Monday, August 25, 2014
Through the mechanisms of the jury trial and popularly elected district attorneys and legislatures, our system of criminal justice is supposedly responsive to popular opinion. Yet this sensitivity to politics at times threatens the system's basic conceptions of due process. For example, the failure of state and federal government to adequately fund indigent defense services undermines the implicit assumption in our system that a battle between equal parties will produce the truth. Public support for "tough on crime" policies helped to fuel the nation's massive over-incarceration problem.
Although our nation's system of immigration courts is largely separate from our criminal justice system, some of the same inequities which run rampant in our criminal justice system have recently come to light in rural detention centers. Just last week, the ACLU, the National Lawyers Guild, the National Immigration Law Center, and the American Immigration Center filed suit in federal court alleging that immigration authorities in Artesia, New Mexico were engaging in a set of behaviors designed to compromise the due process rights of ten women and children by making it difficult for the individuals to file for asylum.
Some politicians including the current governor of Texas, seem eager to equate rapid deportation with "enforcing the law." Those who seek to use the law instrumentally as a tool of the state without regard for procedural guarantees risk reducing the law to a mere tool of the powerful. One wonders, how Mr. Perry would respond, if he was immediately jailed and tried on the charges in his recent indictment. Increasingly, the only individuals who get their day in court in this country are the ones who possess the power and means to enforce their rights. Perhaps, Mr. Holder, who recently created hope for the disempowered in Ferguson, Missouri might make Artesia, New Mexico his next stop.
Julia Preston, "U.S. Faces Suit Over Tactics at Immigrant Detention Center," NEW YORK TIMES, August 22, 2014.
Friday, August 22, 2014
I have been involved in the criminal justice system for more than forty years, and I feel as if there has never been a summer with so much going on in the public eye. Ferguson, Missouri, is the most recent and most alarming event, following so closely on the Staten Island chokehold case. These cases have focused serious attention on the police-citizen relationship that was front and center last year in the stop-and-frisk decision and the settlement of that lawsuit by the new New York City mayor. We have been witness to the unprecedented actions of the Brooklyn, New York Conviction Integrity Unit in the District Attorney’s office, and to the dismissal of erroneous convictions in that county. These dismissals have been followed by substantial financial settlements by New York City. The New York Times ran a series of editorials urging the de-criminalization of marijuana possession in some circumstances, and another editorial calling for revisions in the virtually-non-existent clemency process. Four state governors are either being tried, charged, or investigated. Rampant prisoner abuse has been exposed just as claims made by prisoners has spiked, and there is now dialogue about the excessive use and destructive results of solitary confinement. The entire capital punishment process has come under scrutiny because the drug companies who provide the lethal drugs to accomplish our executions are no longer willing to do so. There is increasing focus on our entire system of punishment because of international attention on our disgracefully large prison population. On an international level, we have also been witness to mass executions in Egypt and a long-awaited English investigation of the poisoning of a Russian journalist in London. Scotland abolished its long-standing and unique corroboration requirement. We were witness to an historic event: a Black, South African, and female judge presiding at the trial of a young white male, who happened to be an internationally acclaimed athlete.
Having been raised on a September to September calendar, and having continued with that conception of the “year” as a law professor, I am pausing to wonder what we will witness in the next twelve months.
Sunday, August 17, 2014
In October, I will be visiting China for the first time to appear at a Global Conference on Corruption in Jinan. I have come to corruption through the backdoor of writing about whistleblowing legislation in the U.S. and am still getting my feet wet. Building on my prior work, I am interested in exploring corruption law from the perspective of prosecutorial discretion. While public concern with corruption has grown world wide during the past twenty years, prosecution has been selective.
Right now, concerns with bribes in the health care and pharmaceutical industries have moved to the forefront. Just last week, Syria announced that it is investigating claims that representatives from GlaxoSmithKline bribed Syrian doctors to boost sales of medicines. These new allegations follow allegations in China last year in which four GSK executives allegedly evaded the company's internal control systems in an effort to boost sales.
As my research continues, I hope to discover why certain industries either seem prone to corruption or are prone to investigation.
Scott Campbell, "Glaxo China Bribery Allegations-Timeline," THE TELEGRAPH, May 14, 2014.
"GlaxoSmith Kline Faces Bribery Claims in Syria," THE TELEGRAPH, August 12, 2014.
Saturday, August 9, 2014
Many of us working in comparative law, especially those of us engaged in long-term qualitative research, rely on summer for getting intensive fieldwork done. I'm curious how others have spent their summers, what "the field" looked like this year, and the limits or potential you see in summer re-engagement with familiar terrain.
