February 21, 2008
Interesting Apprendi and Crawford Issues in NY Court of Appeals Case
The New York Court of Appeals on Tuesday decided People v. Leon, a case raising interesting issues at the intersection of Apprendi and Crawford. At the outset, I should reveal that the defendant was represented by the Center for Appellate Litigation, where I was appellate counsel for five years before entering academia, and also that counsel for defendant, Jonathan Kirshbaum, is a close personal friend of mine. Suffice it to say that my knowledge of the case, and therefore the information contained herein, is limited to what is revealed by the court's decision.
After conviction, the prosecutor sought to prove that Leon was a "persistent violent felon," meaning that he had been convicted of two prior violent felonies. At the persistent felony offender hearing, he contested one of the two prior felony convictions, claiming that it pertained to a different person altogether. In response, the prosecutor put into evidence a report by someone claiming to have compared the fingerprint cards for each of the persons with the two previous convictions, and concluding they were from the same person. Since Leon admitted the earlier conviction, then, the later conviction must be his as well.
This raises an obvious Crawford issue: did the report contain testimonial evidence? In a companion case, the Court of Appeals held that such a fingerprint analysis, when admitted at trial, constitutes testimonial evidence. Ah, but there's the rub. Here, it was admitted only in a sentencing proceeding. It appears to be an open question whether Crawford applies at a sentencing proceeding at which the defendant is entitled to jury findings made beyond a reasonable doubt, a la Apprendi, though I think the better view is that Crawford does apply in that a context.
But the New York Court of Appeals did not need to address that issue, holding that, here, the only contested issue of fact at the hearing pertained to "the fact of a prior conviction," falling within the Almendarez-Torres exception to Apprendi. Which raises the second interesting issue: does the "fact of a prior conviction" exception include the fact that it was the defendant who has that prior conviction? The court said that it does, which makes some sense in isolation: what else could "the fact of a prior conviction" mean other than that this defendant is the one with the prior conviction?
But in a larger sense, this case demonstrates what is wrong with Almendarez-Torres. The "fact of a prior conviction" carve-out is based largely on the notion that, pursuant to that prior adjudication, the defendant has already enjoyed the procedural protections of a jury finding of guilt beyond a reasonable doubt. But this logic breaks down as soon as the question becomes -- and it usually does, if there is ever a dispute -- is this defendant, currently before the court, the same one who previously enjoyed those procedural protections? No jury has ever made that critical finding, and none ever will because of Almendarez-Torres.
This, in addition to the fact that at least five sitting Justices believe the case was wrongly decided, is reason enough for Almendarez-Torres to be overruled [Mike Mannheimer]
February 20, 2008
SCOTUS Decides Danforth v. Minnesota
The Supreme Court yesterday decided in Danforth v. Minnesota that the States may apply new rules of federal constitutional law retroactively even if the Court itself has determined that retroactive application is unnecessary pursuant to Teague v. Lane. The vote was 7-2, with Chief Justice Roberts, joined by Justice Kennedy, dissenting. You can read the decision here.
To my mind, the majority has the better view of Teague as a judicial gloss on the federal habeas statute, rather than as a generalizable aspect of retroactivity. And the Chief Justice's beating of the drums of "uniformity" in dissent strikes me as an example of the faux-federalism often championed by his former boss in criminal cases: alternatively advocating uniformity or diversity, depending on which happened to further the pro-prosecution cause in a particular case.
But what is troubling about the decision is that, in several critical passages, it is highly formalistic, treating the law as an entity that "exists," and positing that the duty of judges is to discover rather than create the law. According to this notion, when the Court decided Crawford, it was simply telling us what the law always was: we just didn't know it. I had thought that this kind of thinking had been buried by Erie's dismissal of the idea that law is some "brooding omnipresence." More to the point, this seems inconsistent with the very notion established by Teague that there are any "new" rules of constitutional law. This reasoning, I think, explains the unusual line-up of Justices Scalia, Thomas, and Alito joining the four more moderate Justices. [Mike Mannheimer]
CrimProf Richard Leo Writes Police Interrogation and American Justice
University of San Francisco Associate Professor Richard Leo's new book examines how American police have developed sophisticated interrogation methods that rely on persuasion, manipulation, and deception to elicit confessions from criminal suspects.
