CrimProf Blog

Previewing the Coming Term (Part 3): McDaniel v. Brown

[This is the third in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-559
Case: E.K. McDaniel, Warden, et al., v. Troy Brown
Oral Argument Date: originally scheduled for October 13, 2009, but subsequently removed from argument calendar

Issue:  Whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).

Factual and Procedural History:  In 1994, Troy Brown, respondent, was arrested for the sexual assault of a nine-year-old girl in Carlin, Nevada.  At trial, the prosecution presented testimonial evidence from a DNA expert, Renee Romero, who testified that, among other things, there was a 99% chance that Brown was the assailant.  Brown was subsequently convicted on several counts of sexual assault and one count of child neglect.

Brown appealed to the Nevada Supreme Court, arguing, among other things, that the evidence was insufficient to sustain his conviction.  The Nevada Supreme Court vacated the child neglect charge and remanded the case for resentencing on the second sexual assault count.  The trial court re-sentenced Brown to life with the possibility of parole on both counts, to run consecutively.  Brown again appealed to the Nevada Supreme Court, which rejected his appeal.  Brown filed a state petition for post-conviction relief, which was denied by the state court.

In 2004, Brown filed a federal petition for writ of habeas corpus, arguing violations of due process and ineffective assistance of counsel.  The district court granted Brown’s petition, permitting Brown to expand the record by providing testimony of a professor who directly discredited Romero’s initial DNA testimony.  The district court concluded that, in light of this new evidence, Romero’s testimony was unreliable, and absent it no rational trier of fact could conclude beyond a reasonable doubt that Brown was guilty of each and every element of the offenses with which he was charged. 

The Ninth Circuit affirmed, finding the conflicts in the evidence “simply too stark for any rational trier of fact to believe that [Brown] was the assailant beyond a reasonable doubt, an essential element of any sexual assault charge.”  Therefore, according to the Ninth Circuit, the Nevada Supreme Court’s decision was an “unreasonable application” of the Jackson v. Virginia (1979) standard, which stands for the proposition that a conviction must be upheld if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Summary of Petitioner’s Argument:  Petitioner argues the Nevada Supreme Court’s examination of Brown’s sufficiency-of-the-evidence claim under the Jackson standard was neither contrary to clearly established federal law nor an objectively unreasonable application of Jackson.

According to petitioner, the Ninth Circuit erroneously determined that the Nevada Supreme Court did not apply the Jackson standard and that, therefore, its adjudication of Brown’s claim was “contrary to” clearly established federal law.  Petitioner argues that evidence not presented to the jury may not be considered in any application of the Jackson standard and that, accordingly, the Ninth Circuit erred.

Moreover, petitioner argues that resolving the case in favor of Brown would “have the effect of making a state court trial a mere formality, a warm-up for proceedings in federal court, and would permit federal courts to usurp the province of the jury to resolve conflicts, determine the credibility of the evidence, the reliability of the evidence and the weight to give evidence.”  Consequently, according to petitioner, federal habeas courts are required to determine whether the State court’s adjudication of a sufficiency-of-the-evidence claim was an objectively unreasonable application of clearly established federal law, not merely erroneous.  Here, the Ninth Circuit and the federal district court failed to abide by such a standard. 

Summary of Respondent’s Argument:  In respondent’s view, the constitutional error in this case is “clear and fundamental.”  According to respondent, the prosecutor in this case obtained a guilty verdict “despite demonstrable evidentiary shortcomings in the case against [him].”  Consequently, respondent argues these errors rendered the trial fundamentally unfair and were in violation of his right to due process.  According to respondent, habeas relief was plainly justified in light of the erroneous use of unreliable DNA testimony to achieve a guilty verdict. 

Interestingly, respondent claims the Ninth Circuit incorrectly addressed this issue under the Jackson standard rather than a harmless error analysis.  Respondent concedes this case cannot be decided pursuant to Jackson.  However, respondent argues that under either the standard applied by the Ninth Circuit or the harmless standard, respondent’s petition for a writ of habeas corpus was properly granted.  In the alternative, respondent asks for the case to be remanded to the Ninth Circuit for analysis under the harmless error standard.