I spent my summer working in and on Ukraine. I've worked there for 19+ years and this year was like no other I've ever experienced. (Many thanks to Shawn and Lissa for keeping the blogfires burning when internet complications and data overload kept me from it. There was a lot to process.) I'll be blogging more about aspects of my long-term research and current developments in upcoming posts.
For now, suffice it to say that the war in Ukraine has permeated life far beyond the areas of active fighting in the east. The war is palpable in Kyiv [Kiev]. Even today (literally), Ukrainian friends wonder if open invasion of the eastern border is imminent. And in potentially related news, volunteers and city authorities in Kyiv today cleared out several hundred "maidanovtsi," the remainder of those occupying the central square (Maidan) in Kyiv since the inception of protests last November. Some in Kyiv saw these remaining hundreds of (almost all) men living 24/7 in a large tent encampment on the Square as protecters of the revolution that drove out a repressive government in February. Others saw them as legitimate heros whose PTSD has kept them clinging to a place where comrades were felled by their own government's bullets. Others, playing on the term for self-formed platoon, sotnya, together with the word for alcoholic, had started to refer to them as alcosotni, desperate opportunists -- otherwise underemployed or unhoused -- who moved in or hung on when other protesters moved on to civilian lives. And still others saw the tent encampment of the remaining maidanovtsi as a potential security threat, a Trojan horse in the center of Kyiv waiting to be filled by unmarked military forces of the ilk that invaded Crimea in March or eastern Ukraine in April. No wonder, then, that ordinary residents of Kyiv (including many who supported the Maidan protests at risk to their own lives) joined the mayor in cleaning out the tents and belongings and rubbish of the remainders today.
Thus evictions, occupations, perceptions of risk, claims to rights, discourses of inclusion and exclusion are preoccupying me these days. Gautam Bhan has a new paper out that speaks to some of these themes (and attests to the potential richness of long-term qualitative research in comparative law) in a very different context. Gautam looks at bastis, or evictions of poor illegal settlements, in Delhi. [The Hindustani word basti, Gautam explains, comes from its root basna (to settle) and means, quite literally, settlement. Colloquially, it invokes an image of an impoverished settlement often made of temporary or kuccha materials that reflects in its form the vulnerability of its residents.]
Cribbing from his introduction, "This paper’s core preoccupation is in many ways an old one: through what mechanisms do democratic polities produce, maintain and reproduce inequality? It grapples with this preoccupation, however, in a particular and emergent milieu."
Looking at case law that led to a seemingly relentless series of evictions of poor illegal settlements (colloquially known as bastis) in New Delhi over the last two decades, it asks: how is inequality reproduced within and through contemporary Indian urbanism?"
Occupations, evictions, invasions. What has occupied you this summer?
Bhan, Gautam (2014) The impoverishment of poverty: reflections on urban citizenship and inequality in contemporary Delhi. Environment & Urbanization. Vol 26 (2): pp. 1-14 DOI:10.1177/0956247814542391.
Sunday, August 3, 2014
During my most recent trip to Germany in July, I asked several German law professors whether there were any “wrongful convictions” in Germany. The widely agreed answer was “no.” That led me to wonder whether inquisitorial systems of justice are perhaps better structured to prevent wrongful convictions.
Given that the success of the inquisitorial form of justice has historically depended on securing the confession of the accused, the more important question may be whether the law adequately protects a suspect’s right to remain silent. Indeed, in the U.S., the use of the method of questioning suspects has led to false confessions- one of the main causes of wrongful convictions in this country.
During the recent Juris Diversitas conference in Aix-en-Provence, France, I sat on a panel with Michelle- Thérèse Stevenson, a Ph.D. candidate at the University of Limerick. Her research indicates that the right to remain silent is under fire across Europe despite the fact that Article 6(2) of the European Convention on Human Rights upholds a suspect’s presumption of innocence. According to Stevenson, in both Ireland and France, there are signs that a suspect’s presumption of innocence and right to remain silent are being eroded despite the fact that both the European Convention and the respective state constitutions/case law recognize the right.
Ireland features an adversarial system of justice. Although the presumption of innocence is not explicitly stated in the Constitution, it is said to flow from Article 38.1 of the Irish Constitution. Additionally, courts have recognized a constitutional right to silence. In France’s inquisitorial system, the presumption of innocence is well recognized throughout the law. Despite these protections, in both countries, according to Stevenson, the role of defense counsel is held in low esteem. In Ireland, recent case decisions have held that where a suspect relies on counsel’s advice to remain silent, a jury may draw an adverse inference from that silence if it believes that the reason for his or her silence is they are “sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give.” In France, following the ECtHR decision in Salduz v. Turkey, France enacted legislation that recognized suspects’ rights to have a lawyer present during questioning and reaffirmed the fact that police have a duty to inform suspects that they possess the right to remain silent. Still, there is some evidence to suggest that resistance to this new legislation exists.
