September 4, 2017
High-profile case that might hinge on voluntary/involuntary act arguments
This weekend a fellow law professor highlighted on the CrimLawProf list-serve — yes, old lawprofs still use list-serves — this CNN article reporting on a high-profile criminal case in which a defendant might seek to claim that her alleged criminal conduct was not voluntary. Here are the details:
The Department of Justice will retry a woman whom prosecutors say disrupted Jeff Sessions' confirmation hearing for attorney general by laughing.
After rejecting a plea deal, Desiree Fairooz will again face charges of unlawful conduct for disrupting Sessions' hearing in January. According to court records, Fairooz rejected a deal offered by prosecutors that would have required her to plead guilty in exchange for a recommended sentence of time served.
Fairooz was detained after audibly laughing after Sen. Richard Shelby told senators at Sessions' confirmation hearing that the then-Alabama senator had a record of "treating all Americans equally under the law." Her laughter lasted seconds and Shelby continued with his speech without acknowledging the disturbance.
In a statement, Fairooz said she let out a spontaneous "reflexive noise" because Shelby's description was not true. "It was an immediate rejection of what I considered an outright lie or pure ignorance," she said.
Fairooz was previously convicted of a misdemeanor connected to disrupting the hearing, but a judge threw out the guilty verdict in July and ordered a new trial. The new trial is scheduled to begin on November 13.
This HuffPost article about the judge's decision to reject a prior jury verdict suggests (but does not make entirely clear) that the judge was troubled by the idea that laughter alone could serve as the basis for the charges here.
This case provides a useful real-world example of how there can be, in some unusual types of cases, opportunities for defendants to question whether the prosecution can satisfy the act requirement component of a proper prosecution. But it should also provide a reminder that these kinds of act issues will typically arise only in unusual types of cases.
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