A Jan. 6 defendant from Texas who ran for Congress last year and is reportedly attempting another political run has been granted permission to “examine and publish” footage, evidence and discovery from his criminal case surrounding the events of the 2021 Capitol attack — but the Justice Department says not so fast.

Ryan Zink, 35, of Lubbock, was granted access last week by U.S. District Judge James Boasberg on account of the DOJ not filing a memorandum in opposition to Zink’s March 22 motion to lift a protective order keeping his case material sealed. Boasberg issued a minute order on April 9 announcing his decision, which the DOJ apparently saw and responded to Wednesday with the document in question.

“As the Government has not opposed Defendant’s Motion to Lift Protective Order, the Court orders that the Motion is granted, and the Protective Order is lifted,” a docket entry from Boasberg said last week.

In response, the DOJ’s top prosecutor in Washington, D.C., Ed Martin, signed off on a memorandum in opposition Wednesday that said granting such a request to Zink would put people at risk and pose a threat to national security.

“Lifting a protective order in this case creates a dangerous opportunity and could potentially place sensitive information in the possession of those who would use it to harm the national security, in addition to allowing terabytes of information including individual defendants’, witnesses’, and victims’ personal identifying information to be released to the public,” Martin said. “The government has thus demonstrated that release of these materials could cause a significant hazard to others, and there is no prejudice to the defendant from continuing the protective order here.”

There’s nothing fake about it. The legal industry is facing a big problem with deepfakes. Courtrooms are not yet flooded with a tsunami of deepfake evidence, but with this artificial intelligence-generated technology playing with great success on social media and in fraud schemes, it’s only a matter of time before deepfakes regularly drop into the exhibit list.

Cases with a deepfake component already include:

• United States v. Reffitt: A defendant’s counsel argued that the prosecution’s evidence could be a deepfake.
• Sz Huang v Tesla: A defendant’s counsel argued that video evidence of a party’s principal’s statements could be a deepfake.
• United States v. Doolin: A court allowed introduction of video evidence that the defense argued could have been a deepfake.
• Al-Qarqani v. Chevron Corp.: An attorney submitted an exhibit reciting an allegedly false timeline of facts published in a newspaper that does not exist.

According to March 2023 article the New York Times, many of the apps and tools used to create deepfakes are available to anyone with a smartphone and are free or inexpensive, making it far too easy to create or alter digital evidence.

Amplifying the problem is the fact that “right now, truth is starting to become a matter of degree,” says Maura R. Grossman, a research professor at the University of Waterloo and an attorney and e-discovery special master. Grossman points to examples, such as touching up an exhibit photo to turn a frown into a smile. This small change may be immaterial to a case—or not.

What about changing a few pixels to make it impossible to tell whether someone is holding a phone or a gun in their hand? Materially altered photo and video evidence will be thrown out, but misinformation based on reconfigured reality will undoubtedly be introduced into the courtroom and to juries.

“So much of the justice system relies on interpreting evidence and deciding how much weight to give it,” Grossman says. “And we’re now moving into a world where not only can we no longer rely on our senses to do that, but we may need experts, and that changes the cost. And for the judge, that creates delays and adds a whole new layer.”

Is the most efficient solution a technical or a legal solution?

The legal world is grappling with how to handle deepfake evidence, with procedural solutions currently getting public attention as technology solutions develop more slowly. Here are three approaches on how evidence suspected of being deepfake can be handled in the legal system.

1. Technical experts

Digital forensic experts use machine-learning capabilities in AI-based detection systems to inspect the authenticity of digital media. Deepfake videos with audio are the most difficult to identify because of the human tendency to overlook small discrepancies in a video and focus on the main idea.

Digital forensic experts can apply multimodal analysis to examine multiple data sources and combine techniques. These capabilities range from artifact detection, to frame-by-frame analysis and blink analysis, to luminance gradient analysis and pixel error analysis. After conducting necessary analyses, the expert can render an opinion as to whether the evidence is authentic or altered—or not—based on irregularities found.

Hiring a digital forensic expert can cost from a few hundred dollars for hourly consulting to several thousand dollars per project. For high-profile cases with significant legal implications, fees can be much greater.