Brief for Petitioner E.K. McDaniel, Warden, and the Attorney General of the State of Nevada

Brief for Respondent Troy Brown

Reply Brief for Petitioner E.K. McDaniel, Warden, and the Attorney General of the State of Nevada

Wexler on Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering

David B. Wexler  (University of Arizona - James E. Rogers College of Law) has posted Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering on SSRN. Here is the abstract:

This brief essay,prepared for a Chapman law school conference on therapeutic juriprudence and problem-solving courts, suggests that a therapeutic jurisprudence approach to criminal lawyering is consistent with notions of zealous advocacy, and that such an approach to criminal lawyering also fits nicely within an emerging framework of 'relationship-centered' lawyering. Relationship-centered lawyering is consistent with client-centered lawyering in exactly the same way that therapeutic jurisprudence lawyering is consistent with zealous advocacy: both approaches add a rich,interdisciplinary, and holistic ingredient to the traditional approach. Moreover, in the criminal law context, a relationship-centered approach will encourage therapeutic jurisrudence thinking to examine the role of the prosecutor, an area that has thus far not attracted sufficient academic attention. The present essay provides some examples from the prosecutorial arena and urges further development of therapeutic jurisprudence studies along those lines.

Previewing the Coming Term (Part 2): Johnson v. United States

[This is the second in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No: 08-6925
Case:  Johnson v. United States
Oral Argument Date:  October 6, 2009

Issue:  Whether a prior state conviction for battery is, in all cases, a “violent felony” under the federal Armed Career Criminal Act (“ACCA”) even when that offense does not have as an element the use or threatened use of physical force.

Factual and Procedural History:  Petitioner, Curtis Darnell Johnson, was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g).  He was subsequently sentenced under the ACCA (18 U.S.C. § 924(e)) because he had three prior convictions for violent felonies.  One of his prior violent felony convictions was for a battery in Florida, which would have been a misdemeanor if not for a state law enhancing it to a felony because of a prior battery conviction.

Petitioner appealed, contending the felony battery under Florida law was not a “violent felony” for the purposes of the ACCA.  The 11th Circuit rejected his argument, affirming his conviction and ruling that the elements of the crime of battery satisfied the definition of “violent” under the ACCA.  Petitioner filed a petition for certiorari, which was granted on February 23, 2009.  Oral argument has been scheduled for October 6, 2009.

Summary of Petitioner Argument:  According to Petitioner, a battery committed by the slightest non-consensual touching does not constitute a “violent felony” for the purposes of the ACCA.  A violent felony under the ACCA must be one that has as an element the use, attempted use, or threatened use of physical force against the person of another.  In this case, Petitioner argues the battery of which he was previously convicted does not fit within this definition, that the 11th Circuit’s ruling should therefore be reversed and remanded for re-sentencing.

In the end, petitioner argues that because the Florida Supreme Court has held that simple battery does not contain “the use or threat of physical force” as an element of the crime, the Supreme Court should hold that the ACCA was improperly applied to his federal sentencing, and remand the case.

Summary of Respondent Argument:  According to Respondent, the 11th Circuit correctly concluded that Petitioner’s conviction for felony battery in violation of Florida law qualifies as a “violent felony” under the ACCA because battery has as an element the use of physical force against the person of another.

Respondent argues that Petitioner’s statutory interpretation of the ACCA’s definition of “violent felony” limits the meaning of “physical force” to violent and aggressive force, which is contrary to the intention of Congress.  In the end, according to Respondent, Petitioner’s assertions rest on an erroneous assumption – a “violent” crime must necessarily involve the use of “violent,” and potentially injurious, force.  

Additionally, Respondent argues that even if the Court were to accept Petitioner’s restrictive reading of the applicable statutes, the proper course would not be to reverse the judgment of the court of appeals, but rather to vacate the judgment and allow the court of appeals to consider whether, as the district court held, felony battery qualifies as a “violent felony” under the applicable statutory provisions.

Brief for Petitioner Curtis Darnell Johnson

Brief for Respondent United States of America

Walen on Crime, Culpability and Moral Luck

Alec D. Walen  (Institute for Philosophy and Public Policy) has posted Crime, Culpability and Moral Luck: Comment on Alexander, Ferzan and Morse (Law and Philosophy , Forthcoming) on SSRN. Here is the abstract:

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should.

