Wednesday, July 30, 2014

Do you think jurors should be able to pose questions to lawyers and trial witnesses?

See - Do you think jurors should be able to pose questions to lawyers and trial witnesses?

"x x x.

Last week, the jury in a Boston corruption trial had a whopping 281 questions for lawyers and trial witnesses. Among other questions, jurors asked for a definition of "racketeering."

The Boston Globe interviewed lawyers and law professors about their thoughts on the practice of allowing juror questions during trial. One defense lawyer said she thinks it's a "dangerous step."

“In order for you to generate those questions, you have to be an advocate for one side or the other, and that’s where the problem comes in,” Rosemary Scapicchio said. “You shouldn’t want a juror to be in a position to advocate for one side or the other before all of the evidence comes in.”

This week, we'd like to ask you: Should jurors be able to pose questions to lawyers and trial witnesses? Have you ever been a part of a trial where juror questions were allowed and had a positive or negative impact?

Answer in the comments.

x x x.

Featured answer:

Posted by KBM: "In my practice, I use hierarchical and other graphics to embed information for later recall. Timelines; decision trees, org charts, Gantt charts, flowcharts and images of key documents/text. My brain works better recalling concept and factual detail stored as images rather than as just words. I suspect this is related, in no small part, to the act of creating those devices. Which is why I always have to go back to the store for whatever I forgot, when I make a shopping list. It’s just words."

Lloyd Thomas
Jul 23, 2014 4:34 PM CDT

In Arizona during Criminal Trials jurors can submit questions to the judge. I have had judges ask the jurors if they have any questions before excusing a witness. If questions are submitted the judge reviews them with the attorneys. If there are no objections the questions are asked, either by the judge or which ever party was examining the witness. The issue then becomes how much follow up can the parties do.

AndytheLawyer
Jul 23, 2014 5:25 PM CDT

I’d prefer that prospective jurors be able to ask questions to the lawyers during voir dire. They’d reveal as much about the jurors’ bias and IQ as their answers to the lawyers’ questions.

Epaminondas T. Hadalatl
Jul 23, 2014 8:06 PM CDT

It might be OK so long as there is some procedural buffer to make sure the questions are proper and seeking admissible information. Counsel should not be placed in the position of having to object to questions from the jury in the presence of the jury, because it could create a collateral bias on the part of jurors who don’t understand there may be good reasons why some of their questions should not be asked.

StephenG
Jul 24, 2014 12:12 AM CDT

There is always aa procedural buffer - counsel may object to the questions beforehand - but as a veteran of over 200 complex civil and criminal jury trials I regard juror questions as a very bad idea for several reasons.

First, it is a serious infringement on the parties’ right to order and structure their own cases. The parties have to live with the outcome, and they have a right to structure and order the presentation of proof (subject to the court’s discretion in this area) as they see fit.

Second, allowing jurors to pose what amount to cross-examination or issue questions tacitly invites jurors to step out of their role as the impartial judges of the facts into something more akin to advocacy.

Just as I prefer judges to take a less active role in the trial and act as referee and gate keeper, I think it essential that jurors stay out of the way and let the parties try their own cases.

American justice is ADVESARIAL not inquisitive in nature such as are courts in civil law countries such as Italy - where the court asks the questions.

I still think the adversarial trial system the best at protecting individual rights.

Savannah Guy
Jul 24, 2014 7:52 AM CDT

I have been a trial lawyer for more years than I care to count… and I’ve also been the foreman of a Federal jury in a major criminal trial [no, I cannot fathom how I was allowed onto the jury either, presumably both sides just ran out of peremptory challenges].

Anyway, I have read the Larry Lawyer comments above about the brilliant advocate controlling the evidence presente to the passive jury, as well as how the jury shouldn’t be advocates for this/that/or the other thing. What a load of horsefeathers! Whatever happened to the idea that the trial is supposed to be a truth finding process? Oh, right… that got lost amidst lawyer hubris.

Well, here’s a news flash for Larry Lawyer—the trial belongs to the parties, and to the public, not you.

And guess what else, gang? From the very get go, the jurors are in the judgment seat. They actually see your little tricks. Very little escapes their collective gaze. In my trial, where I was the foreman, two of our jurors lip read what the Asst U.S. Attorney was coaching a FBI witness to say during the short break the judge took to go to the bathroom! After that, no one was too pleased with what the FBI agent was saying. It was clear, both from what the two jurors told us later in the jury room, as well as from the FBI agent’s referring to a written script [no, I cannot make this up!] that he was little more than a mannequin on parade. Add that to the fact that a crucial piece of evidence got “lost” in the FBI lab, and you get the idea that the Feds didn’t look too good.

Next issue as a reality check for Larry Lawyer: if you don’t think that jurors should “advocate” for one version of events over another, just what the heck DO you think is going on in the back room during jury deliberations?

Please… get real.

Should the jurors be allowed to ask questions? Well, why not? Assuming the jurors’ questions are presented to the judge beforehand, and assuming that the questions are subject to the parties’ objections, they can only serve to clarify whatever it is the jury is finding troublesome. Would you really prefer that the jury goes back into the jury room and flips a coin? That we just guess about this or that? Well, if you don’t allow jury questions at all, that’s what’s going to happen.