Jerry Bui of Texas-based Right Forensics is also a consultant to Interpol. He tells us that, “Deepfakes force us to confront an uncomfortable truth: Seeing is no longer believing. As forensic experts, we’re not just authenticating evidence—we’re trying to safeguard the integrity of the justice system in an era where digital manipulation can rewrite reality.”

2. Court rules

U.S. courts are slowly moving to address deepfake evidence. At the Nov. 8, 2024, meeting of the Advisory Committee on Evidence Rules, a committee of the Judicial Conference of the United States, the committee considered proposed Rule 901(c), authored by Grossman and Judge Paul Grimm, a retired federal judge and professor at the Duke University School of Law.

The rule, if adopted, would govern “potentially fabricated or altered electronic evidence,” reading: “If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that a jury reasonably could find that the evidence has been altered or fabricated, in whole or in part, by artificial intelligence, the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.”

Grimm and Grossman’s proposed rule places burdens on the challenging and the offering parties, as well as the courts, helping to reduce the risk of exposing juries to deepfakes. It is one of several being considered by various judicial committees. Some experts think that no changes are needed to the rules of evidence.

Given the speed at which deepfake technology evolves and improves, changes in rules or procedures might not be useful. In the meantime, decisions will be meted out by the courts based on individual challenges as they arise.

3. Procedural approaches

Courts will use the existing rules to make decisions for the foreseeable future, having hearings on evidence. Judges will have to agree to analyze digital evidence, putting the burden on litigants to prove the legitimacy of the evidence in question, rather than placing the onus on the judge to decide whether the evidence is genuine or deepfake, admissible or not.

One of the critical issues that arises when considering the legal impact of deepfakes is cost—who pays to prove whether evidence is real or fake?

“This becomes an access-to-justice issue,” says Rebecca Delfino, the associate dean of clinical programs and experiential learning at the Loyola Law School at Loyola Marymount University. “In a perfect world, it would be taken care of in a criminal case. If the government wants to prove an audio-visual image is of the defendant robbing a bank, and the defendant claims it’s a deepfake, the government should have to pay for expert analysis because the burden of proof is on the prosecution. That may or may not happen; It depends on the available resources.

“But in the civil context, it’s going to be a significant problem,” Delfino continues. “Even for a simple example—such as the expression in a photograph being digitally altered from a frown to a smile—the individual will need to retain some type of expert.”

In family court, with its many pro se litigants, yet another reality exists—that a photo showing bruises would change someone’s life. Is it real or a deepfake? Who pays the expert to analyze it?

It’s just one of a multitude of questions that remains to be answered on how the legal world will adapt to a rising tide of deepfake evidence. We may not be at the end of reality, but deepfakes are definitely going to rock the legal world as we know it.

Practice tips

1. Look for items of evidence that are too good or too damaging to be true.
2. Deepfakes in social media tend to be video, audio and pictures. You can easily get automated optical character recognition to find text in pictures. You can also get machine transcription of audio and video. Each of these yields searchable text that you can use as a starting point to uncover suspicious material.
3. Plan your deposition or trial, so that you have your exhibit lists ready earlier than you do now. Implore the court to require your adversaries to do the same.
4. Evaluate the exhibits, paying close attention to those with audio, video or picture formats. Interview your witnesses, and challenge suspicious content. Don’t wait until the day of testimony.
5. Be prepared to engage a computer forensic examiner to evaluate the evidentiary quality of an item suspected of deepfake.

See also:

Is the legal system ready for AI-generated deepfake videos?

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Chuck Kellner is a strategic discovery adviser at Everlaw. Kellner has worked as an expert on e-discovery protocols, proportionality and cost of e-discovery, findings on computer forensic examination, and requirements for defensible search and review.

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Mind Your Business is a series of columns written by lawyers, legal professionals and others within the legal industry. The purpose of these columns is to offer practical guidance for attorneys on how to run their practices, provide information about the latest trends in legal technology and how it can help lawyers work more efficiently, and strategies for building a thriving business.

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Interested in contributing a column? Send a query to [email protected].