While the idea of a false confession may seem inconceivable, the phenomenon of individuals confessing to crimes they did not commit has become increasingly common in this era of DNA exonerations. But why would an innocent person confess guilt?
Police interrogation techniques often provide the answer, writes University of San Francisco School of Law Associate Professor Richard Leo in his new book, Police Interrogation and American Justice (Harvard University Press, 2008). Hidden from public view and rarely recorded, false confessions are often induced by psychological coercion -- promising the suspect more lenient sentencing, for example -- during an interrogation session characterized by isolation, accusation, confrontation, pressure, and flat-out lies.
"Police can tell a suspect that they have their DNA and fingerprints, even if in fact they have nothing," Leo said. One solution, Leo says, is to mandate the recording of all police interrogations.
Leo's book chronicles more than a century of police interrogation in the United States, from the use of physical torture to the rise psychological manipulation and the lie detector test.
At the turn of the century, police used the so-called third degree. "This is not fiction," Leo said. "The use of rubber hoses and worse on suspects were common methods used to elicit a confession." The use of physical force in police interrogations began to be outlawed by states in the 1930s, a move that would eventually give rise to psychological manipulation as an alternative method to draw out confessions.
Leo's book is based on more than a decade of research, including a significant amount of primary research. He has observed hundreds of police interrogation sessions, attended police interrogation courses and seminars, analyzed police department interrogation manuals, and interviewed dozens of police interrogators and criminal justice officials. [Mark Godsey]
SCOTUS Will Hear Evidence Suppression
From NYTimes.com: In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.
Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.
The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.
In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.
Rest of Article. . .[Mark Godsey]
February 19, 2008
SCOTUS Rejects Wiretapping Case
From latimes.com: The Supreme Court today dismissed the first legal challenge President Bush's warrantless wiretapping order, but without ruling on any of the key issues.Since Congress is now fighting with the White House over new rules for wiretapping, the court may have chosen to stand aside from the controversy.
Lawyers for the American Civil Liberties Union had argued that this dispute went beyond whether the nation's spy agency could intercept international phone calls and e-mails. It raised the question of whether the president must abide by the law, they said.
The Foreign Intelligence Surveillance Act of 1978, a Cold War-era compromise, said the president could order secret wiretapping within the United States, but only with the specific approval of a special court.
But after the terrorist attacks of Sept. 11, 2001, President Bush issued a secret order to the
National Security Agency
that authorized it to intercept phone calls or e-mails coming into or going out of this country if there was a "reasonable basis" to believe there was a link to Al Qaeda. More significantly, the NSA did not need the approval of the FISA court to conduct this spying, according to the order.
When Bush's order was revealed in 2005, the president defended his decision as necessary for protecting against another attack within the United States. He also argued that the president, as commander in chief of the armed services, had the constitutional authority to act in the national interest, even if a law stood in the way.
The ACLU's lawyer urged the courts to take up the issue and rule that the law must be followed. "The president is bound by the laws that Congress enacts. He may disagree with those laws, but he may not disobey them," the ACLU said in the appeal to the Supreme Court. Rest of Article. . . [Mark Godsey]
Two of the Four Stolen Masterpieces Are Recovered
From washingtonpost.com: Two masterworks that were stolen from a Zurich art museum last week were found in good condition Monday in an unlocked car parked outside a nearby psychiatric hospital, Swiss police said Tuesday. Two other paintings are still missing, they said.
The recovered paintings -- Claude Monet's "Poppies near Vetheuil" (1879) and Vincent van Gogh's "Chestnut in Bloom" (1890) -- were found by a 56-year-old parking lot attendant who contacted police about 4 p.m. Monday. The attendant reported that there was a "suspicious white vehicle with two pictures on the back seat" at the University of Zurich Psychiatric Hospital, police said in a statement.