I am grateful for my one chance to be on a criminal jury. It was instructive and refreshing—all of our jurors tried very, very hard to do the right thing. And, by the way, what happened in our case was a split verdict. The U.S. Attorney had piled on a number of over-the-top charges, but had several solid counts as well. We acquitted the defendant on the bogus nonsense and convicted him of the obviously proven charges. The Feds were downcast… gee, they didn’t fall for our song-and-dance routine… while the defense was sad but grateful the convictions weren’t any worse.

That might even be called Justice under the circumstances, one might think.

StephenG
Jul 24, 2014 8:52 AM CDT

@5,

Respectfully, I do not employ “tricks” during trials; California jurors are extremely educated and sophisticated.

I do spend hundreds of hours thinking through the order of proof, the order of witnesses, and the order of questions for maximum effectiveness.

And yes, the trial belongs to the parties, but my client pays me to win - not to “fight the good fight” or to ask aimless questions until the truth somehow emerges.

In fact I typically take my own depositions then abstract my own depositions and on top of that spend 40 to 60 hours per adverse witness preparing my cross-examination of key witnesses, which examination is informed by 35 years of experience.

This is not amateur hour and it’s not a free-for-all.

At least North of the Mason Dixon.

Pacific
Jul 24, 2014 10:10 AM CDT

Some states allow this, e.g., Wisconsin. In the Wisconsin criminal trial I observed, the defense found it helpful. As an attorney it is easy to get the case off base or the juror may not understand the concepts. If so, it is the attorney’s job to teach.

SlipKid
Jul 24, 2014 10:12 AM CDT

@4: Agree. Jurors asking questions without a filter in the process means they would be left to their own devices in determining whether, for example, the probative value of evidence is outweighed the prejudicial effects. Jurors are not referees of process.

StephenG
Jul 24, 2014 12:43 PM CDT

Unfortunately pop culture has given some members of the public the wrong impression about what it is trial lawyers do.

There are hacks in every profession, but a seasoned and effective trial lawyer is very much trying above all else to keep the case on track.

Especially in criminal cases, jurors are acutely skeptical of defense counsel.

In my former jurisdiction it was necessary to build trust and credibility with the jury very gradually. This is done by laying out very clearly your view of the evidence in opening statement and then DELIVERING on everything you promised and also by focusing on the key points and not getting bogged down in pettiness or triviality. And by never being perceived as hiding the ball.

An effective trial lawyer carefully structures her presentation in a logical and orderly way that makes a lasting impression and makes the key facts easy to grasp and to remember later.

It’s very frustrating when a judge messes with that orderly and effective presentation by taking over extensive questioning or allows the jury to do so.

Jurors can also become invested in the points raised by “their” individual questions and may give that evidence an exaggerated importance.

10.

BMF
Jul 24, 2014 12:56 PM CDT

@ 5: You’re forgetting one thing: Unless the 11th Circuit has some weird procedures in effect for criminal trials that I’m not aware of, a jury is a fact-finder only to the extent that evidence is properly before the court. The alleged “fact” that jurors were able to lip read an FBI agent’s lips as he conversed with a witness is unreliable, at best. It is also extraneous evidence that was not properly before the court because the court was apparently in recess! To put it in simple terms, this is no more reliable or admissible than a Google search for information on your cell phone during the break would be.

Had the court been properly informed that this was going on—which you as jury foreman and a court officer had an obligation to do—this proceeding would most likely have resulted in a mistrial. I don’t care how many f*cking years you had as a trial lawyer: expediency does not equal justice!

11.

BMF
Jul 24, 2014 12:58 PM CDT

FBI agent should be US Attorney above.

12.

Judgejj
Jul 25, 2014 7:23 AM CDT

I was a military judge for 24 years. The court members (jury) are allowed to ask questions after both sides domplete their examination of the witness. This often came as a surprise to civiian attorneys hired by an accused. The military jurors are all employed, articulate and college educated, so the questions were usually neutral and insightful, picking up on factual issue the lawyers missed or intentionally glanced over.

There is always concern about some question that might tank the case, but I never encounered one. Once a juror even asked when they could question the accused (who was not going to testify.) That simply gave me a chance to reinforce my opening instructions on burden of proof, and that the defense had no duty to offer any evidence. Better that the question was asked in open court (and addressed by the judge) than discussed later to the accused’s detriment in the deliberation room.

Some judges required the questions be in writing, and passed to the lawyers and perhaps discussed in a hearing out ot the presence of the jury. That wasted a lot of time. I accepted oral questions and clarified them orally if needed. I ruled spontaneously if the question was clealry inappropriate, and otherwise let lawyers object (and even argue it) in front of the jury. I explaining that it should not be held against either side as that was their duty. Most importantly, if a question was disallowed, I always explained in plain language why. Finally, it was always my hope that the jury would ask all of the questions I intended to ask of the witness, as there is a legitimate concern that the jury would place undue weight on a queston simply because it was asked by the judge.

13.

StephenG
Jul 25, 2014 7:54 AM CDT

@12,

“Once a juror even asked when they could question the
accused (who was not going to testify.)”

That remark alone in the presence of other jurors would require a mistrial in a civilian court as so called “Griffin error”. In fact, a defendant has a right to object to a jury instruction that he has a right not to testify as calling undue attention to his silence at trial.