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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U.S. Supreme Court

Expected noncompliance with court orders shouldn’t defeat standing, Kavanaugh says in DNA-test arguments

By Debra Cassens Weiss

February 25, 2025, 11:08 am CST

The U.S. Supreme Court appeared divided Monday in arguments over a death row inmate’s quest for a DNA test to show that he wasn’t inside a trailer where robbery accomplices killed an 85-year-old woman.

Justice Brett Kavanaugh was among the justices appearing sympathetic to Texas inmate Ruben Gutierrez’s bid for testing to establish that he didn’t deserve the death penalty for the 1998 murder, report Courthouse News Service, Law.com, SCOTUSblog and the New York Times.

Kavanaugh wrote the 6-3 Supreme Court decision in 2023 that allowed Texas inmate Rodney Reed to pursue a DNA test.

The issue in the Reed case was whether the statute of limitations barred his request for a DNA test in his federal civil rights lawsuit. Before reaching the issue, however, the Supreme Court said Reed had sufficiently alleged an injury that would be redressed by a finding that state DNA testing procedures violate due process.

In Gutierrez’s case, the issue is whether Gutierrez had standing to challenge Texas statute that allows postconviction DNA testing only when it could lead to an overturned conviction. The law does not allow testing when it affects only the sentence, as in Gutierrez’s case.

Texas argues that Gutierrez doesn’t have standing to bring a due process challenge to the statute because he would still be eligible for the death penalty under Texas law and wouldn’t be entitled to the test.

Texas law permits a capital murder conviction in a robbery scheme even if other accomplices killed the victim and even if the defendant didn’t anticipate the murder.

Lawyers for Gutierrez, on the other hand, argue that jurors would not have sentenced Gutierrez to death if DNA showed that he was not in the home and that he wasn’t a “major participant” in the crime. They also argue that courts don’t have to determine whether state officials would redress Gutierrez’s injury if courts were to declare the statute unconstitutional.

Kavanaugh “appeared to take umbrage at the suggestion” that prosecutors might not allow DNA testing even if the Texas statute is found unconstitutional, according to Law.com.

SCOTUSblog reported on Kavanaugh’s comment.

“I just don’t see,” he said, “how we can say something’s not redressable just because the prosecutor is going to say I’m not going to comply with a court order. You know, if President Nixon said I’m not going to come turn over the tapes no matter what, you wouldn’t say, ‘Oh, I guess we don’t have standing to hear the executive privilege case.’”

Courthouse News Service points out that Kavanaugh’s comment comes following suggestions by Vice President JD Vance that presidents could ignore court orders that interfere with their lawful exercise of power.

The case is Gutierrez v. Saenz.

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Last fall, I attended a continuing legal education conference focused on sex crime defense and an outstanding speaker—who discussed the emerging field of forensic genetic genealogy—mentioned The Genetic Detective, a six-episode reality TV series that aired on ABC in 2020. The reference came from a credible source, so I figured it was worth viewing.

‘The Hot Case’

CeCe Moore, a genetic genealogist who originally worked more toward helping people discover their biological identities and lineage, utilizes The Genetic Detective to recount various situations in which she assisted law enforcement in solving cold cases.

Not knowing where to start, I visited the show’s IMDb page and discovered that “The Hot Case” (the last episode in the series) was the most applicable to my trial work. I was able to view it for free at ABC.com.

The episode focused on a 79-year-old woman from St. George, Utah, who was raped in her home as she slept. Law enforcement was alerted to the attack and immediately conducted a crime scene investigation. They located a large portion of genetic material, namely seminal fluid, that they attributed to the assailant.

The material was collected and submitted to the Combined DNA Index System, a database known as CODIS, which is used by law enforcement to compare unknown DNA profiles to known profiles collected from offenders and missing persons. But the submission didn’t return a result, so a St. George police detective reached out to Moore in hopes that her methods could help.

Moore employs a database of genetic material submitted by individuals who want to discover their genealogy. As the episode plays out, we learn about a divide between those who feel using these family tree-type databases for law enforcement purposes is an assault on privacy rights and those who favor the trade-off of solving cold cases.

The rape was Moore’s first open case. I don’t want to give away too much because the episode, and likely the series as a whole, is worth watching.