The two paintings, which Swiss police said have a combined value of about $63 million, were among four stolen on Feb. 10 by three masked men in a brazen daylight robbery at a private villa that houses the E.G. Buehrle Collection, a trove of French Impressionist and post-Impressionist masterpieces.
As a man with a pistol guarded the door and kept fearful employees lying in the ground, the other two grabbed four paintings worth $163 million from a nearby exhibit hall. The three then hauled the paintings to a white car parked outside and sped away.
It was Switzerland's largest-ever art heist. Rest of Article. . . [Mark Godsey]
SCOTUS Grants Cert. to Consider Expansion of "Objective Good Faith" Exception to Exclusionary Rule
The U.S. Supreme Court today granted cert. in Herring v. U.S. The question presented in the cert. petition is as follows:
Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.
The cert. petition, courtesy of the SCOTUS blog, can be found here. [Mike Mannheimer]
February 18, 2008
Phone Firms Seek Immunity
NPR.com: Director of National Intelligence Mike McConnell says phone companies that cooperated with government eavesdropping programs after the Sept. 11 attacks deserve retroactive immunity from civil rights lawsuits. But is the Bush administration, which is pressing Congress to extend the immunity, simply trying to avoid embarrassing disclosures? Rest of Article. . . [Mark Godsey]
CrimProf Brookbanks Discusses the Effects of New Zealand's Criminal Justice Reform Act
From stuff.co.nz.com: Auckland University CrimProf Warren Brookbanks recently discussed the surge in home detention sentences in New Zealand.
The Criminal Justice Reform Act came into force on October 1 last year and allows judges to sentence offenders directly to home detention.
Between October 15, when the first sentence of home detention was imposed, and February 1 this year, 592 people were sentenced to home detention. This is despite the courts not being fully operational over the Christmas period. Parole Board figures show only 762 prisoners were approved for a similar sentence of home detention in the 12 months to June last year.
Under the old rules the Parole Board was required to interview offenders who were granted leave to apply for home detention by a judge. The Parole Board no longer determines a prisoner's suitability. Judges would act on the same information as the board provided by the Community Probation Service.
CrimProf Brookbanks said the surge in home detention numbers was not surprising."One of the reasons is it's a novel sentence," he said.
"Previously home detention has been tacked onto the end of the prison sentence with the new act it's a sentence in its own right. And I think judges are keen to use it as far as possible to keep people out of jail."
Brookbanks said the trend would put pressure on the Community Probation Service and "could lead to some difficulties in terms of overseeing the vast numbers". Rest of Article. . . [Mark Godsey]
Cali Death Penalty Panel to Discuss Reasons for Reversals
From mercurynews.com: The California Supreme
Court last year overturned convicted killer James Hardy's 1984 death
sentence because a defense lawyer's "meager" effort representing him
undermined the chance of a fair trial. And just a few weeks ago, a
federal appeals court gave a reprieve to Earl Lloyd Jackson, one of the
state's longest-serving death row inmates, because of a prosecutor's
blunders during his 1979 trial.
The appellate rulings provide an all-too-common snapshot of
California's death penalty system. Shoddy representation and
prosecutorial miscues are two of the most common reasons that death row
inmates have had a better chance of getting their death sentences
reversed than of being executed.
A state commission examining California's death penalty system on
Wednesday will focus on those issues in the second round of hearings on
the subject. The California Commission on the Fair Administration of
Justice will hear from more than a dozen witnesses at the hearings,
which are being held in Los Angeles.
The commission hearing last month focused on broad concerns about the
state's death penalty, particularly the prolonged delays in state and
This week's hearing will zero in on problems with capital trials, which
have left more than 660 inmates on the state's death row. Rest of Article. . . [Mark Godsey]
From mercurynews.com: The California Supreme Court last year overturned convicted killer James Hardy's 1984 death sentence because a defense lawyer's "meager" effort representing him undermined the chance of a fair trial. And just a few weeks ago, a federal appeals court gave a reprieve to Earl Lloyd Jackson, one of the state's longest-serving death row inmates, because of a prosecutor's blunders during his 1979 trial.
