Saturday, January 24, 2015
The story is in The New York Times:
Argentina’s government asserted on Friday that an ousted spymaster was involved in the murky events around the death of the prosecutor investigating the 1994 bombing of a Jewish center, with President Cristina Fernández de Kirchner’s chief of staff claiming that the prosecutor did not even write a complaint accusing her and top aides of subverting his inquiry.
. . .
In a letter this week, Mrs. Kirchner also wrote that Mr. Nisman had, unknowingly, been fed false information by Mr. Stiusso to sully the government as part of a plot that would end with his death. “The true operation against the government was the death of the prosecutor after accusing the president,” she wrote.
Lyle Denniston has this report at ScotusBlog, commenting on Friday's grants of certiorari:
Because the Court did not rewrite the questions spelled out in the inmates’ petition, it may be assumed that it intends to review all of them.
Paraphrased from legal language, these are the three questions:
** Is a three-drug execution protocol unconstitutional under the Eighth Amendment if the first drug cannot reliably put the inmate into deep unconsciousness and he may therefore suffer real pain while dying from the other two drugs’ effects?
** Will the Supreme Court keep intact its declaration in a 2008 lethal-injection case (Baze v. Rees) restricting postponement of lethal-drug executions unless there is a clear risk of severe pain when compared to what would result by using an alternative protocol?
** Must a death-row inmate, seeking to challenge a state’s lethal-injection protocol, prove that a better alternative protocol is available, even if the existing procedure violates the Eighth Amendment?
Friday, January 23, 2015
Jula Hughes (University of New Brunswick Faculty of Law) has posted From Abortions to Sex Work: What Decriminalization Can Teach Us About Stigma in Criminal Law on SSRN. Here is the abstract:
This paper pursues the idea that decriminalization and its aftermath deserve the attention of criminal law scholars. It presents the development of abortion law post-1969 and particularly following full decriminalization in 1988 in the Maritime provinces as a case study. Focusing on criminal law theory, decriminalization provides an opportunity to empirically test and doctrinally review the interaction between criminal law and stigma. The point of departure is the observation that abortion stigma has continued unabated after decriminalization. In the view of the Supreme Court, the application of criminal law produces social stigma. The Court also relies on the production of stigma as a distinguishing feature of true criminal law, contrasting it with regulatory law. This both suggests that criminal law is uniquely positioned to produce stigma and that regulatory law does not produce stigma. The experience of abortion decriminalization challenges both of these assumptions. Using social stigma theory, I consider the relationship of criminal law stigma to social stigma and its implications for the decriminalization and recriminalization of sex work.
Brandon Parker Ruben has posted Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
The attorney-client privilege protects confidential, legal communications between a party and her attorney from being used against her. It is among American jurisprudence’s most sacrosanct evidentiary principles. Unsurprisingly, federal prosecutors cannot eavesdrop on inmate-attorney visits or phone calls, or read inmate-attorney mail. Courts are currently divided, however, on whether or not the government can be prevented from reading inmate-attorney emails.
This Note explores the incipient body of case law that addresses whether federal prosecutors can read inmates’ legal email.
Wendy Lyon has posted Client Criminalisation and Sex Workers' Right to Health ((2014) 13 Hibernian Law Journal 58) on SSRN. Here is the abstract:
In recent years, Ireland has seen the emergence of a well-organised campaign to introduce legislation that criminalises the purchase, but not the sale, of sexual services. While a domestic consensus has seemingly formed in favour of client criminalisation, global health and human rights bodies have increasingly taken a contrary position: that neither party to a commercial sex transaction should be criminalised, at least where the parties are adults and the exchange takes place on a voluntary basis.
This paper sets out the international legal basis for this alternative consensus among actors in the international health and human rights sectors. It argues against client criminalisation from a human rights perspective, focusing on sex workers' right to health.
"Argument analysis: What exactly is a “routine” traffic stop, and should a suspicionless dog sniff be part of it?"
Mike C. Materni has posted The 100-Plus Year Old Case for a Minimalist Criminal Law (Sketch of a General Theory of Substantive Criminal Law) (18 (3) New Crim. L. Rev (July 2015, Forthcoming)) on SSRN. Here is the abstract:
Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal law should be seen as the extrema ratio, or option of the last resort. After laying out and defending the model, the article deals with issues related to its implementation, advancing an argument for the constitutionalization of substantive criminal law. The article argues that, on the basis of existing yet overlooked constitutional doctrine, criminal laws should be subject to strict scrutiny.