Interestingly, “The Hot Case,” takes a meta approach to the science by also incorporating the then-ongoing William Earl Talbott II litigation. Tabbott was charged in 2018 with the 1987 murders in California of Canadian teenagers Jay Cook and Tanya van Cuyklenborg. Moore had aided law enforcement in apprehending Tabbott, and the episode is able to show how the trial played out in real time.

Which is important to Moore and the system as a whole: This was the first time genetic genealogy had been used at trial. The method was allowed as admissible and helped secure a double-murder conviction. In 2024, the Washington Court of Appeals affirmed Talbott’s judgement and sentence, with a directive that the trial court strike a firearm enhancement. The state supreme court denied review the same year.

DNA evidence in a criminal prosecution

Moore works backward with the relevant and available DNA profiles, and her discussion and demonstration of how she does so is remarkable. But I’ve yet to see genetic genealogy used firsthand in a criminal case.

I wouldn’t be surprised if it comes up, though, as prosecutors will try to employ genetic evidence any chance they have. After all, the only thing better than DNA evidence for a prosecutor is a confession. Actually, some might argue that DNA evidence is still the preferred ammunition. Science is objective.

More importantly, the general public swallows it hook, line and sinker. DNA is a complicated subject, and most receive only limited information through media saturation.

Consequently, those litigants willing to put in the time and effort to further educate themselves will be ahead in the ball game. I know that sounds self-evident, but the uninitiated would be surprised to learn how many players in the legal arena lack more than a basic understanding of a topic that sometimes determines life and death.

And that is scary because when the science is really examined, in my experience, it becomes clear that most situations involving DNA are far from the clear-cut conclusions they initially appear to be.

Turning an obstacle into an advantage

You win your cases at your desk, not inside the courtroom. Many times, if you know the subject better than your adversary, the conclusion isn’t the crux; it’s the delivery that matters most.

Think about it: Suppose you’re defending someone charged with a shooting. In that case, you need to educate yourself on the qualities of gunshot residue, blood splatter evidence, different calibers of firearms, rifling and impressions, among other things. If it’s an arson allegation, you have to be up to snuff on burn patterns, accelerants and smoke and flame colors. Even when it comes to something like a simple DUI, you need to understand the ins and outs of standardized field sobriety tests, gas chromatography, chemical tests, and drug and alcohol metabolization.

The same goes for cases that involve DNA. In order to speak intelligently with an expert on the subject, you have to educate yourself. It’s necessary to read relevant literature to establish a firm grasp on the subject’s essential aspects and stay abreast of developments in the field.

Maybe even more important than speaking with an expert on cross-examination, though, is speaking with a potential jury during voir dire. To the degree allowed by the court, you want to educate the prospective fact-finders. The only way to make that process smooth is to know the material well enough to boil it down to terms and analogies that will resonate.

After all, did you know you can deposit your DNA through secondary and even tertiary transfer? Moreover, there’s literature that discusses quaternary transfer, which is a DNA transfer from one person to another whom they never even touched. For instance, let’s say someone touches a doorknob. Someone else then touches that same doorknob and then touches their car door. A third person later touches that same car door. That third person has now potentially acquired the first person’s DNA, even though they never had contact with them.

Also, were you aware that we can deposit our DNA through aerosol transfer simply by speaking? Most people, and plenty of attorneys, have no idea about these mechanisms.

And that’s just the tip of the iceberg. The existence of DNA merely shows that genetic material is present. Every other circumstance is still subject to multiple facts, considerations, circumstances and interpretations. Those interpretations can lead to innocent explanations if you understand the science.

Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Judiciary

Federal appeals judge, 97, loses bid to unseal documents about her suspension

By Debra Cassens Weiss

February 4, 2025, 9:30 am CST

Federal law does not permit a 97-year-old federal appeals judge to unseal documents about her suspension absent consent of the chief judge of her circuit, the U.S. Court of Appeals for the District of Columbia Circuit ruled Monday.

Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit wanted to unseal the documents in an appeal of a federal judge’s July ruling dismissing her challenge to the disability law governing her case, Law360 reports.

