Ahem. The First Amendment Likely Means That We Will Know Juror Names… And Pretty Soon.

I am late getting this up — as many other billable duties have ruled my day — but I was thinking of all of you, here. Smile.

This afternoon, the able Judge Matsumoto entered the following order:

“…ORDER as to Martin Shkreli.

The court has received several informal press requests for the names of the jurors in United States v. Shkreli. By August 11, 2017, news organizations seeking disclosure of juror names shall file a letter, not to exceed three pages, describing their request and citing to any applicable legal authority. By the same date, the parties in this case may, but need not, submit letters setting forward their position on disclosure of juror names. Ordered by Judge Kiyo A. Matsumoto on 8/9/2017….”

The standards here are pretty clear, under existing First Amendment case law that the press has a right of qualified access to the juror’s names. United States v. Wecht537 F.3d 222 (2008). See generally State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St. 3d 146, 156 (2002); People v. Mitchell, 233 Mich. App. 604, 605-06 (Mich. Ct. App. 1999).

Absent a particularized concern, backed by evidence, and by formal motion, from the able AUSAs that (for example) Mr. Shkreli might menace or threaten the jurors, directly or through his army of brain-dead internet zombies/trolls — once he reads the names in the paper — I think we will know their identities by the end of August.

Now you know. Onward, on a very busy office week for me here. I’ll be scarce, in comments. But smiling — just the same.



13 thoughts on “Ahem. The First Amendment Likely Means That We Will Know Juror Names… And Pretty Soon.

  1. R West says:

    Good segment on securities fraud I heard on Bloomberg radio a while back … not on Shkreli, but in general. What they said is, the penalties are so stiff because of the difficulty of detection. It’s sort of like the lottery in reverse … since the odds of getting caught are maybe 1 in 100M, they are going to stick it to you if caught … and make a deterrent to others. When you look at the “parking” conspiracy charge, that looks like the classic case of something hard to detect. There’s a good chance the Judge will add that sentence on as consecutive. It’s 5 years max, so she might just tack it on to the other sentence … whatever it is!

    Liked by 1 person

    • aldt440 says:

      Detection isn’t very difficult at all. I think you are falling for propaganda.

      Let’s take the 2008 financial crisis for example. There were numerous instances of credit ratings agencies calling garbage mortgage backed securities AAA paper, yet nobody got in trouble. There is no logical reason for ratings agencies to have avoided criminal prosecution, and the social damage from not prosecuting is the exact opposite of deterrence. In my eyes, this case would have been a prosecutorial slam dunk, yet nobody was charged. Even more disturbing, this was only the tip of the iceberg related to the 2008 financial meltdown.

      In a previous post, I stated that the difference between a criminal and civil SEC prosecution is whether or not the defendant acted willfully. Tell me with a straight face that the behavior of Angelo Mozilo in this article doesn’t sound willful to you:

      Understanding why these crimes were not prosecuted is a complicated puzzle rooted in oppressive social control and wealth extraction.

      Liked by 1 person

  2. bmartinmd says:

    A Forbes article on Shkreli’s potential sentencing: https://www.forbes.com/sites/walterpavlo/2017/08/11/sentencing-is-when-martin-shkrelis-antics-will-come-back-to-haunt-him/#2fbf56825af5

    It pretty much reiterates what we’ve been discussing here. Plus there’s a nice quote.

    “As to whether or not there are XBox modules at any federal prison facility, Donson [a former case manager at the Bureau of Prisons] said, ‘Absolutely not.'”


    • aldt440 says:

      Thanks for posting this article.

      There’s one quote that really stands out to me: “This means that those other 5 counts on which Shkreli was found “not guilty” can be part of the judge’s evaluation of a term of imprisonment. Sounds crazy, sounds unfair, but for now, that is how the system works.”

      This might be an accurate assessment of current practice, but it is flat out unconstitutional. Quoting attorneys that have a vested interest in perpetuating an oppressive system they rely on for income is not objective reporting. Why not just call this practice what it is? It is crazy and unfair; the author knows this. Since Condor is a big fan of “girl power,” and to provide some contrast to Shkreli’s transgressions on the subject of sentencing, I think the Kemba Smith story might be appropriate here.

      The Kemba Smith Story chronicles how an ideal citizen went from college student to drug dealer’s girlfriend to domestic violence victim to federal prisoner. She was, in her words, blinded by love and made some poor choices that resulted in a 24 year prison sentence. Her overwhelming public support prompted President Clinton to commute her sentence to time served – six and a half years – in December, 2000. Unfortunately, she is not alone and there are countless others that have been unjustly victimized by the onerous sentencing dragnet.


      Also, the author omitted an important element of sentence imposition. Left out of the bullet points was 18 U.S. Code § 3553 (a)(2)(D). The purpose of which is to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner – in other words, MAKING A GOOD FAITH ATTEMPT AT FIXING THE PROBLEM. As everyone here knows, I’m not a big fan of punitive punishment and feel that rehabilitation is the most important function of the penal system. Flogging to improve morale doesn’t work.

      I still need to do a lot more research on this topic. I just found this 2013 paper and haven’t had the time to read it yet. Here it is for anyone that is interested.


      Liked by 1 person

    • condor says:

      I hear you R West — here’s a related suggestion: he’s no longer “just” an accused; or even just a “defendant”.

      I propose we call him what he is, henceforth:

      He’s a… convict.

      So — you are correct — this convict has a documented history of threats of violence against people he thinks (wrongly) have crossed him.

      So you may be right, as to this felon.



    • condor says:

      Lots of additional steps first… should be near Christmas… but first post trial motions due in a few weeks… no way to call the date for sentencing until we see defense strategy: appeal? Or seek lenient sentence? Or both?

      Namaste, FTD!

      [And you are seen — eating lunch, likely — outdoors, at 12:39 or so… smiling at you!]


      • condor says:

        Issa secret… you may be assured — it is no one who ever posts here. Nor ever has. Just a… twistily literate, copper-hued someone who… lurks now… but long ago, in a galaxy far, far away… she posted often, at another property… so these brackets, they… [are to coax that brilliant mind, behind that lilting voice… that knows so much criminal law, and how juries work, in real life… to speak — once again].

        We would all benefit from the insights. I had hoped this property might — in the ghostly half light of these canyons… cause a ripple and a rise… in the river that runs… through it….


        Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.