That is just one example of the pitfalls posed by juror questions in civilian courts.

As to military courts, you know what they say” “Military justice is to justice as military music is to music”.

14.

Judgejj
Jul 25, 2014 8:20 AM CDT

@13 What do you think those jurors say in the deliberation room about the defendant’s silence when they are not instructed about the right to remain silent, and not to draw any inferences from the silence?

And, what prejudice compells you to denigrate a court system with which you are so obviously unfamiliar?

15.

Marion Walker
Jul 25, 2014 8:56 AM CDT

Filtered questions can be a help to any side and provide useful information about the jury’s perspective on a case. An employer’s “notice” about discriminatory remarks or actions is always at issue in employment litigation and questions from the jurors about the evidence of that notice or actions of a manager can be helpful in addressing issues or testimony with other witnesses or in closing.

16.

StephenG
Jul 25, 2014 9:18 AM CDT

1. The evidence.

2. I was admitted to the practice of law before the California Supreme Court, the Northen District of California, the Eastern District of California, and the 9th Circuit since 1978 and I have had an extremely varied general trial practice and am also an avid reader and legal scholar and have learned a thing or two about a thing or two in my 60 years‎ about a thing or two. I have also read the book “Military Justice is to Justice as Military Music is to Music”.

But let me ask you - would you rather be tried as a criminal defendant before a state court jury of 12 or by a military tribunal?

17.

Pat. Pend.
Jul 25, 2014 9:24 AM CDT

Many years ago I was defending a patent litigation concerning a cell-based assay. We look at the whole case in great detail and the claim is simply gobbledygook but to the extent it means anything, it is anticipated (e.g., invalid). But the technology is complicated and the judge permits the jury to proffer questions each night for the parties’ experts to confer over and answer jointly.

One day there is a demonstrative presentation of how the process works, with a cell portrayed in one color and after a cell-surface receptor interacts with a ligand, the cell is shown with changed color to show that it now had the ligand attached. So that night, we get a question: “does the cell really change color?” and it occurs to me that irrespective of the merits, twelve laypersons really have no idea what is happening here and we are going to lose.

Which in fact we did, although that was reversed on appeal at the Fed. Cir.

18.

J
Jul 25, 2014 10:08 AM CDT

#16: So you don’t have any experience practicing in military courts, but you read a book published in 1970? Did you also stay in a Holiday Inn Express last night?

I’ve had experience at the federal and state level, as well as in military courts. Honestly, I really like the practice of jurors asking questions in military courts. They would have sheets of paper they could write the question on, and both sides would have a chance to check a box to object, not object, or request a hearing outside the jury’s presence. It allows them to ensure they’re understanding, and also allows the attorneys to see where they’re focusing their questions.

Moreover, I’d definitely pick a military court if I were accused of a crime. The military grand jury (Article 32) offers a lot of benefits to an accused, in my experience the juries are very engaged and educated, and there are no mandatory minimums if convicted.

19.

RebeccaW
Jul 25, 2014 10:18 AM CDT

Just finished a five day civil trial. Jurors submitted 26 questions, and two follow-ons. Questions are written, counsel and judge review the questions and there is opportunity to object, then the judge reads the questions to the witness, then counsel can ask follow-on questions. I think it’s a great system. The jurors are trying to figure out the facts, and the attorneys are too close to the case to always see what the jurors will want to know. I’ve been on a couple juries, and those juries worked hard to get it right.

20.

KellyB
Jul 25, 2014 10:23 AM CDT

In a personal injury trial we once had a jury asked, “How do you calculate general damages?” after deliberating for only an hour or two. We, the plaintiff’s side, began celebrating in our minds as this was an incredibly tough case of liability. Later, we found out, that the jury was jumping all around on the verdict form and not following the rules like a bunch of morons. Defense verdict.

21.

Samson Woldemariam
Jul 25, 2014 11:25 AM CDT

No. Simply because there are going to be issues of admissibility that the Judge will have to ultimately rule on. Waste of time & resources.

22.

Judgejj
Jul 25, 2014 11:47 AM CDT

@16. Your evidence is a collection of anecdotes written during the Vietnam War by an investigative reporter?

Thanks for laying out your background. Impressive, but irrelevant despite your age and having learned “a thing or two,” several times. Apparently none of “things” was learned first-hand in a U.S. Court Martial.

My background, on the other hand involves serving as a trial judge before you even entered law school. As I said in passing, 24 years as a military judge. About 2,000 criminal trials, from misdemeanors to capital cases. Over 40% litigated to verdict before a military jury. In those cases, the cumulative acquittal rate was around 18%, well above that in most civilian jurisdictions. I attribute that mostly to the diligence of the military juries in following the judge’s legal instructions, and perhaps being overly generous in determining what doubts were “reasonable.”

Although it is irrelevant to this discussion, I am no longer in the military, but I’m still a judge. As for your question, some states do not require a 12 member jury. And I would still choose a military jury any day.

23.

J
Jul 25, 2014 11:54 AM CDT

@21: As opposed to when lawyers ask questions and there aren’t issues of admissibility?

Perhaps it’s because of my practice area (criminal), but I’ve generally been impressed with jurors at every level I’ve practiced at, even when I lose.

24.