Newman was suspended in September 2023 for refusing to participate in medical evaluations to determine her mental fitness.

Newman had told the D.C. Circuit that the only confidential information in the documents concern her medical history, Law360 reported. The Federal Circuit countered that the documents were of “questionable relevance” and will soon be released with redactions.

Newman was investigated after evidence was said to show “troubling signs” of her cognitive decline. Her expert, an editor of the principal neurosurgery textbook, said Newman had an “extraordinarily high level of cognitive ability” and appears to be a “super-ager.”

The D.C. Circuit said the Judicial Conduct and Disability Act generally does not permit disclosure of records related to investigations unless written consent is obtained from the judge under investigation and the chief judge of the relevant circuit.

See also:

97-year-old federal appeals judge should be suspended another year for exam refusal, panel says

Federal appeals judge, 97, who refused to cooperate in fitness probe loses challenge to disability law

Investigations of federal judges are rare and should happen more, former clerk says

Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe

Speaking at ABA meeting, federal appeals judge, 96, doesn’t address her suspension but mentions opinion pace

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Judge apologizes to slain jogger Ahmaud Arbery’s family after tossing charges against district attorney

By Debra Cassens Weiss

February 10, 2025, 9:21 am CST

A Georgia judge has tossed the charges against a prosecutor accused of favoring a former white investigator in her office before he was charged in the 2020 death of Black jogger Ahmaud Arbery.

Former Brunswick, Georgia, District Attorney Jackie Johnson had been charged with violating her oath of office and obstructing a police officer in the investigation that followed Arbery’s death. Her trial began in January, according to PBS News.

Judge John R. Turner of Glynn County, Georgia, granted a directed verdict on the obstruction charge Feb. 3 after concluding that prosecutors failed to present sufficient evidence that Johnson obstructed the death investigation. Turner tossed the oath-violation charge two days later after defense lawyers argued that the indictment didn’t accuse Johnson of crimes in connection with the charge and listed the wrong oath of office.

Publications covering the tossed charges are Courthouse News Service, Law360 and the Associated Press.

Arbery, 25, was shot and killed after two white men pursued him in a pickup truck because they thought that he was a suspect in several break-ins in the area. A white neighbor who joined the pursuit in his truck recorded the incident on video. No arrests were made for more than two months.

The leaked video later showed that the shooter was Travis McMichael. His father, Gregory McMichael, a former police office who once worked for Johnson, had joined the chase. The man who shot the video was William “Roddie” Bryan. All three were convicted in November 2021, when jurors rejected arguments that they were making a citizen’s arrest and that Arbery was shot in self-defense when Arbery tried to grab a gun. They were also convicted of federal hate crimes in August 2022.

Several witnesses had testified that Johnson never directed anyone to refrain from arresting the McMichaels, according to Courthouse News Service. Johnson testified that she immediately recused herself from the case when she found out that her former employee was involved. When she saw the video, Johnson said, she thought that the slaying “looked like murder,” and she informed the Georgia Bureau of Investigation about calls that she had received from Gregory McMichael.

Turner apologized to Arbery’s family members after tossing the final charge, according to Courthouse News Service.

“This is not a decision I wanted to make, but feel like I must,” he said.

Turner also said he feels “sadness for the death of this young man and what his family has gone through.”

Johnson was represented by lawyer Brian Steel, who also represented rapper Young Thug in a high-profile criminal trial. Steel said Johnson should not have been charged.

“It’s a sad day. Ahmaud Arbery was slaughtered for no reason, and then-Attorney General Chris Carr piggybacked one of the greatest tragedies in our state and nation and indicted an innocent woman,” Steel told Courthouse News Service.

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Criminal Justice

SCOTUSblog founder Tom Goldstein accused of transferring millions in cryptocurrency after tax indictment

By Debra Cassens Weiss

February 11, 2025, 9:55 am CST

A federal magistrate judge has concluded that SCOTUSblog co-founder Tom Goldstein violated his conditions of release on tax fraud charges by failing to disclose the existence of two cryptocurrency wallets through which he allegedly received and sent millions of dollars in the currency.

Goldstein, a former U.S. Supreme Court litigator and a high-stakes poker player, was arrested again Monday, report Law360, Bloomberg Law and Reuters.