In sum, there is definite reason for concern for the future of the right to remain silent in Ireland. In France, the picture is less clear.
Code procédure pénale . Art. 63-1
Code civil, article 9-1
Déclaration des droits de l’homme et du citoyen du 26 Aout, 1789
ECHR Art. 6(2)
Dimitrios Giannoulopoulos, “Custodial Legal Assistance and Notification of the Right to Silence in France: Legal Cosmopolitanism and Local Resistance,” Criminal Law Forum. September 2013, Volume 24, Issue 3, pp 291-329
Heaney v Ireland  IESC 1 IR 580.
Innocence Project, “The Causes of Wrongful Conviction,” Available online at: http://www.innocenceproject.org/understand/.
Irish Criminal Justice Act, 2007.
Pat McInerney, “Equality of Arms” Between the Suspect Interrogated in Garda Custody and the Gardaí? 2 Judicial Studies Institute Journal (2010), pp 1-33, citing  E.W.C.A. Crim. 784, at para. 51.
Salduz v. Turkey, 49 EHRR 421.
Tuesday, July 29, 2014
Several interesting comparative ethics issues were addressed at the International Legal Ethics Conference VI held at City University, in London, July 10-12. The presentations by ethicists from all over the globe were divided into simultaneous sessions on ethics and Education, Philosophy, Regulation, Culture, and Empirical Approaches that offered a comparative view of how different jurisdictions view the interplay of ethics and the law.
Some of the interesting comparative issues I heard discussed included the evolution and regulation of alternative legal business systems (e.g., the LegalZoom phenomenon), the developing role of corporate general counsel, and the impact on the internet on practice and regulation of lawyers. As a comparativist with a US/UK focus, I was particularly interested in a presentation on the discipline of solicitors in England (which seemed to indicate the disciplinary process focused on ‘low hanging fruit’ just as it does in most of the United States).
A particularly interesting presentation focused on the English Bar Council’s ethics training for young barristers and, in particular, on recent developments in handling vulnerable witnesses in criminal cases. To my mind, the comparison between the English procedures in place for dealing with vulnerable witnesses and the comparable procedures in the United States illustrates at least one basic difference between the two criminal justice systems: the degree to which the English system empowers judges and the US system empowers the adversaries.
Thus, in England, procedures for dealing effectively with vulnerable witnesses rest largely in the hands of the judge while in the United States the lawyers are the responsible parties. For example, at an early pre-trial hearing, an English judge will undertake to manage the case and set a strict time table for interviews of witnesses. The judge is likely to address and resolve issues of whether a vulnerable witness should testify behind a screen or have the assistance of an intermediary to report to the court on the witness’s vulnerabilities and abilities, and to support the witness. The court may even require counsel to write down the questions proposed for cross-examination and may limit the time allowed for cross-examination. On the morning of trial, the court, counsel, and any witness intermediary will conference to address a vulnerable witness’s capabilities and how to get the best evidence from the witness, e.g., by short, non-leading questions, delivered chronologically, in plain English, etc.
We in the United States certainly do not give our judges this sort of control. In fact, it can be a violation of the confrontation clause for a court to interfere in or limit cross-examination. In our adversary system, the judge certainly has a role in protecting a vulnerable witness and helping to elicit truthful and complete testimony, but we leave the process largely in the hands of counsel.
I couldn’t help wondering if the elite status of barristers in England – something we don’t have in the United States – also contributed to the decision to give so much control to the courts. Traditionally, barristers had very little to do with lay clients and worked in what were essentially guilds, accepted fees by way of a pouch in the back of their gowns and were considered to be skilled advocates rather than partisans. To this day, barristers can function as defense counsel and prosecutors in different cases. In that context, it is not surprising that there would be a willingness on the part of barristers to defer the ethically and practically messy process of dealing with vulnerable witnesses to the courts.
Saturday, July 26, 2014
Tuesday, July 22, 2014
Tuesday, July 8, 2014
A meeting of attorneys general of the UK, US, Canada, Australia, and New Zealand raises the complicated but extremely pressing question about how to restrict juror access to the internet. In the United States, proof that a juror sitting on a case has researched that case on the internet is presumptively prejudicial and requires reversal if not rebutted. As yet, however, we are not aware of any US juror being charged with a crime, or with contempt of court, for such behavior. In the United Kingdom, juror misconduct of this kind is usually dealt with as a contempt of court. A New Zealand law commission has proposed to make it a crime for a juror to disobey the standard instructions of a judge and research a case on line. Jurors could be charged and punished for researching details of a case they are trying, sharing details of that research with other jurors, and disclosing details of juror deliberations. The latter charge could finally put an end to jurors seeking publicity – or lucrative media contracts – after verdict.