KellyB
Jul 25, 2014 12:01 PM CDT

@23: In my opinion, it depends on your location. It’s harder to find a suitable jury in rural areas.

25.

BMF
Jul 25, 2014 12:55 PM CDT

@ 14: In my experience, most attorneys will give an instruction. If the attorneys fail to do so, the judges will usually give the instruction sua sponte, because of the fundamental legal concept underlying the defendant’s silence.

26.

James Pollock
Jul 25, 2014 1:39 PM CDT

I have experience as a college instructor, so perhaps I view questions differently than the practitioners here, but questions are good. They show that the audience is engaged in what they’re seeing, but they didn’t understand something that was just presented. Instead of going forward with the presentation anyway, you have an opportunity to correct a mistaken or missing understanding before you build any further concepts on the audience (or audience member’s) flawed foundation.

In normal proceedings, the trial lawyer examining the witness must attempt to put themselves in the shoes of the jury, and make sure the testimony is understandable in terms the jury understands. At the same time, they have to be thinking in terms of building their own case and countering the opposition’s case. That’s a lot of mental juggling. It’s easy to let something get past because WE know what the witness meant when they used that term of art, and sometimes we forget that EVERYONE doesn’t necessarily know.

27.

Michigan Lawyer
Jul 25, 2014 2:38 PM CDT

My personal belief is that jurors should be able to ask questions. After all, they are the ones who will decide the case. Oftentimes, the question can help the lawyer identify areas of the case that need a little more attention (or inattention depending on which side of the aisle). With appropriate filters and safeguards (including jury instructions and admissibility rulings from the bench), questions from the jury provide insight into where the jury’s “head” is in a particular case. It speeds up the deliberation process as well. Now that I have tried cases where the jury can ask questions, I would not want it any other way.

Michigan Courts have allowed questions by the jury since 2010. I am a Plaintiff’s personal injury lawyer, and can usually get a case settled before trial. I have had 2 jury trials since the new Court Rules went into effect. The rules leave questions by the jurors up to the Judge’s discretion. Personally, I like it. The juror writes a question down and before a witness is excused, the Judge asks the jury if there are any questions. The questions are passed to the Judge, who calls the lawyers up to the bench and we all silently read them.

Unless the question is clearly inadmissible, the Judge asks the lawyers if there are any objections to the question. The question may be asked in a slightly different way to preserve non-bias. If it will be asked, the Judge reads the question to the witness, who answers. Both attorneys have a chance to follow up on the answer. Michigan also has a court rule allowing for the Judge or attorneys to provide commentary (or summary) on what a witness just said. I am totally against that and thankfully, so are most attorneys and Judges in Michigan so we don’t have to deal with that very often.

28.

Yankee
Jul 25, 2014 3:35 PM CDT

Jurors should be able to pose questions to trial witnesses, since they do, after all, sit as the finders of fact.

Although jurors should be subject to the same general limitations as the parties to the proceeding when asking questions (e.g., relevance), any question posed by the jury should persumptively be permitted.

29.

StephenG
Jul 25, 2014 4:16 PM CDT

This is getting off topic, but a blue ribbon jury of three - you might as well have the court decide the facts. Second, stricter rules of evidence in California state court vs military court favor the defense. And my acquittal rate is well above 70% thank you. Nor would I be caught dead in a Holiday Inn. Four Seasons iis more my style.

30.

Tom Youngjohn
Jul 25, 2014 9:26 PM CDT

I like the idea of anonymous questions which either side’s lawyer can answer, or can ask of their witness if they wish. Anonymity though.

31.

ColinC
Jul 26, 2014 7:27 PM CDT

@StephenG:

“Tribunal” does not have any relationship with the word “three.” You would know that if your familiarity with military justice was more than passing.

“Tribunal” derives from the Roman military structure, where a tribune, akin to a modern field or flag officer, sat in judgment over a proceeding. The term applied regardless of the number of judges.

Your misapplication of the term belies your ignorance.

32.

StephenG
Jul 27, 2014 4:14 AM CDT

“A trio of members may suffice for a Special Court-Martial proceeding” – source http://en.wikipedia.org/wiki/United_States_military_jury#Jury_composition

(I can take the time to provide an official US Military source if you insist.)

My point was, that blue ribbon tribunals, “juries”, fact-finders, or whatever nomenclature you prefer – especially tribunals of 3 – do not favor the defense in criminal litigation. One might as well agree to a court trial.

Of course there are fact-based exceptions, where, for instance the accused is highly unsympathetic and/or the defense is highly technical, and he/she is unlikely to get any sympathy from a lay-jury. However, a court trial in such instances is a low percentage desperation move.

I do have a sufficient command of the English language to know that “tribunal” does not refer to the number 3. I was alluding to the fact that in the military justice system you could wind up being judged by a tribunal of three.

BTW, I did some additional reading of the Military Rules of Evidence, and note some additional potentially disadvantageous aspects of military justice for the defense.

Unlike in a civilian court, any question may be objected to not only on the grounds of calling for “classified” information, but also on the grounds that the question calls for “government information” that is “harmful” to the government. So cross-examination of government prosecution witnesses and examination of defense witnesses could be potentially shut down if the answers might prove harmful or embarrassing to the military. (See Rules 505 and 506; see, generally, Manuel for Court’s Martial, United States (2012 Edition), http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf.