U.S. Magistrate Judge Timothy J. Sullivan of the District of Maryland ordered Goldstein’s detention the same day, finding that prosecutors had produced clear and convincing evidence of the pretrial release violation.

Goldstein received more than $8 million in cryptocurrency and sent more than $6 million over the last five days, according to a prosecution motion unsealed Monday. The motion sought an arrest warrant and a revocation of the order authorizing Goldstein’s pretrial release.

Goldstein “presents an urgent risk of flight,” the motion said.

Prosecutors also alleged in a separate legal filing that Goldstein has instructed third parties, including potential witnesses, to destroy evidence that is relevant to the charges.

Goldstein said at a hearing Monday the cryptocurrency wallets did not belong to him, according to Law360.

“These are not my accounts,” he said after asked to be placed under oath. “I didn’t engage in these transfers.”

Goldstein was charged in a Jan. 16 indictment with understating gambling winnings on tax returns earned in “ultrahigh-stakes” poker matches while using his boutique law firm to pay debts and to pay women with whom he was involved or pursuing. He was also accused of failing to report money owed in debts and taxes when he applied for a mortgage.

The indictment includes allegations that Goldstein concealed cryptocurrency transactions on his tax returns.

One of the witnesses in the case is a California-based actor who hired Goldstein to collect a poker debt, prosecutors said. The government thinks that the actor will testify that Goldstein told him to pay his fee directly to a businessman to whom Goldstein owed money, which meant that the income was not captured in his firm banking records or reported on his tax returns.

At the same time that he most recently moved cryptocurrency, Goldstein claimed to be “destitute,” prosecutors said. Goldstein made the claim in a bid to substitute properties owned by relatives for the Washington, D.C., home that he owned with his wife, SCOTUSblog co-founder and reporter Amy Howe, as collateral to assure his future court appearances.

Goldstein had referenced a pretrial services report that said he had a negative net worth of more than $3.3 million in a motion that he filed under his signature Feb. 5. Goldstein said he wanted to use the equity in his home to pay for his lawyers.

Yet one of Goldstein’s bank accounts has a balance of $250,000, and he has been spending $20,000 per month for an apartment in Dallas, $5,000 per month for a housekeeper, and $8,000 per month on a personal assistant, prosecutors said.

The wallets said to have been recently used by Goldstein were “unhosted,” meaning that no cryptocurrency exchange, bank or financial institution controls access to the wallets, and there is no institution that can be subpoenaed for the owner’s identity, the government said.

But Goldstein allegedly revealed existence of the wallets to others.

Goldstein had identified one of the wallets to the CEO of a luxury travel company, and he had used it to send more than $73 million in cryptocurrency and receive more than $75 million in the currency since it was opened, according to prosecutors. There were no assets in the wallet at the time of Goldstein’s indictment.

Goldstein had used the second wallet to collect a poker debt of more than $242,000, prosecutors said.

Goldstein continues to maintain that he can’t afford the lawyers who had been representing him as “limited appearance” counsel, Sullivan said. Goldstein will be representing himself in the future, Sullivan said, after he was advised that “any type of hybrid representation (where he acts has his own attorney for some matters but has a lawyer act on his behalf for other matters) will not be permitted.”

See also:

Indicted SCOTUSblog founder Tom Goldstein can’t switch collateral, magistrate judge rules

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I’ve tried dozens of cases in my career. As with anything else, the more you look at something, the more pronounced the cracks and deficiencies become. Interestingly, Clint Eastwood’s supposed directorial goodbye, Juror #2, does a great job of focusing on one of those deficiencies, namely juror honesty and how it affects the rule of law.

With a limited theater release in November, the film, now available on Amazon Prime, stars Nicholas Hoult as Justin Kemp, a recovering alcoholic who received a jury summons. Through various flashbacks, we learn that although he has struggled with addiction, he seems to have his life back on track—with a baby on the way to boot.

At jury selection, he discloses to the judge that his wife has a high-risk pregnancy. The trial lawyer in me couldn’t help but chuckle when the judge noted that if he could work his day job with his wife at home alone, he could spend that time in court.