Owen Bowcott, Attorney Generals to Debate Role of Juries in Internet Age, The Guardian (July 6, 2014).
Chambers v. State, 739 S.E.2d 513, 321 Ga. App. 512 (Ga. Ct. App. 2013).
State v. Abdi, 45 A.3d 29, 191 Vt. 162 (2012).
United States v. Bristol-Mártir, 570 F.3d 29 (1st Cir. 2009).
Thursday, July 3, 2014
Last week, in Riley v. California, No. 13-132 and 13-212, 2014 BL 175779, 2014 WL 2864483, 2014 U.S. LEXIS 4497 (U.S. June 25, 2014), the U.S. Supreme Court held that the police may not search a cell phone incident to arrest without a warrant. Two years ago, on April 24, 2012, the Brazilian Supreme Court reached the opposite conclusion when it held that Brazilian police do not need a warrant to access the cellphone agenda of an arrested suspect (H.C. 91.867). The case involved a defendant described as a “well-known contract killer,” who was accused of murdering a victim in broad day light in the state of Pará, Brazil in 2004. Upon his arrest, the police checked the agendas of the defendant’s two cellphones, which gave them evidence against the people who supposedly contracted the killing. The supposed contractors argued the unconstitutionality of that evidence as violating their right to not have their communications intercepted without warrant.
The Brazilian court upheld the constitutionality of the search, reasoning that the Brazilian Constitution (C.F.) protects telephone communications (art. 5º, XII) and the contents of a cell phone differently. The Brazilian Constitution states that telephone communications are inviolable, except when authorized by a judge in case of a criminal investigation (art. 5º, XII). Therefore, a warrant would be needed in case of wiretapping. However, the search of the cell phone was not the same as wiretapping. The police simply accessed the phone agenda to discover with whom the defendant had talked before the killing.
The court analogized to the situation in which police officers found a piece of paper with a phone number written on it in the defendant’s shirt pocket. In addition, the court considered the seriousness of the crime and the public’s interest in solving it to outweigh the right to privacy of the defendants. Justice Mendes also pointed to the theory of inevitable discovery, built by the United States Supreme Court in Nix v. Williams (1984), which would have been applied to the case, since the seizure of a cellphone is usually followed by access of all of the phone registers, not just the last calls.
The comparison between the two decisions is interesting. First, obviously, the US and Brazilian constitutions are different: the US constitution prohibits unreasonable searches and seizures, but the Brazilian Constitution prohibits intercepting communications. Accordingly, the United States and Brazilian courts seem to analyze the scope of privacy protection differently. In addition, this kind of Brazilian Supreme Court decision is not binding on other courts, allowing the Court to focus on the specific facts of the case rather than establishing a general rule.
Factually, too, the cases are different. The Brazilian case involved a search of a cell phone in 2004, at a time when cell phones contained much less personal data than they did at the time of the Riley search. And, to the extent that both courts balance the public’s interest in solving crime against the privacy rights of the defendant, the Brazilian case involved a heinous murder for hire while the Riley case involved narcotics. The Brazilian court focused specifically on the seriousness of the crime.
In either country, predictions are difficult. As technology evolves, so too will the issues surrounding seizure of a variety of items, including laptops and the like. And as we continue to publish personal information extensively in places like Facebook, Twitter and Instagram, our reasonable expectations of privacy may change. It will be interesting to see how the jurisprudence follows these developments.
**This post was co-authored by Rafael Wolff, a Federal Judge in Brazil and an SJD Candidate at Pace University School of Law.
Tuesday, July 1, 2014
When the U.K. relinquished control of Hong Kong to China in 1997, China promised to protect the island’s autonomy. Indeed, Hong Kong’s Basic Law, which is based on the common law, grants this special administrative region a high degree of autonomy with respect to local issues. Specifically Article 27 of Hong Kong’s Basic law states that “residents shall have freedom of speech, of the press and of publication; freedom of association, assembly, of procession and demonstration. . .”
Perhaps unsurprisingly, those freedoms are now under fire as mainland government has chosen to gradually rewrite the rules. On June 10th of this year, the Chinese cabinet issued a white paper that declared that “[the high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. . .” According to an article in the New York Times, the document also suggested that judicial appointments would now be subjected to a political litmus test which critics suggest will undermine the rule of law.
In response to the white paper, local officials sponsored an unofficial poll to gauge support for changing the process whereby the city-state’s next top political official will be chosen in 2017 to a more democratic process. That poll gained over 800,000 votes over a ten day period.