I have been called a lot of things sir – some of them justified – but “ignorant” I am not.

I notice the two military and/or former military commenters here so far seem a tad defensive.

I wonder why that is?

It may be links like the following, originally published by US News and World Report:
http://www.warchronicle.com/MilitaryJustice/analysis/UnequalJusticeUSNewsWorldReport.htm

33.

judgejj
Jul 27, 2014 6:44 AM CDT

You started this conversation @13 by diverging from the topic with a gratuitous attack on military justice, that had nothing to do with the question presented.

I wonder why that is?

Your knowledge on the subject is so superficial that you believe you grasp even the nuances by researching Wikipedia.

Yes, misdemeanor courts in the military can legally proceed with only three jurors, but that happens very infrequently, and only as a result of challenges (preemptory and for cause). More frequently, when the number drops below 3, sufficient additional members are added so that the average special court is empanelled with at least 5 o6 six jurors. Did Wikipedia mention that?

I also note that California was considering non-jury trials for some categories of misdemeanors. That might adversely impact your acquittal rate at “well above 70%, thank you.” @29. If it is based on anything else, your local prosecutors have WAY too much money and time on their hands.

Reading rules of evidence in a vacuum also results in superficial analysis. Like federal district courts, military courts can (and do) conduct classified trials, or classified portions of trials. When classified information is presented by the prosecution or the defense, the classified information is presented in a classified hearing.

I agree with @18. You must have stayed at a Holiday Inn Express last night.

34.

StephenG
Jul 27, 2014 7:10 AM CDT

Me thinks the lady doth protest too much.

35.

StephenG
Jul 27, 2014 7:15 AM CDT

PS: Since I retired last year my acquittal rate of 78% will remain. And, the California Constitution - as well as the US Constitution - gives the right to trial by jury where incarceration may result.

36.

judgejj
Jul 27, 2014 10:43 AM CDT

When you don’t have the facts or the law, quote Wikipedia and Shakespeare @34. Glad it worked for your clients @35. Doubtless you crave the last word, and you may have it.

37.

StephenG
Jul 27, 2014 12:02 PM CDT

If you read my post I clearly stated that I would be happy to provide a US Military citation - which proved unnecessary because you conceded the point.

With all due respect you do sound a bit defensive. Okay, a lot defensive.

I notice that you (and the former military judge) conveniently ignored the analysis and observations set forth in the cited US News article, including conviction rates far higher than claimed in these comments, a system that allows prosecutors to hand pick court’s Marshall panelists, a double standard applied to officers vs enlisted men, the same lawyer being allowed to prosecute, then defend the same accused and other serious issues.

38.

StephenG
Jul 28, 2014 2:32 PM CDT

Just came across this news article; apparently Congress and the DOD don’t share some of the “pro military justice” opinions expressed above:

HEADLINE: Pentagon plans major review of military justice system

QUOTE: “’It’s been over 30 years since the military code of justice was reviewed. It’s simply time,” said Lt. Col. J. Todd Breasseale, a Pentagon spokesman.”

QUOTE: “’As I understand it, it will be a top-to-bottom review, which means everything is on the table,’ Fidell said. ‘I think this is part of the larger dismay that the country has been feeling about whether the system was functioning in the best way possible.’”

QUOTE: “He said the panel should address a ‘dramatic disparity’ between civilian and military defendants in their rights to appeal to the U.S. Supreme Court if convicted. Most of those convicted in military courts cannot appeal to the high court, he said, only to the military appeals court.”

http://articles.latimes.com/2014/apr/15/nation/la-na-military-justice-20140416

x x x."

New poll commissioner Lim: My appointment is not a prize | News | GMA News Online

See - New poll commissioner Lim: My appointment is not a prize | News | GMA News Online

"x x x.

New poll commissioner Arthur Lim on Monday dismissed insinuations that his appointment is a reward for his role in the impeachment trial of former Chief Justice Renato Corona in 2012.

“I don't think it's a prize but an opportunity to serve," Lim told reporters of his appointment on his first day as a Commission on Elections (Comelec) commissioner.

Lim, a former Integrated Bar of the Philippines president, was one of the 57 private prosecutors in the Corona impeachment trial in the Senate.

During Monday's interview, Lim, who has been in private practice for 44 years, said he sees his appointment as a late-minute opportunity to be a public servant.

“I have been in the private sector for 44 years. I am thankful that in the twilight years of my life with God's grace I am still healthy and I will be able to give it back to the government,” he said.
Lim said the closest he ever came to working in the government was when he was part of the collaborating council of the Presidential Commission on Good Government in the early days of his career.

As Comelec commissioner, Lim vowed to “serve faithful and sincerely. I will not promise anything regarding my performance. Time will tell.”

“It is an honor that I was given the opportunity to be in the public sector, in my own little way can contribute whatever I would be able to do in the Comelec to fulfill its mandate,” he said.

Malacañang announced Lim's appointment last Friday, replacing Commissioner Grace Padaca. His term will be until February 2, 2018.

Padaca was replaced after she failed to get the approval of the Commission on Appointments several times. —KBK, GMA News

x x x."

Tuesday, July 8, 2014

Estafa; elements of - 168903.pdf

See - 168903.pdf

"x x x.