Kate Westmoreland and Gail Kent (Stanford University - Stanford Law School Center for Internet and Society and Stanford University - Stanford Law School Center for Internet and Society) have posted International Law Enforcement Access to User Data: A Survival Guide and Call for Action on SSRN. Here is the abstract:
Effectively accessing and using online evidence is a critical part of modern investigations and prosecutions, but also has significant implications for users’ privacy. The current system of international sharing of online data in criminal matters is a patchwork of domestic and international law that is slow, uncertain, and not well understood.
This paper provides an overview of the current system for foreign governments seeking user data from U.S.-based internet companies. After describing the way in which the system currently operates, it identifies problems with the system, and outlines the reform efforts that are beginning to emerge.
Thursday, January 22, 2015
Maureen Atwell has posted The Use of Social Media Evidence in Criminal Child Support Prosecutions (7 Phoenix L. Rev. 1 (2013)) on SSRN. Here is the abstract:
This article provides an overview of the prosecution of criminal child support cases, an explanation of what is required to use social media evidence in criminal prosecutions, and the role that this evidence plays in ensuring that children receive the support they deserve.
In this book review of Evan Mandery’s A Wild Justice, Meltsner situates the work in a long line of exemplary books where the author writes incisively about how the law and legal institutions work, using language suitable for the lay person. Meltsner finds that the book provides a firm background for considering the question of how the Supreme Court reached its decision inFurman v. Georgia, which in effect found the American death penalty unconstitutionally arbitrary, and the events which led to the subsequent death penalty regime instituted by Gregg v. Georgia four years later.
Wednesday, January 21, 2015
The story is at Jurist:
A request to St. Louis County Judge Maura McShane for a new grand jury review of the case against Ferguson police officer Darren Wilson for the fatal shooting of teenager Michael Brown has been denied [press release]. The request was made early in January by the NAACP's Legal Defense and Educational Fund(LDF) [official website] after evidence was released [JURIST report] showing why the grand jury declined to indict Wilson. The LDF's request alleged that the initial grand jury trial was insufficient due to errors by Prosecuting Attorney Robert McCulloch, including allowing a witness to provide false testimony and providing erroneous legal instructions to grand jurors. The letter [text, PDF] in response to the request, sent January 12, stated that the judge was prohibited from considering the request. The LDF announced their intention to seek further clarification into the matter.
Peter Margulies (Roger Williams University School of Law) has posted Detained Suspected Terrorists: Trial in Military Courts or Civilian Courts? (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
Military commissions, like detention in wartime, embody the Framers’ challenge in reconciling liberty and security. The U.S. Supreme Court has found that Congress’s war powers authorize establishment of military commissions. However, without proper constraints, military commissions pose tensions with individual rights and the Framers’ architecture of checks and balances.
Recently, the D.C. Circuit, applying a deferential plain error standard, rejected an Ex Post Facto Clause challenge to the military commission inchoate conspiracy conviction of Ali Hamza al Bahlul, a former aide to Osama bin Laden. The D.C. Circuit’s reasoning suggested that, under a less deferential de novo standard of review, inchoate conspiracy convictions for conduct prior to enactment of the Military Commissions Act of 2006 might pose problems, given the lack of recognition under international law for such charges.
Chris Jenks (Southern Methodist University - Dedman School of Law) has posted Civil Liberties and the Indefinite Detention of U.S. Citizens (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
Section 1021 of the 2012 National Defense Authorization Act provides for the indefinite detention of individuals deemed to be part of or substantially supportive of al Qaeda, the Taliban, and associated forces in hostilities against the United States or its coalition allies. Yet the Congress which drafted Section 1021 doesn’t know what its operative terms mean and the Executive Branch simultaneously claims the provisions are problematic yet meaningless and signs them into law. The result is uncertainty over the Executive Branch’s armed conflict detention authority, not on distant battlefields, but here in the United States. This article focuses on three troubling aspects of Section 1021: 1) Its unclear if Section 1021 allows the President to order the indefinite detention of a U.S. citizen or lawful resident alien captured in the United States. 2) Section 1021 upsets a long-standing balance within the U.S. criminal procedure system whereby law enforcement has to choose between protecting the public or prosecuting offenders. In short Section 1021 upsets the risk calculus implicit in New York v Quarles and the public safety exception. 3) There is an alarming lack of discussion on Section 1021 and the contemporary challenges of balancing freedom and security.
