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July|August 2004
Crash Course By Jascha Hoffman
Rundown Jury By Noel C. Paul
On Your Marks. Set. Go Home! By Dana Mulhauser
World's Richest Bailiff By Brendan I. Koerner
Cases & Controversies
The Prudent Jurist By William H. Simon

Cases & Controversies

Color Me Bad

CHRISTOPHER SLAVIN HAD COVERED HIS BODY WITH TATTOOS: Nazi Swastikas, Celtic crosses, lightning bolts, and scenes of skinheads wreaking destruction. So when he and an accomplice were charged with beating and stabbing two Mexican day laborers in an abandoned warehouse in September 2000, the prosecution moved to enter Slavin's body as evidence.

Slavin's attorneys did not want him to bare all to the jurors. They argued that requiring him to show the jury his tattoos violated his Fifth Amendment right against self-incrimination. The judge disagreed and allowed photographs to be taken of his markings and used as evidence that Slavin was capable of committing a hate crime. After deliberating for five and a half hours, a jury convicted Slavin of attempted murder, assault, and aggravated harassment. He appealed the decision up to New York's highest court, the Court of Appeals.

Slavin's lawyers argued that the tattoos were testimony, since they were used at trial to demonstrate Slavin's state of mind, and that presenting photos of them was the same as forcing Slavin to answer questions. In a 4-2 decision, the Court of Appeals disagreed, likening the tattoos to documents that could be subpoenaed. The Fifth Amendment did not apply. The "defendant created this evidence of his own accord," Judge Susan Read wrote. If Slavin didn't want the jury knowing his attitudes towards race, the court suggested, he should have kept them off his body.

Hearing Double

IN 1995, ARCHER DANIELS MIDLAND, a grain processing company in Decatur, Ill., told its shareholders that it had been named in a federal grand jury investigation for fixing the price of high-fructose corn syrup and other corn products. A year later, it pled guilty to antitrust violations and agreed to pay the government a then-record $100 million fine.

ADM's criminal worries were over, but its civil travails had just begun. More than 80 of its customers—including Publix Supermarkets and a Coca-Cola bottler—rushed to sue the grain giant and several alleged co-conspirators for damages resulting from the scheme. The courts opted to consolidate the cases in an Illinois district court. While some of the parties settled, ADM and A. E. Staley Manufacturing Company went to trial. The evidence that the government had dug up on ADM was not admissible against Staley, which had been investigated but not indicted. Still, Staley was worried about guilt by association.

The judge came up with a novel solution, though he had his doubts about whether it was legal: Why not impanel two juries to decide the same trial? One jury would hear the evidence against ADM; the other would not. The Federal Rules of Civil Procedure never mention that option, and it has only been used in a civil trial once before. The judge asked the Seventh Circuit for guidance, and a unanimous panel has now endorsed the concept, ordering the trial to go forward with two juries. "Imaginative procedures for averting jury error, as long as they do not violate any legal norm, are to be encouraged rather than discouraged," the court ruled. It did not mind that the two juries might interpret the facts differently, leaving open the real possibility that ADM could be let off while Staley could be faulted.

When $1 Million Isn't Enough

JOHN STRUNA WAS A GAMBLING MAN. And like many gamblers, he had a strategy that he thought would bring him a maximum return. As many as six nights a week, he stopped by Harry Singh's Convenient Food Mart in Cleveland. For $1 per ticket, he purchased about 300 "Buckeye 5" lottery tickets, trying the same six sequences of numbers on some 50 tickets each. Every winning ticket was good for $100,000, so Struna figured that when he won, he'd cash out at $5 million.

In 2001, he did win, with one of his lucky sequences on 52 tickets. When the Ohio Lottery Commission informed Struna that the rules capped his award at $981,000, he sued the lottery and Singh in separate actions for deceiving him. If he'd known the rules, Struna argued, he'd never have bought so many tickets. And Singh had encouraged Struna to play the lottery, calling Struna on days when he didn't stop by the store and keeping his favorite sequences on a card behind the counter. In three years, Struna spent more than $375,000 on tickets—and more than $45,000 of that went to Singh.

The Ohio Claims Court threw out Struna's suit against the lottery, but a Cuyuga County judge allowed his suit against Singh to go to the jury. In March, that jury ordered Singh to pay Struna more than $1.3 million. Singh has appealed the decision, arguing that he shouldn't be blamed for Struna's disregard for the regulations. Singh's lawyer, Gary Sewald, said, "The rules were in this guy's hands—on the back of the ticket he used to place his bets."

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