Friday, February 6, 2009

The Difference a Choice of Words Makes

The Jackson Free Press, the ever-vigilant watchdog during the Melton Administration, tells us about a critical issue raised toward the end of jury selection today in United States District Court. The story is here:

As the JFP relates:

In today’s proceedings, defense attorneys and prosecutors questioned the final potential jurors and clashed over the use of the term “bad purpose.” Cynthia Stewart, Recio’s attorney, used the term during her line of questioning, in describing to potential jurors what constitutes a “willful” act. Jurors must decide whether or not Melton and Recio acted “willfully” in depriving Ridgeway duplex resident Evans Welch and owner Jennifer Sutton of their Constitutional rights. Federal prosecutor Mark Blumberg objected to the term “bad purpose.”

“My ruling said that the instructions on this law will have to define the term ‘willful’ as a conscious intent to do wrong and deprive a right protected by the Constitution,” Jordan said. “What I am hearing is that the two sides have a different concept as to what a conscious purpose to do wrong means.”

The Clarion-Ledger story is here:

The C-L adds this point:

Quoting 5th U.S. Circuit Court of Appeals precedent, Blumberg said jurors must decide whether Melton and his former bodyguard, Michael Recio, acted "voluntarily and purposefully" in violating the law. Defense attorney Cynthia Stewart said the language should be limited to whether the defendants acted with "bad purpose."

Stewart said she would ask for a mistrial or a delay if Jordan changed his ruling at such a late date. Jordan said he believed his ruling was broadly worded enough to proceed with jury selection, but both sides indicated the precise wording to jurors in how to define the actions of the mayor and his bodyguard is central to their cases.

This is no small matter. Recall that in the State Court trial over the same incident, the jury was instructed that it had to find that Mayor Melton acted "with evil intent" in order to be convicted. Those words gave attorneys Dale Danks, Jr., and Merrida Coxwell the chance to defend the case on the basis of the Mayor's desire to stop crime in Jackson.

Cynthia Stewart and John Reeves obviously want to use the same defense in the Federal case, and the comments made by prospective jurors indicate they would be sympathetic to it.

But if the jury only has to find that the Mayor acted "wilfully," with a "conscious purpose to do wrong and deprive a right protected by the Constitution," evidence that "Melton wants to do right, he just got carried away" might not even be admissible.

The ultimate question, though, is why "conscious purpose to do wrong" would be in the instruction. If the Federal agents doing post-9/11 surveillance had no "purpose to do wrong," (because, like Vice President Cheney, they thought extra-legal measures were needed to stop terrorism), but knew they were depriving Constitutional rights, isn't that enough to convict?

The instruction should allow the jury to convict if they find the Mayor acted "willfully, with a conscious purpose to deprive a right protected by the Constitution."

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