Craig Forcese and Kent Roach (University of Ottawa - Common Law Section and University of Toronto - Faculty of Law) has posted Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence on SSRN. Here is the abstract:
Since 2007, the Canadian government has repeatedly expressed interest in a terrorism ‘glorification’ offence, responding to internet materials regarded by officials as terrorist propaganda and as promoting ‘radicalization’. In the wake of the October 2014 attacks, this idea clearly remains on the government’s shortlist of responses. This article addresses the merits of such a criminal offence. It include analyses of: the sociological data concerning ‘radicalization’ and ‘radicalization to violence’; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and, the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment. This is especially true for Charter purposes, given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens or facilitates terrorism. We are also concerned that new glorification offences could have counter-productive practical public safety effects. Instead, we recommend modest amendments to the existing criminal law allowing the government to respond effectively to speech that is already criminal under existing Canadian terrorism or other criminal offences. Specifically, we favour a carefully constructed means of deleting (or at least ‘hiding’) the most dangerous forms of already criminal internet speech.
Tuesday, January 20, 2015
Eugene Volokh at The Volokh Conspiracy links to and excerpts this article, "[a] very interesting and thoughtful article . . . by the author of “In Defense of Women: Memoirs of an Unrepentant Advocate,” among other things sharply criticizing Harvard’s new sexual assault policy."
From The New York Times:
Police sentries guarded the federal prosecutor’s luxury high-rise building. His door on the 13th floor had been locked from the inside, and a gun with a spent cartridge was found on the floor near his body. There was no suicide note.
Just one day earlier, on Saturday, the prosecutor, Alberto Nisman,said, “I might get out of this dead.”
From the moment 10 years ago when he was assigned to investigate the 1994 suicide bombing of a Jewish center here that left 85 people dead, Mr. Nisman, an even-keeled lawyer, became entangled in a labyrinthine plot that he traced to Iran and its militant Lebanese ally, Hezbollah.
But it was only in the past week that Mr. Nisman, 51, leveled explosive accusations that top Argentine officials, including President Cristina Fernández de Kirchner, had conspired with Iran to cover up responsibility for the bombing as part of a deal that would supply Iranian oil to Argentina. Now, the mystery has deepened with the discovery of Mr. Nisman’s body on Sunday — the day before he was to testify before lawmakers about those accusations.
Willem-Jan Verhoeven (Erasmus University Rotterdam (EUR)) has posted Perspectives on Changes in the Right to Legal Assistance Prior to and During Police Interrogation (Erasmus Law Review, Vol. 7, No. 4, 2014) on SSRN. Here is the abstract:
The requirement of legal assistance prior to and during police interrogation constitutes one of the major changes in Dutch criminal proceedings during the past years. Legislation, policy, and practice in the Netherlands have been adapted to European case law, including the Salduz judgment, and the EU Directive, raising practical as well as fundamental questions about the implications of these developments. This issue of Erasmus Law Review is devoted to these implications. The contributions to this issue address these developments and their consequences from 1) a Dutch national perspective, 2) a European comparative perspective, 3) a youth perspective, and 4) a psychological perspective.
Elisabeth McDonald (Victoria University of Wellington - Faculty of Law) has posted From 'Real Rape' to Real Justice? Reflections on the Efficacy of More than 35 Years of Feminism, Activism and Law Reform (Victoria University of Wellington Law Review: Special Issue in Honour of Harriette Vine, First Woman Law Graduate 1913, Vol. 45, No. 3, p. 487, 2014) on SSRN. Here is the abstract:
In this article, the author develops her observations made during the 2012 Suffrage Lecture at the University of Otago. The article considers what law reform over more than 35 years has actually achieved, with a specific focus on the admissibility of evidence about a complainant’s previous sexual experience in a criminal case involving rape allegations. It concludes that although policy makers and legislators have been responsive to the concerns expressed by complainants about their treatment in the trial process, little real change to that experience has occurred. More fundamental work needs to be done by way of preventative education, challenging rape mythology and developing new processes to resolve allegations of sexual offending. The article emphasises that these are the challenges for the next 35 years.