I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.

International Human Rights, Forensic Evaluations, and Correctional Conditions Litigation

Two recent manuscripts address international human rights law as it bears on two separate problems related to the criminal process.

Michael L. Perlin (New York Law School) and Valerie Rae McClain (Neurology and Physical Therapy Centers of Tampa Bay) have posted 'Where Souls are Forgotten': Cultural Competencies, Forensic Evaluations and International Human Rights (Psychology, Public Policy and Law, Vol. 15, 2009) on SSRN. Here is the abstract:

Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.

Professor Perlin and Henry A. Dlugacz  (New York Medical College - Graduate School of Health Sciences) have posted 'It's Doom Alone that Counts:' Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation? (Behavorial Sciences and Law, Vol. 27, 2009)  on SSRN. Here is the abstract:

Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation of the Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas of prisoners' rights law.

From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate to mental health care and treatment. Here, in spite of a general trend toward more stringent applications of standards of proof and a reluctance to order sweeping, intrusive remedies, some courts have aggressively protected prisoners’ rights to be free from 'deliberate indifference' to serious medical needs, and to be free from excessive force on the part of prison officials.

A mostly hidden undercurrent in some prisoners' rights litigation has been the effort on the part of some plaintiffs' lawyers to look to international human rights doctrines as a potential source of rights, an effort that has met with some modest success. It gets support by the inclination of other courts to turn to international human rights conventions, even in nations where such conventions have not been ratified, as a kind of 'best practices' in the area.

The recent publication and subsequent ratification (though not, as of yet, by the United States) of the UN Convention on the Rights of Persons with Disabilities (CRPD) may add new support to those using international human rights documents as a basis for litigating prisoners' rights claims. To the best of our knowledge, there has, as of yet, been no scholarly literature on the question of the implications of the CRPD on the state of prisoners' rights law in a US domestic context. In this paper, we raise that question, and offer some tentative conclusions.

Previewing the Coming Term (Part 1): Maryland v. Shatzer

[This is the first in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No: 08-680
Case:  Maryland v. Shatzer
Oral Argument Date:  October 5, 2009

Issue:  Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.

Factual and Procedural History:  In August 2003, acting on information that respondent, Michael Shatzer, Sr., had sexually abused his three-year-old son, Maryland police interviewed respondent in prison where he was serving a sentence on unrelated charges.  Shatzer invoked his right to counsel and ended the interrogation.  Subsequently, the investigation was closed. 

In March 2006, nearly three years later, Shatzer’s son provided Maryland police with additional information about the alleged sexual abuse.  Shortly thereafter, a different police officer informed Shatzer, who was still incarcerated, that a new investigation had been initiated.  Shatzer waived his Miranda rights and denied the new allegations that he forced his son to perform oral sex on him, but admitted to masturbating in front of his son.  Several days later, Shatzer was again given his Miranda rights, but then failed a polygraph test.  Maryland police immediately questioned Shatzer thereafter, at which time he began to cry and say, “I didn’t force him. I didn’t force him.” Shatzer then requested an attorney, the interview ended, and he was subsequently charged with sexually abusing his son.

At trial, Shatzer filed a motion to suppress his March 2006 statements on the ground that, under Edwards, his 2003 invocation of his right to counsel barred police from interrogating him in 2006 without an attorney present.  The trial court denied the motion, holding that his continuous incarceration on an unrelated offense for nearly three years constituted a break in custody for Miranda purposes, thereby terminating Edwards’s prohibition on re-interrogation.  The court subsequently found Shatzer guilty of sexual abuse.

The Maryland Court of Appeals reversed, holding that under Edwards, once the right to counsel is asserted, the suspect may not be re-interrogated until he is provided with counsel or he voluntarily initiates communication.  The Court stated that “the passage of time alone” will not end Edwards protections.  Any “break in custody” exception to Edwards must mean something different than “custody” for Miranda purposes and, regardless, is inapplicable to an inmate who has been continuously incarcerated between interrogations.

Maryland filed a petition for certiorari in which it asked the Supreme Court to grant review to resolve disagreement in the lower courts on whether the Edwards prohibition on re-interrogation may terminate as a result of either a break in custody or a substantial lapse in time. The petition was granted on January 26, 2009.