Still, a public opinion poll released yesterday shows a more ambivalent attitude towards the current relationship with China. While 33% of the respondents viewed the central government’s policies negatively, 31% possessed a positive attitude. Yet the poll revealed a stunning age divide as anti-government attitudes were prevalent among the younger generation as 52% of respondents aged 18 to 29 had a negative view of the central government’s policies.
Earlier today however, “tens of thousands of people converged on Hong Kong’s Victoria Park for an annual protest march” while only a handful of individuals showed up for a pro-China rally. During the march, activists from the League of Social Democrats burned a copy of the white paper and called for the Hong Kong’s Chief Executive to be sacked. It remains to be seen what message the Chinese government will draw from the large size of the demonstration crowd. In 2003, after a crowd of 500,000 turned out to protest a series of anti-subversion laws, the government scrapped the proposed legislation.
It remains to be seen how the Chinese Cabinet will respond to the public demonstrations.
ReferencesMichael Forsythe, “Sparse Turnout at Pro-China Rally in Hong Kong,” The New York Times, July 1, 2014. Available online at: http://sinosphere.blogs.nytimes.com/2014/07/01/sparse-turnout-at-pro-china-rally-in-hong-kong/ James Pomfret and Grace Li, “Passions Run High as Hong Kong Marches for Democracy,” Reuters Online, July 1, 2014. Available online at:http://www.reuters.com/article/2014/07/01/us-hongkong-protests-idUSKBN0F632A20140701. Austin Ramzy, “Hong Kong Survey Finds Record Dissatisfaction with Beijing,” The New York Times, July 1, 2014. Available online at: http://sinosphere.blogs.nytimes.com/2014/07/01/hong-kong-survey-finds-record-dissatisfaction-with-beijing/?ref=world
Alan Wong, “Beijing’s ‘White Paper’ Sets Off a Firestorm in Hong Kong,” New York Times, June 11, 2014. Available online at: http://sinosphere.blogs.nytimes.com/2014/06/11/beijings-white-paper-sets-off-a-firestorm-in-hong-kong/
Tuesday, June 24, 2014
Thursday, June 19, 2014
Readers may be interested in what promises to be a fascinating conference taking place in London on July 10-12, the sixth biannual International Legal Ethics Conference VI. Here is the description from the website:
Legal professions around the world are operating in a period of rapid economic, social and technological change. Consumerism, the decline of self-regulation, the intensification of globalisation and the growth of international legal practice, call into question the traditional role of legal professions in society. They also challenge the manifestation of legal professionalism in the organisation, culture and regulation of lawyers. Regulators are reconsidering their functions and approaches in relation to legal education, as seen in the US's ABA Task Force Report and the UK's LETR Report.
The sixth bi-annual conference of the International Legal Ethics Association takes place at a critical time in the evolution of legal ethics. The conference is built around short, paper presentations organised in streams. The streams are:
1. Culture, Technology, Ethics and Society
2. Empirical Approaches to Legal Ethics
3. Philosophy and Legal Ethics
4. Regulation of the Profession(s)
5. Ethics and Legal Education.
The conference is hosted by The City Law School.
This conference has attracted a fabulously impressive list of panelists, many of whom are leaders in the US ethics field. It promises to be a must for comparative ethicists and US ethics professionals.
Thursday, June 12, 2014
The UK Court of Appeal modified a lower court ruling that had allowed the defendants in an upcoming terrorism trial to remain anonymous and to hold the trial in secret on the grounds of national security. We reported on that lower court decision last week. The court of appeal has now held that the two measures combined - anonymity and secrecy - were too much and that it was “difficult to conceive of a situation where both departures from open justice will be justified.” It held that the defendants should be named – and they were (Erol Incidal and Mounir Rarmoul-Bouhadjar) – and that some of the evidence but not all could be taken in secret. At the risk of setting precedent that could be interpreted as a broad authorization for secrecy in criminal cases, Lord Justice Gross stressed that the case itself “is exceptional.”
The court also held that a small number of journalists from the organizations that had brought the appeal would be allowed to attend all but the most sensitive evidentiary parts of the trial. Interestingly, however, these reporters would not be allowed to take their notes out of the courtroom or to do any reporting on the case until an existing reporting ban on the case is lifted.
Part of the problem with the case is that the proof in support of the government’s request for secrecy has itself been secret, so it is impossible for the public to evaluate the bona fides of the claim that secrecy is necessary. That situation remains. Nevertheless, the court was concerned and seemed to accept the government’s position that if it did not have some secrecy it would have to dismiss the case. We should follow the trial to see how the modified order is implemented, since, despite the court’s concern about the uniqueness of this case, whatever occurs will be novel and precedential, at least for serious terrorism cases.