The elements of estafa in general are:

1) That the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit; and

2) That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.

The first element covers the following ways of committing estafa:

1) with unfaithfulness or abuse of confidence;

2) by means of false pretenses or fraudulent acts; or

3) through fraudulent means.

The first way of committing estafa is known as estafa with abuse of confidence, while the second and the third ways cover estafa by means of deceit.

This Court finds that the present case does not constitute estafa in either form.

x x x."

DAP and good faith | Inquirer Opinion

See - DAP and good faith | Inquirer Opinion

"x x x.

DAP, of course, is the Disbursement Acceleration Program used by the government to speed up the use of government money for the accomplishment of public purposes. The money involved is public money in the national treasury and the fundamental constitutional rule is that no money may be taken out of the public treasure except in accordance with an appropriation made by law. And even after the money is appropriated by law, it may be spent only within the limits prescribed by law.

The DAP involves money that were placed in the hands of President Aquino. It is broken up into “items.” An item consists of two parts: an amount of money and the purpose for which it is to be spent. Normally such money may be used only for the purpose specified in the item. However, in order to give some flexibility to the President in the handling of money, he may be authorized by law to augment the money in one item in his department with “savings” from another item. “Savings” mean leftover money after the purpose of an item has been accomplished.

There are therefore two important limitations here: (1) The President can transfer only savings and (2) the transfers can only be to augment items in the President’s budget. In declaring the DAP unconstitutional, the Court said that (1) the President moved money which were not savings in an item but which were sourced from various places, and (2) that he transferred money from his budget to other offices (e.g., the Commission on Audit and Congress).

This was all done by the budget secretary and therefore effectively by the President because in our presidential system, the acts of department heads are presumptively the acts of the President, unless the President expressly reprobates them. I am not sure if in fact it was he who signed the documents needed. But certainly he considered it an important accomplishment.

Unfortunately, by the unanimous vote of the Supreme Court justices, the accomplishment was declared partly unconstitutional. Why only partly?

The reason is the operation of what is called the “operative fact doctrine.” What is this? The doctrine of operative fact recognizes that a law or executive act, before it is declared unconstitutional, is an “operative fact” which produces consequences that cannot always be erased, ignored or disregarded. The law is nullified, but its effect is sustained. “Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.”

However, as Justice Arturo Brion has clarified, the doctrine of operative fact cannot apply to the authors and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities. The Supreme Court is not the proper tribunal to determine that.

Necessarily, therefore, the question must be asked about the good faith of the author of the law that has been declared unconstitutional. But what is good faith?

Good faith is an abstract term which includes a sincere belief without any malice or intent to defraud. It is a term often found in Commercial Law—e.g., a buyer who purchases from one who did not have title to the object bought may be called a buyer in good faith if he observed honesty in the transaction and observed reasonable commercial standards. To meet this test, the person must have demonstrated honesty in the conduct of the transaction concerned, and must have observed reasonable commercial standards of fair dealing in the trade.

If the purchaser acquires the property by an honest contract or agreement and without knowledge of any defect in the title of the seller or means of knowledge sufficient to charge the buyer with such knowledge, the purchaser is deemed a purchaser in good faith.

By analogy, if the President and the budget secretary did not know that what they were doing was illegal and could not have reasonably known its illegality and only wanted to accelerate the movement of public money for the public good, they would be in good faith. Remember, however, that what is involved here is not just peanuts but billions and billions of pesos. How believable would the claim be that the President and the budget secretary, both veterans of Congress, had no inkling or the slightest suspicion of what the Constitution requires for handling public money?

Monday, July 7, 2014

Sandiganbayan justice linked to Napoles splits Supreme Court

See - Sandiganbayan justice linked to Napoles splits Supreme Court

"x x x.

Sandiganbayan justice linked to Napoles splits Supreme Court

Court insiders tell Rappler justices are divided on whether Justice Gregory Ong should be meted the lighter penalty of suspension or the extreme penalty of dismissal with all his benefits forfeited

Aries C. Rufo

Published 8:21 PM, Jul 05, 2014

Updated 6:47 PM, Jul 06, 2014

MANILA, Philippines – Supreme Court justices are split down the middle, 6-6, on whether Sandiganbayan Justice Gregory Ong should be dismissed, Rappler has learned.

The justices have agreed that Ong violated the New Code of Judicial Conduct for judicial officials and employees after his links to alleged pork barrel queen Janet Lim Napoles were exposed and confirmed.

He was found guilty of gross misconduct, dishonesty and impropriety for disgracing the integrity of the judiciary, but the justices are in disagreement over what sanction to give him. Court insiders told Rappler the question is whether he should be meted the lighter penalty of suspension or the extreme penalty of dismissal with all his benefits forfeited.

Ong was found guilty in an administrative proceeding conducted by former Justice Angelina Sandoval-Gutierrez.

Gutierrez, who was tasked by the SC to look into allegations that the Sandiganbayan justice might have compromised the integrity of the judiciary through his personal ties with Napoles, recommended Ong’s dismissal for “serious transgressions” that have "impaired” the image of the judiciary "to which he owes the duty of loyalty and obligation to keep it at all times above suspicion and worth of the people’s trust.”

