terça-feira, 3 de março de 2009

A Corte Suprema e o youtube

The New York Times de 03 de março de 2009. Notícia foi enviada pelos professores Farlei Martins e Gustavo Martins de Almeida. Procure ter acesso a revista Havard Law Review vol 122 de janeiro 2009 número 3 com o texto de autoria de Dan M. Kahan

Supreme Court Enters the YouTube Era

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for
instance, was not to an affidavit or a legal precedent but rather to a
YouTube video link. The video shows what is either appalling police
brutality or a measured response to an arrested man’s intransigence — you be
the judge.

Such evidence vérité has the potential to unsettle the way appellate judges
do their work, according to a new study in The Harvard Law Review. If
Supreme Court justices can see for themselves what happened in a case, the
study suggests, they may be less inclined to defer to the factual findings
of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia
man who was paralyzed when his car was rammed by the police in a high-speed
chase. The chase was recorded by a camera on the squad car’s dashboard, and
that video dominated the court’s analysis.

The federal appeals court in Atlanta had ruled for the driver, Victor
Harris, at a preliminary stage in the case, saying a jury should decide
whether his driving warranted the aggressive measures taken by the police.

“Harris remained in control of his vehicle, slowed for turns and
intersections and typically used indicators for turns,” the appeals court
said of the video.

But that is not how most of the justices saw it.

Justice Antonin Scalia said at the argument that the video showed “the
scariest chase I ever saw since ‘The French Connection.’ ”

Justice Stephen G. Breyer said that he was not sure how to think about the
appeals court’s interpretation and that he might “end up with Chico Marx’s
old question.” That is, Justice Breyer said, “who do you believe — me or
your own eyes?”

When the decision in the case, Scott v. Harris, was handed down, only
Justice John Paul Stevens dissented. With understated sarcasm, he
highlighted the new role his colleagues had taken on.

“Eight of the jurors on this court,” Justice Stevens said, “reach a verdict
that differs from the views of the judges on both the district court and the
court of appeals who are surely more familiar with the hazards of driving on
Georgia roads than we are.”

The court posted the video on its Web site. “I suggest that the interested
reader take advantage of the link in the court’s opinion and watch it,”
Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an
interesting study published in January in The Harvard Law Review. They
showed the video to 1,350 people, who mostly saw things as the justices did.
Three-quarters of them thought the use of potentially deadly force by the
police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who do not make much
money and those who live in the Northeast were, the study found, “much more
likely to see the police, rather than Harris, as the source of the danger
posed by the flight and to find the deliberate ramming of Harris’s vehicle
unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by

Many judges do not seem to understand, said Jessica Silbey, a law professor
at Suffolk University in Boston, that video is not categorical or
irrefutable proof like DNA but only a partial, volatile and dangerously
persuasive account of what happened.

But video can also bring an encounter to life in a way a paper transcript
never will.

Consider the video at the heart of the petition filed last month asking the
court to hear another case about what may have been excessive force by the

This one, also recorded by a patrol car’s dashboard camera, shows Jesse D.
Buckley just after he was stopped for speeding on a rural Florida road.
Being pulled over is no one’s favorite experience, but it completely undid
Mr. Buckley, who said in an interview that the prospect of paying a $175
ticket was just too much given his personal and financial troubles at the

“I just cried,” he said. “I needed to cry. I just couldn’t stop crying.”

He refused to sign the traffic citation, and he was arrested. Hands cuffed
behind his back, he sat down on the ground by his car, sobbing.

Jonathan Rackard, a sheriff’s deputy, tried to lift Mr. Buckley to move him
into the patrol car, but he failed. Then he threatened to use a Taser stun

“I don’t care anymore,” Mr. Buckley responded. “Tase me.”

Over the course of a couple of minutes, Deputy Rackard applied three
five-second 50,000-volt electrical shocks from the Taser. Between the second
and third shocks, he walked to his patrol car and called for backup. Mr.
Buckley stayed where he was.

A second officer soon arrived, and the two officers placed Mr. Buckley into
the patrol car.

Mr. Buckley pleaded guilty, paid the ticket and sued over the episode. “I
still have scars on my back and some on my chest,” he said recently.

Deputy Rackard’s lawyers, in an appeals court brief last year, said the use
of “moderate nondeadly force in the face of spirited, though nonviolent,
resistance was a reasonably proportionate response.”

“Deputy Rackard should not have to struggle to lift a heavy object like
Buckley,” the brief added, “and run the risk of a work-related injury.”

Mr. Buckley’s lawyers say that there are more than 100 federal court
decisions on the use of Tasers and that the lower courts need guidance from
the Supreme Court.

Michael R. Masinter, a lawyer for Mr. Buckley, said that “video evidence is
inherently more compelling than recorded testimony.” But he did not claim
that it is always better evidence, only that it works on the brain in a
different way.

“It’s less a question of law,” he said, “and more one of how we have evolved
as a species.”

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