David Brown,Terror Suspects Named in Secret Trial, The London Times, June 12, 2014. www.thetimes.co.uk/tto/news/uk/crime/article4116784.ece
Tuesday, June 10, 2014
Having just completed a series of public terrorism trials in New York, it is interesting to look at the United Kingdom as it struggles to hold a terrorism trial in complete secrecy later this month. A trial level judge has granted the government’s request to hold the terrorism trial in secret on the grounds of ntional security. In this case, “secret” means the defendants will not be named, the proceedings will not be open to the public, and the media cannot publish details about the defendants. While defendants in the United Kingdom sometimes are not named in family or sex abuse matters, for the protection of the defendant (not at the government’s request) and while some proceedings are held in camera, the combination of anonymous defenadnts and secret proceedings is unprecedented. Apparently, UK judges have the discretion to order closed trials in the interests of justice. Prosecutors contend that undisclosed national security reasons would dictate dropping the charges if the trials are not held in secret.
In the United States, this is unprecedented. In fact, with the exception of juvenile proceedings, a US court would never require that a defendant's name be withheld from publication for his or her own protection. Although US prosecutors are given fairly extensive leeway in a terrorism case to withhold discovery on grounds of national security, the trials at least have been public – at least those trials that have been held (remember Guantanamo, where detainees have not been charged or tried). And there is probably something gratifying and calming to the public about being able to follow the evidence in the media as it lead up to the verdict. Transparency helps democracy function, especially at this time of what feels like maximum distrust of government.
While the Brits seem culturally to trust their government more than Americans, and since they have no written First Amendment of Sixth Amendment to govern the public trial/free press controversy, the court’s decision to allow a secret trial may be upheld. On the other hand, the UK is still smarting from what many view as a wrongheaded government decision to follow President Bush into Iraq. That decision was in large measure based on undisclosed information. The court of appeal will have to weigh the public interests involved when it decides the case during the next week or so.
If a secret trial is allowed, Britain must be careful. It has a long, sad and still fresh experience with domestic terrorism and in accommodating its criminal procedure to terrorism’s demands. Several changes in criminal law and procedure that were originally considered necessary and adopted in the Diplock Northern Ireland courts have subsequently been applied to the mainstream criminal process (for example, making permissible a negative inference from silence). Conducting trials in secret should not be one of them.
Sean O’Neill, Secret trial damage “would be irreversible,” London Times, June 6, 2014, http://www.thetimes.co.uk/tto/law/article4110320.ece
Sean O’Neill, Move to hold terrorist trial in secret is challenged, London Times, June 4, 2014, http://www.thetimes.co.uk/tto/news/uk/crime/article4108972.ece
Sunday, June 8, 2014
JoAnne Sweeny, University of Louisville Brandeis School of Law, has posted an interesting paper on SSRN. In "Creating a More Dangerous Branch: How the United Kingdom's Human Rights Act Has Empowered the Judiciary and Changed the Way the British Government Creates Law," Sweeny argues that, by enacting the Human Rights Act in 1998, the legislature granted new powers of interpretion to the judicial branch and thereby strengthened the judicial and legislative branches at the expense of executive power. While this thesis echoes separation of powers debates in the United States, it is a relatively new development in the U.K. where the country's parliamentary form of governance has traditionally favored the executive branch's strong reign over the legislative process. It would be interesting to compare the trajectory of the post Human Rights Act changes in the U.K. with the increasing power of Germany's Constitutional Court where the Court's expanding power has developed over a several decade period.
Sweeney's abstract reads:
Power struggles between government branches are nothing new. What is new is how those struggles have recently changed in the United Kingdom as a result of the constitutional reforms enacted by Tony Blair and the Labour Party. In addition to incorporating fundamental human rights into the British legal system, the enactment of the Human Rights Act 1998 resulted in the alteration of the balance of power between the three British government branches, with the judiciary and legislature achieving substantial gains in influence and independence. An
unintentional side-effect of these changes is that the British government structure now appears to have a more American style with a stronger separation of powers. More specifically, the British legislature and judiciary have gained new powers when human rights laws are implicated, which place these branches on more equal footing with the traditionally dominant executive branch. As this article shows, when creating or altering laws that involve human rights, government branch interactions are noticeably different, and the legislature and judiciary now have more of an impact on which laws will stand the test of time.
The paper may be found online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445533
On another note, as summer rolls around, expect our blog posts to become less frequent as all of us will be doing a bit of travelling.
Monday, June 2, 2014
Last week Ira Rubinstein (NYU), Gregory Nojeim (Center for Democracy & Technology), and Ronald D. Lee (Arnold & Porter) posted a timely article on SSRN entitled "Systematic Government Access to Personal Data: A Comparative Analysis."
From the abstract:
Documents describing programs involving large-scale government access to telephony and Internet metadata have been declassified in response to disclosures of former National Security Agency contractor Edward Snowden.