The appellate rulings provide an all-too-common snapshot of California's death penalty system. Shoddy representation and prosecutorial miscues are two of the most common reasons that death row inmates have had a better chance of getting their death sentences reversed than of being executed.
A state commission examining California's death penalty system on Wednesday will focus on those issues in the second round of hearings on the subject. The California Commission on the Fair Administration of Justice will hear from more than a dozen witnesses at the hearings, which are being held in Los Angeles.
The commission hearing last month focused on broad concerns about the state's death penalty, particularly the prolonged delays in state and federal appeals.
This week's hearing will zero in on problems with capital trials, which have left more than 660 inmates on the state's death row. Rest of Article. . . [Mark Godsey]
New Article Spotlight: Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship
SSRN recently published Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Wake Forest University School of Law CrimProf Jennifer M. Collins. Here is the Abstract:
This Article is an attempt to begin a
conversation about the way children who have been victimized by their
parents are treated by the criminal justice system. I suggest that even
though as a society we are obsessed with our children, that obsession
has not translated into criminal justice policies that adequately
protect them. Parental offenders are systematically treated better by
the criminal justice system than are extrafamilial offenders, and we
need to grapple with whether that preferential treatment is
appropriate. I suggest that in many instances it is not, and I
therefore propose some principles that I hope provide some guidance for
the future formulation of criminal justice policy.
The Article unfolds in five Parts. Part I describes the romanticization phenomenon, drawing on sources both from law and from popular culture to demonstrate how we idealize the parent-child bond. As a result, we have come to believe that we can ordinarily rely upon the strength of that bond, without messy interference from the criminal justice system, to protect our children from harm. In other words, the belief that love, not law, is sufficient to protect our children permeates our approach to family violence.
Part II gives concrete examples of the adverse consequences of this phenomenon and demonstrates how this phenomenon has harmed children. I have chosen in this Part to focus on the most serious crimes that parents can commit against their children: the crimes of murder and rape. These crimes are the focus of the Article because the conduct at issue without question can be characterized as criminal; indeed, these crimes receive our greatest wrath outside the realm of the family. Unfortunately, the romanticization phenomenon affects the criminal justice system's treatment of even these most serious of crimes. This Part also includes a discussion of the parental discipline defense, both because defendants often raise that issue in child homicide cases and because I believe that our continued willingness to endorse the use of corporal punishment against children is contributing to the larger problems discussed in this Article.
Part III addresses some of the objections raised to using the criminal justice system more vigorously to protect children from parental violence. For example, perhaps parental offenders simply are less dangerous than stranger offenders. Other objections include the idea that we do not need the incentives of the criminal law to protect children because the fear of losing a child is incentive enough to induce appropriate parental behavior, or that parents who have lost a child are suffering enough and the infliction of additional punishment through the criminal justice system is simply gratuitous and cruel. This Part also grapples with the very real harms that greater use of the criminal justice system could potentially create, such as disruption of families or a disproportionate impact on families of color.
Part IV sets forth some principles that hopefully can better guide policymakers and practitioners in the future as they grapple with how best to protect our children from harm. This Part argues that if we are serious about protecting children as a class from physical injury, we must reorient our thinking about criminal justice policy toward the home, rather than away from it. This Part also addresses some of the particular issues related to motherhood and child abuse. Finally, Part V offers some brief concluding thoughts. [Mark Godsey]
Tech Tech Hosts "Convicting the Innocent"
The Texas Tech School of Law will be hosting a Criminal Law Symposium entitled "Convicting the Innocent" on April 3-4, 2008.
The panelists will include:
- Arnold Loewy (Texas Tech),
- Juan Melendez (wrongly convicted 18 year death row inmate),
- Michael Radelet (Colorado),
- Richard Roper (U.S. Attorney, Northern District of Texas),
- Moderator: Jancy Hoeffel (Tulane).