Ong, she said, “should not stay in his position even for a moment.”

Of the 14 justices (with one vacancy following the retirement of Roberto Abad), two have inhibited from Ong’s case. Justices Teresita Leonardo-De Castro and Diosdado Peralta begged off from participating in Ong’s case, saying he was a former colleague at the anti-graft court. The High Court has yet to decide with finality on Ong's fate.

P100 million to fix Kevlar case

In her report to the SC dated May 15, 2014, Gutierrez found “substantial evidence” that Ong was guilty of the 3 charges slapped against him, and concluded that the justice was Napoles’ main contact at the anti-graft court.

Such connection allowed Napoles to get off the hook in the Kevlar helmet case that was tried by the 4th division which, incidentally, Ong chaired.

“Respondent’s acts of allowing himself to be Napoles’ contact in the Sandiganbayan, resulting in the fixing of the Kevlar case, and of accepting money from her, constitute gross misconduct, a violation of the New Code of Judicial Conduct for the Philippine judiciary,” the report said.

(Read the full report below, a copy of which was obtained by Rappler.)

Napoles is at the center of the country's worst corruption scandal in recent years, dragging in a number of lawmakers who allegedly exchanged their Priority Development Assistance Fund for kickbacks. Three senators – Juan Ponce Enrile, Jinggoy Estrada, and Ramon "Bong' Revilla Jr – are now in jail after they were charged with plunder before the Sandiganbayan. (READ: 3 PH senators charged with plunder over PDAF scam)

Pork barrel whistleblowers Benhur Luy and Marina Sula testified before the SC probe that Ong was Napoles’ “connect” in the Sandiganbayan, and that Napoles had known beforehand that she would be cleared even before the ruling was handed down. (READ: How Janet Lim Napoles got away)

Luy testified that Napoles and Ong were in constant communication even before the ruling was handed down in 2010.

To fix the Kevlar helmet case, Luy said Napoles spent P100 million, a sum which surprised Luy since the Kevlar helmet case only amounted to P3.8 million. Napoles would tell Luy, who was her former record keeper “that she gave various amounts to different people during the pendency of the case….”

Napoles said she gave Ong part of the money “but she never mentioned the amount.”

Luy said he first met Ong sometime in 2012 when the justice and Napoles agreed on a special financial arrangement that allowed the jurist to avail of the 13% interest offered by the Armed Forces of the Philippines and Police Savings and Loan Association Inc (AFPSLAI).

In that meeting, Luy said Ong produced a Banco de Oro check worth P25.5 million for the special arrangement. Napoles however instructed Luy to deposit the check in her personal account with Metrobank and that she would just issue checks each amounting to P282,000 to Ong for the monthly interests. Luy said he prepared 11 checks with the total amount of P3.102 million.

For her part, Sula corroborated Luy’s accounts. She also testified that Napoles had bragged to her former employees not to worry when the pork barrel scandal broke out, since “she has contact with the Sandiganbayan.”

When the former employees mentioned Ong’s name in jest, Napoles said : “Ay 'wag na iyon kasi masyadong mataas ang talent fee (I will no longer get his services, his talent fee is too high).”

Ong's defense & the Black Nazarene

In his defense, Ong denied that he was Napoles’ contact in the anti-graft court and that money exchanged hands in connection with the Kevlar helmet case. Ong pointed out that the ruling was a collegial decision, adding that Napoles’ mother, brother, and sister-in-law were convicted. The two other members of the 4th division are Justices Jose Hernandez and Maria Cristina Cornejo.

Ong however admitted that he met Napoles thrice in 2012, but this was two years after the Kevlar helmet case was decided.

The first time was when he attended the birthday party of Senator Jinggoy Estrada on February 17, 2012. In that encounter, he said Napoles introduced herself and thanked him for the acquittal.

The following month, sometime in March 2012, he admitted seeing Napoles twice to personally thank her for facilitating the meeting with former rector of Quiapo Church, Monsignor Josefino Ramirez, for access to the robe of the Black Nazarene.

The report said Ong has been a devotee of the Holy Black Nazarene "since he was a little boy." He was told by Napoles that Ramirez has with him the robe of the Holy Black Nazarene "which has a healing power if one wears it." Ong asked if he could have access to the robe "so he can be cured of his ailment (prostate cancer) which he keeps only to himself and to the immediate members of his family."

Napoles made arrangements with Ramirez until Ong "was able to drape the robe over his body for about one or two minutes in Quiapo Church. He also received a fragrant ball of cotton which he keeps until now to heal any ailing part of his body. That was a great deal for him. So out of courtesy, he visited Napoles in her office and thanked her." This was his first visit to Napoles.

This is where things get more interesting.

Court records showed that on January 21, 2013, or 10 months after the magistrate met with Ong in her JLN office, the justice signed the probation order that allowed Napoles’ brother, Reynald Lim, and his wife, Anna Marie Dulguime, to escape prison term following their conviction in the Kevlar case. (READ: Noose tightens on fugitive Napoles brother)

This means the meetings between Napoles and Ong already transpired before the probation applications of Napoles’ brother and sister-in-law were approved by the court.

Morally unfit and unworthy

Ong’s alibi, however, fell short as far as Gutierrez was concerned.

