During Dave’s final year at the university, he
worked in Internet technology section of the school’s communication
center. During this time he became familiar with the security protocols
used by the university. With his business degree at knowledge, he set
up a small corporation that sold widgets. Using his understanding of
the university’s information technology security system to bypass the
university’s security protocols, he managed to have the university pay
the bill for the information technology that his company used by
stealing computer resources.
Other students who remained at the university discovered Dave’s scheme
and notified police. Dave’s widget business was not doing well so Dave
had to file bankruptcy at about the same time that the state filed an
information charging him with felony theft of services.
An attorney was appointed to represent Dave at the preliminary hearing
and the same attorney handled the felony trial at which Dave was
convicted as charged. His attorney requested a jury trial during which a
total of six jurors were seated to form the jury. They heard most of
the case, but near the end of the trial, one of the jurors had to have
emergency surgery and was excused by the judge. Since no alternate
jurors were available at this point, the judge decided to allow the
remaining five jurors to decide the case. As the judge noted,
“Non-unanimous jury verdicts have been approved, so we will just have to
go with five jurors. It will be almost like a non-unanimous jury
verdict and it’ll be all right.” As it turned out, Five jurors
eventually voted to convict Dave of the charged offense.
Earlier, during the jury selection process, the prosecutor kept using
peremptory challenges that had the effect of removing most members of
Dave’s race from the jury. Dave’s attorney objected to the use of race
as a standard for eliminating jurors, but the judge overruled Dave’s
attorney. Dave’s attorney began eliminating members of the prospective
jury based on a gender standard because he wanted more ” geeky” types to
hear the case. He was eliminating prospective jurors based on gender
in a similar way from what the prosecutor had been doing with race.
When the prosecutor objected to what Dave’s attorney was doing with
respect to removing jurors based on gender, the judge said, “Well, that
should even things out.”
At the conclusion of jury selection, Dave’s attorney was not happy with
the panel that had been selected, so after consulting with Dave, he
requested that the judge hear the case without a jury. The judge refused
because he noted that the prosecution had the right to a jury trial
based on the guarantees under the federal constitution.
The judge ordered that the case proceed and the result was that the jury
convicted Dave. The judge sentenced him to a year and a day in the
state prison but did not order a fine or restitution.
The Procedural Question
Following the conclusion of the bankruptcy proceedings, Dave did manage
to scrape some money together and hired an appellate attorney to see
what opportunities for legal relief might exist in the Court of Appeals.
Dave explained as much of what happened as he could remember, and the
appellate attorney read the trial transcript. What legal issues should
is appellate attorney identify? How should those issues be resolved? Why
should the legal issues in this case be resolved the manner that you