We quickly learn the trial concerns heavy allegations: after a drunken night at the bar, which included a big argument, the defendant is accused of killing his then-girlfriend by blunt-force trauma to the head as she walked home after the fight. The prosecution alleges he left her body in a ditch over the railing of the road.

The defendant, James Michael Sythe, is played by Gabriel Basso. His girlfriend, Kendall Carter, is played by Clint Eastwood’s daughter Francesca Eastwood.

Most of the movie’s first half-hour or so speeds by with a timeframe consumed with quick, exceptional vignettes from trial. The swift scene changes don’t focus too much on substance. Usually that would bother me, but the style the attorneys employ is immediately accessible. The drama is there, but it’s not overdone.

Questions and concerns

As the trial moves forward and the relevant facts begin to take shape, Justin Kemp, the juror, realizes he was at that same bar the night in question, processing a recent miscarriage. Despite spending the evening staring at a drink without breaking his sobriety, as he was driving home in the rain, he dropped his phone, and the car hit something in the dark … at the exact spot where Kendall Carter’s body was found over the railing.

The film hit a lot of different chords for me. I kept coming back to the notion that the juror had a duty to reveal this information about that night and that location. Jurors swear to answer questions truthfully during jury selection, and they hopefully honor that fact. Moreover, jurors have to alert the court when they feel they can no longer be fair and impartial—no matter when those thoughts and emotions rear their head.

The juror thinks back—after the collision, he got out of the car and looked around. He didn’t see anything or anyone, and due to a Deer Crossing sign on the side of the road, he understandably put two and two together. However, he spirals, and his negative thoughts get the best of him. Was the death his fault?

He never tells anyone about his whereabouts, although he tries his best during deliberations to prevent the jury from quickly convicting the defendant.

Without giving away too much, the movie’s pivotal question comes down to the juror’s honesty, and the concept of honesty in general. He isn’t sure if he hit the girlfriend, but he knows it’s possible. Should he let the defendant take the fall or fall on the proverbial sword himself?

Everybody lies sometimes

I’ve had trials where a seated juror approached the judge to admit that, for whatever reason, they could no longer be fair to one side or the other. And you know what? I respect the hell out of that. It still gives me faith that the system works when we’re open and honest.

At the same time, though, I know some potential jurors are less than totally honest about their perspectives, biases and knowledge of relevant facts. Sadly, a lot of this dishonesty tends to happen during jury selection, a state of the trial where those notions should and easily can be revealed to the attorneys and judge.

The fact that information is kept hidden is odd because voir dire is like an interview for a job no one wants. Disclosing that bias would be an easy out of the venire, but something keeps them from relaying the information. Even though it’s usually obvious when someone doesn’t want to be there, most folks still do everything they can to put on their best appearances and swear they’ll follow the law. People don’t want to look bad in a public setting.

So, jurors rarely admit they can’t be fair and impartial. I’ve had sex crime victims tell me during jury selection for a sex crime case that they can put their experiences aside. Can they? Maybe. Is it likely their past trauma might sneak in and bias their opinion? Certainly.

I’m sure some people have faith and conviction they’ve healed to the point where they’ve “moved on” from a horrible event like that. But a juror with that background usually isn’t getting past a concerned attorney’s preemptory challenges. Other issues aren’t always so apparent, like jurors who lie about their ability to refrain from drawing a negative implication or inference from my client’s decision not to testify.

The forgotten Fifth Amendment

I once tried a child sex crimes case where we felt we had a pretty good defense. The prosecutor admitted she wasn’t confident in a conviction, and the trial went mostly in our favor.

As with most of my cases, I didn’t know for sure whether my client would testify. We’d planned for the possibility, but once the government’s evidence came out, we felt there was more to lose than gain by getting on the stand.

I try to get ahead of either possibility by discussing the prosecution’s burden and my client’s constitutional rights during voir dire. All the potential jurors swore in various ways, multiple times, that they wouldn’t hold it against my client if he didn’t take the stand. Moreover, prior to closing arguments, as with every other trial, the judge instructed the jury it could not draw an adverse inference from my client’s decision not to testify.

