Last term, the U.S. Supreme Court justices overwhelming sided with manufacturers of medical devices in a similar matter. The companies also argued that they could not be sued by consumers for products that had been approved by the FDA. But in that case an eight-justice majority determined that Congress had explicitly written that immunity into the law. See Safety Not a State Concern?

In the law that governs drug manufacturers, there is no expressed immunity. Lawmakers have amended the food and drug laws many times without inserting any immunity provision. Congress's silence speaks volumes, and the justices should respect that determination. If Wyeth and other pharmaceuticals want change, they should take their case to Congress. In reauthorization legislation for the Consumer Product Safety Commission, Congress nullified the preemption language by inserting a section that preserves the right of consumers to seek restitution from those who caused them harm."

And the justices did not appear posed to make a sweeping generalization in the expected opinion. Several justices indicated that if the U.S. Food and Drug Administration had clear information about the risks of Wyeth Pharmaceuticals' anti-nausea drug Phenergan, and approved its warning label anyway, then Wyeth probably would prevail in its court fight against Diana Levine of Vermont, but , there was skepticism among the justices and disagreement between the opposing lawyers that the FDA had a clear picture of the disastrous consequences of improperly giving Phenergan by IV push. Justices Ruth Bader Ginsburg and Samuel Alito raised questions of patient safety and the adequacy of FDA review of the drug label, with Justice Alito questioning how the FDA approved a drug "as 'safe and effective' when 'you have the risk of gangrene.'

Yet both Chief Justice John Roberts and Justice Antonin Scalia focused on drugmakers' ability to meet federal requirements without further demands from the states. Most legal experts predict that a narrow ruling will be made.

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