In finding Ong also guilty of dishonesty, Gutierrez observed that Ong’s visit to Napoles “supports [Luy’s] assertion that he received money from Napoles.

“According to respondent (Ong), the purpose of his first visit was to thank Napoles for making it possible for him to wear the Holy Black Nazarene’s robe. Even assuming it is true, nonetheless, it is equally true that during that visit, respondent could have transacted with Napoles. Why would Napoles pay respondent an advance interest of P3,102,000 with her own money if it were not a consideration for a favor,” Gutierrez said in her report.

In this instance, “respondent’s transgression pertains to his personal life and no direct relation to his judicial function. It is not misconduct but plain dishonesty. His act is unquestionably disgraceful and renders him morally unfit as member of the judiciary and unworthy of the privileges the law confers on him.”

Gutierrez also found Ong guilty of impropriety when he allowed himself to be photographed with Senator Jinggoy Estrada and Napoles. Rappler published the photo showing a smiling Estrada side by side with Ong and Napoles. (READ: Exclusive: Napoles parties with anti-graft court justice)

While the photo was undated, Ong told Gutierrez the picture could have been taken during Estrada’s birthday celebration on February 17, 2012.

“This incident manifests respondent’s disregard of the dictum that propriety and the appearance of propriety are essential to the performance of all the activities of a judge. This exacting standard of decorum is demanded from justices to promote public confidence in the integrity of the judiciary."

“In joining Senator Estrada and Napoles in a picture taking, respondent gave a ground for reproach by reason of impropriety,” Gutierrez said.

Gutierrez also brushed aside Ong’s alibi that he did not know Napoles since she did not attend the hearings of the Kevlar case and might have waived her appearance. This was also the explanation given by Ong when Rappler sought to get his side on the photo.

“Respondent’s explanation lacks merit. That court could not have acquired jurisdiction over her if she did not appear personally for arraignment,” Gutierrez said. – Rappler.com

YOUR GUIDE TO THE PORK BARREL SCAM

PORK TALES : A story of corruption

Find out how the Napoles story began, the characters involved in this scandal and how the scam works in this interactive presentation

TIMELINE: Janet Napoles from scandal to testimony

This timeline traces the series of events that culminated in Napoles' surrender.

x x x ."

More about the pork barrel scamx

Saturday, July 5, 2014

JDF not pork, SC insists | ABS-CBN News

See - JDF not pork, SC insists | ABS-CBN News

"x x x.

MANILA, Philippines - The Supreme Court (SC) yesterday defended its Judiciary Development Fund (JDF) amid calls in Congress to scrutinize what some lawmakers branded as the high court’s pork barrel.

SC spokesman Theodore Te refuted the claims of some administration congressmen that JDF is similar to the pork barrel and the Disbursement Acceleration Program (DAP) of the executive, which were both declared unconstitutional by the high court.

“There is no discretion on how to spend JDF funds – whether as to amount, percentage or purpose,” he said on Twitter.

Te explained that the nature of JDF, which was created through Presidential Decree 1949 issued by the late strongman Ferdinand Marcos in 1984, is different from that of the pork barrel.

Te made the statement following the reported plan of Isabela Rep. Rodolfo Albano III to ask the committee on appropriations of the House of Representatives to examine the proposed budget for the judiciary and the JDF during the budget deliberation process expected to start next month.

Albano said the SC decision declaring DAP and the Priority Development Assistance Fund (PDAF) as unconstitutional should also apply to the judiciary fund.

The lawmaker said he would ask the Commission on Audit to conduct a detailed examination of the JDF collections and disbursements.

Eastern Samar Rep. Ben Evardone and Ilocos Norte Rep. Rodolfo Fariñas supported Albano’s call.

Chief Justice Ma. Lourdes Sereno had explained that JDF is not the same as the controversial pork barrel fund.

Sereno said JDF was created for the benefit of the members and personnel of the judiciary and to ensure its independence as mandated by the Constitution.

Unlike pork barrel, she said JDF is not discretionary, as the law requires that 80 percent of the fund shall be used for cost of living allowances and not more than 20 percent shall be used for office equipment and facilities of the courts.

While the chief justice is given the power to administer and allocate the fund and has the sole power to approve the authorized disbursement and expenditures of the fund, she is not given any discretion on how the funds will be used.

Sereno had denied reports that the JDF amounts to around P5 billion.

The SC said that 80 percent of the fund is released monthly to employees as cost of living allowances.

The 20 percent, on the other hand, has an accumulated balance of P1.435 billion as of Nov. 30, according to a report by the SC’s office of fiscal management and budget office.

Of this amount, P732.5 million has been earmarked for the construction of the Court of Appeals buildings in Cebu and Cagayan de Oro and consultancy services for the electrical system of the high court in Manila.

Another P620.7 million has been certified as available for various capital outlays of the court, including the procurement of computers and construction and repair of courts.

The SC chief lamented that the 20-percent component of JDF, which amounts to P200 million per annum, is “barely enough for the court to source its budget for renovations, repairs and construction of halls of justice and for the various equipment needed for court operations.”

x x x."

Friday, July 4, 2014

SC ruling on DAP; dispositive part of decision. - 209287.pdf

See - 209287.pdf

"x x x.

WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and

unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the

General Appropriations Acts;

(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.

The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts.

x x x."