After he was convicted, I contacted the jurors to see if any of them would speak with me. That’s the best way to perfect your craft and better your advocacy. Only one of the jurors was willing to talk.

Through tears, she explained that the other jurors had argued my client must be guilty since he wasn’t willing to take the stand. She reminded them what I had said and the judge had instructed. She said it was to no avail, and they finally wore her down for a unanimous verdict. I did what I could to get that information before the court, but Oklahoma’s codification of Federal Rule of Evidence 606, which prohibits jurors testifying to matters or statements occurring during deliberations aside from a few exceptions, ruled the day.

After that trial, I had a bit of an existential examination. How could the jurors lie straight to my face? How could they disregard their oath and the instructions they received?

As Juror #2 shows, though, maybe there were other factors at play beyond my knowledge.

Still, it doesn’t make it right or OK.

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Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Giuliani contempt decision blocks him from doing this, putting his Florida condo at risk

By Debra Cassens Weiss

January 7, 2025, 10:34 am CST

Disbarred lawyer Rudy Giuliani is “in dire jeopardy” of having to turn over his Palm Beach, Florida, condo to two Georgia election workers who sued him for defamation after a federal judge held the former New York City mayor in civil contempt Monday, according to a report by Politico.

U.S. District Judge Lewis J. Liman of the Southern District of New York barred Giuliani from presenting evidence on the primary defense that would allow him to keep the Florida condo after he failed to provide information that would help determine whether the property was his primary residence, Politico reports.

Liman’s decision allows him to draw negative inferences about Giuliani’s Florida residency, report the New York Times and Law.com.

The trial on whether 80-year-old Giuliani is entitled to keep the condo is scheduled for next week before Liman. At issue is whether the condo is Giuliani’s homestead entitled to protection under the Florida Constitution.

Publications with coverage, in addition to Politico, Law.com and the New York Times, include Reuters, the Associated Press and CNN.

The election workers, Ruby Freeman and her daughter Wandrea “Shaye” Moss, won a $148 million defamation verdict against Giuliani after he accused them of election fraud in the 2020 election. Giuliani was formerly a lawyer for President-elect Donald Trump.

Giuliani had claimed in now-dismissed bankruptcy proceedings that his New York co-op apartment was his homestead residence, which protected a portion of it in bankruptcy proceedings, according to a Dec. 27 decision denying Giuliani’s motion for summary judgment. After the bankruptcy dismissal, Giuliani declared Florida to be his domicile.

The contempt finding was for Giuliani’s failure to provide evidence about his primary residence, according to the New York Times.

Giuliani did not turn over full names of his doctors or provide a full list of other professional service providers, leading the judge to conclude that none was in Florida before Giuliani changed his residence there in January 2024, the AP explains. Liman also barred Giuliani from presenting testimony or electronic communications to establish the Florida homestead.

Giuliani could also be held in contempt separately for failing to turn over property, the New York Times says.

Giuliani has already turned over designer watches and a 1980 Mercedes-Benz convertible. He is also moving to turn over his Manhattan apartment in New York City. He did not provide a framed jersey of baseball player Joe DiMaggio, however, which he said he can’t find. Nor did he turn over his grandfather’s pocket watch, which he pulled out during the hearing Monday, saying he fears that it will be lost.

The liability verdict was delivered in a trial held only to determine damages after a different federal judge entered a default liability judgment against Giuliani for failing to provide meaningful discovery. That federal judge, Judge Beryl A. Howell of the District of Columbia, has scheduled a separate contempt hearing against Giuliani for Friday for alleged violation of an agreement not to make new defamatory claims about the election workers, Politico reports.

Giuliani said in his podcast Monday evening the New York court’s request for information was “enormously burdensome,” and he had already released “hundreds and hundreds of pages of discovery.” according to reporting by CNN. He said he didn’t have to testify because the judge “had already made up his mind.”

Giuliani’s spokesperson, Ted Goodman, released a statement. Freeman and Moss “might be happy to fight to take away Mayor Giuliani’s most cherished personal belongings, including his signed baseball jersey of his childhood hero and his grandfather’s pocket watch, but they can never take away his extraordinary record of public service,” Goodman said.