Relying on analysis of the law and practices in 13 countries, this Article develops both a descriptive framework for comparing national laws on surveillance and government access to data held by the private sector, and a normative framework based on factors derived from constitutional and human rights law.
In most, if not all countries studied, the law provides an inadequate foundation for systematic access, both from a human rights perspective and at a practical level. Systematic surveillance programs are often not transparent and based on secret governmental interpretations of the law, and there is often inconsistency between published law and government practice.
The article calls for a robust, global debate on the standards for government surveillance premised on greater transparency about current practices; international human rights law provides a useful framework for that debate.
Thursday, May 29, 2014
A recent extradition battle in the United Kingdom brings a new perspective to the unique plea bargaining process in the United States. Paul and Sandra Dunham have been charged in Maryland with an alleged fraud to the tune of $1 million. They are UK citizens awaiting extradition who recently attempted suicide by taking an overdose of drugs rather than be extradited to the United States.
The Dunhams’ extradition is sought under the 2003 Extradition Treaty between the US and the UK. That Treaty has been criticized in the UK as one sided for several reasons, including the right to extradite UK citizens for offenses committed against US law, even if those offenses were committed in the UK, for which there is no reciprocal right, and a reduction in the proof required in some cases from prima facie evidence to reasonable suspicion. There is also a concern that UK citizens extradited to the US will lose their entitled to legal aid that would otherwise be available if they were prosecuted in the UK.
But, according to counsel for the Dunhams, extradition is being resisted on the ground that the UK is “forcibly sending them to American to face trail in a justice system where plea agreements are effectively forced upon people.” The argument seems to be twofold: 1) that because of the way plea bargaining takes place in the United States, and the fact that 98% of cases result in guilty pleas, the Dunhams will effectively be required to admit their guilt rather than assert their innocence; and 2) the plea bargaining process produces unjust outcomes in the form of excessive prison sentences. It should be noted that the Dunhams are in their 50s and vehemently deny their guilt.
Interestingly, a similar claim was made by David McIntyre, an ex-soldier who was accused of overcharging a US peace group for a security contract. He claimed he was afraid he would not be able to clear his name if he were extradited because, “In the American judicial system you’ve got a plea bargain system and they’ll sit a piece of paper in front of me and tell me I can either do 20 years hard time in the penitentiary or cough to it and do three years soft time.” As of this writing, McIntyre has been granted a new appeal based on medical evidence that he suffers from PTSD, and has not been extradited.
This week, the European Court of Human Rights dismissed their application.
Yes, the kinds of “we can’t get a fair trial if extradited” claims that routinely are made in extradition proceedings focus on court proceedings in less-evolved judicial systems in other countries and to the very real potential for interference with an accused’s right to a fair trial. But the Dunhams’ claim raises troubling issues about the US plea bargaining process. Compared to the UK, prosecutors in the US have virtually unfettered and unguided discretion in the plea bargaining process. They also have access to a huge array of potential charges and significantly longer permissible sentences, including harsh mandatory minimum sentences. If aggregated, the sentence Mr. Dunham faces on the thirteen counts of his indictment would subject him to 390 years’ imprisonment, and for Ms. Dunham’s eight counts her sentence could be 240 years. While of course the sentence they would receive after a conviction by plea or verdict would not be anywhere near those lengths, those numbers do drive home the point. And very significantly, in contrast to the strict rules and relatively low sentences that govern sentence reductions for guilty pleas in the UK, the sentencing differentials in the US between pleading guilty or going to trial are enormous. These arguments have been made and rejected in the United States, but perhaps the international awareness, which is recurrent and compelling, will begin to resonate in extradition proceedings. As noted in an earlier post, the Europeans have become much more vocal in their criticism of the US death penalty process. Maybe we will start to hear some international discourse about the unfairnesses in our guilty plea system.
Human Rights Joint Committee (22 June 2011), “The UK’s bilateral extradition treaties: US-UK Extradition Treaty 2003.” http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15608.htm.
David Barrett, Paul and Sandra Dunham Face Extradition After Strasbourg Refuses to Intervene, The Telegraph, 5/29/14, http://www.telegraph.co.uk/news/uknews/crime/10787454/Paul-and-Sandra-Dunham-face-extradition-after-Strasbourg-refuses-to-intervene.html.
David Brown, British Suicide Pact Couple Fear Plea Bargain as They Face Extradition to the US, The Times of London, 5/27/14, http://www.thetimes.co.uk/tto/news/uk/crime/article4096028.ece.
Felicity A. Morse, David McIntyre, Ex-Soldier, Says he Will Kill Himself if Extradited to the US, The Huffington Post, 4/27/13, http://www.huffingtonpost.co.uk/2013/04/26/david-mcintyre-threatens-suicide-extradited-us_n_3161829.html.
Lissa Griffin, International Spotlight on the Death Penalty, Comparative Law Prof Blog (May 1, 2014), http://lawprofessors.typepad.com/comparative_law/2014/05/international-spotlight-on-the-death-penalty.html.
Tuesday, May 27, 2014
The recent “day of retribution” in California which left six individuals dead and more than a dozen more injured has again brought to the forefront our society’s inability to identify and prevent mass shootings. Despite the fact that the shooter’s mother voiced concerns about her son’s behavior with his therapist and the therapist contacted authorities, law enforcement officials found insufficient grounds to justify an involuntary commitment. Apparently, the officers who visited the suspect never bothered to even search his apartment. Had they done so, they would have found his arsenal as well as his writings and plans of the attack. Ironically, California is one of 27 states where therapists are bound by a mandatory duty to warn third parties of threats to their safety.
The United States has some of the most robust “duty to warn” laws among Western European countries. Although there is a recognized common law exception in the U.K. to the duty of confidentiality, the law has stopped short of imposing a duty to warn the public of a potentially dangerous patient. In the aftermath of the highly publicized case, W. vs. Egdell, in 1990, the U.K.’s General Medical Council issued this policy statement:
‘If you remain of the view that disclosure is necessary to protect a third party from death or serious harm, you should disclose information promptly to an appropriate person or authority. Such situations arise, for example, where disclosure may assist in the prevention, detection, or prosecution of a serious crime, especially crimes against the person, such as abuse of children’.
Other countries however impose less robust duties on mental health professionals. For example, in New Zealand, psychiatrists possess no formal duty to warn the public of potential dangers posed by their patients. At the same time, the lack of a formal duty is not an absolute license to protect patient confidentiality at all costs as both psychiatrists and institutions do possess a duty to safeguard potential victims from foreseeable harm. In France, as well, practitioners possess no legal duty to warn the family and relatives of a patient’s potential dangerous. In addition, although French law does permit individuals to be held involuntarily against their will for mental health reasons, there is a robust procedural process in place which is designed to protect the patient’s confidentiality and freedom.
The first reaction of the media to mass killings seems to focus on finding some person or law that is at fault for the carnage. In this area of the law, the United States appears to be out in front in trying to set up a legal framework to head off a castrophe. The solution likely lies in the direction of more efficient data sharing. But if authorities were able to improve their ability to collect this type of data, it might not only raise privacy issues, but resource issues as well. In our tax-phobic environment, there is currently little political will to fund an expansion of mental health resources.
Adam Nagourney & Erica Goode, “Limits to Law and Information Sharing, Despite Gunman’s Danger Signs,” New York Times, May 26, 2014.
Associated Press, “Elliot Rodger’s Family Tried to Intervene Before Deadly Rampage,” FOX NEWS, May 27, 2014.
Alan R. Felthous, Roy O'Shaughnessy, Jay Kuten, Irène François-Pursell, Juan Medrano, “The Clinician's Duty to Warn or Protect: In the United States, England, Canada, New Zealand, France and Spain,” The International Handbook of Psychopathic Disorders and the Law: Laws and Policies, Volume II, pp. 75–94, 2008.
Colin Gavaghan, “Dangerous Patients and Duties to Warn: A European Human Rights Perspective,”14 Eur. J. Health L. 113 (2007).
Thursday, May 22, 2014
The mental examination of Oscar Pistorius and the continued news of mass shootings in the United States focus attention on the defense of mental disease or defect. In a previous blog we noted the procedural complications of referring a defendant for a thirty-day psychiatric examination during trial. Can this all be the consequence of his expert’s claim at trial that he suffered a generalized anxiety disorder following the amputation of his lower legs and a difficult childhood? Even the defense expert testified that this disorder did not mean he could not distinguish between right and wrong. Why is the question of his ability to understand the difference between right and wrong and to conform his conduct even being pursued? At some point, we are likely to be treated to headlines that say something like “Pistorius knew what he was doing!” or “Pistorius flunks insanity test,” or something equally misleading, irrelevant, and prejudicial. Alternatively, if the doctors find that he did not pass the test, will the defense now seek to disprove that to avoid indefinite commitment in a mental institution?
Another interesting development is a report of research from the University of Glasgow about serial or mass murderers. That study concluded that 28% of such killers suffered from Autism Spectrum Disorder (ASD), 21% of such killers suffered a head injury in the past, and of those with ASD or head injury, 55% had experienced some psychosocial stressors in the past. To be sure, this is important research. We will have to watch to see if or how it makes its way into court in the context of criminal responsibility, criminal procedure, and sentencing.