Summary of Petitioner Argument:  According to Petitioner (Maryland), the Maryland Court of Appeals ruling was an “unwarranted extension” of the Edwards rule.  Petitioner argues Edwards and its progeny only applied to similarly-situated suspects; where each person was held for questioning and subjected to a second interrogation within three days of the request for counsel.  Petitioner argues this case is distinguishable as there was a break in custody and a substantial passage of time.  Therefore, Edwards should not apply. 

Petitioner argues, from a policy perspective, that Miranda and its progeny “make[] clear” that a per se ban on voluntary confessions is unwarranted when the purposes behind Miranda and Edwards would not be served.  Consequently, construing Edwards to encompass cases “involving a long break in custody or a substantial lapse of time does not protect against coerced confessions and needlessly impairs police investigations.”  Therefore, the Maryland Court of Appeals ruling that found a presumption of coercion cannot be justified, and should be reversed.

Summary of Respondent Argument:  According to Respondent (Shatzer), the Maryland Court of Appeals properly applied Edwards, and thus the judgment should be affirmed.  Respondent argues he remained in “continuous government custody for a period of two years and seven months and was re-interrogated about the same criminal allegations without counsel present.”  Consequently, Respondent argues Edwards should bar any use of subsequently acquired statements made by him while in custody, even if they were produced nearly three years after the initial interrogation.

According to Respondent, Edwards “represents a bright-line rule.”  Therefore, restricting its application to only periods of temporary investigative custody would defeat the four main pillars that support the ruling’s purpose:  (1) ensuring confessions are the product of free choice and not coercion; (2) providing clear and unequivocal guidance to law enforcement and the courts; (3) preventing police officers from badgering suspects, and (4) maintaining confidence in the administration of the criminal justice system.

According to Respondent, even if the Court does recognize an exception to Edwards for breaks in custody, such an exception would not apply here because Respondent invoked his right to have counsel present during custodial interrogation, was continually incarcerated without access to counsel, and did not initiate contact with the police before a detective returned to question him two years later.

Brief for Petitioner State of Maryland

Brief for Respondent Michael Blaine Shatzer

Reply Brief for Petitioner State of Maryland

Saxer on Banishment of Sex Offenders

Shelley Ross Saxer (Pepperdine University - School of Law) has posted Banishment of Sex Offenders: Liberty, Protectionism, Justice, and Alternatives (Washington University Law Review, Vol.. 86, p. 1397, 2009) on SSRN: Here is the abstract:

Although most sex offenses are committed by relatives or acquaintances of the victims, our public policy approach has been to focus on the stranger sex offender and punish sex offenders through residency restrictions. These residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities in fear that they may reoffend in our neighborhoods. Rather than being thrust into some wilderness, sex offenders are 'banished' to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.

Banishing sex offenders through these residential restrictions impacts individual liberty, our national structure, and social policy considerations. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of both sex offenders and our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. This Article also examines what methods from the environmental justice movement might be available to deal with the 'social justice' issue of sex offenders disproportionately burdening poor, minority communities. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that legislators should reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

More on Dershowitz, Scalia, and Davis

Last week, CrimProf noted some criticisms of Justice Scalia's opinion in the Davis case, including Alan Dershowitz's claim that Catholic teaching is inconsistent with Justice Scalia's doubts about whether actual innocence would state a cognizable federal habeas claim . Douglas Berman has collected commentators who disagree with Dershowitz. For example, at the Bench Memos column at National Review Online, Ed Whelan states that Catholic thought "does not mean that Scalia must conclude that a death-penalty system is immoral if it relies, say, on the vehicle of executive clemency rather than judicial adjudication of 'constitutional' claims of 'actual innocence' to prevent execution of those actually innocent." At Mirror of Justice, Rick Garnett writes

to cringe at Prof. Dershowitz's silly piece is not to endorse the view that Justice Scalia expressed in Herrera about the power of a federal court to enjoin a state's execution.  But, it seems to me that even we Catholics who oppose capital punishment should object to such an opportunistic and simplistic deployment of the "Catholic morality" card.

 

Featured Download: Kolber on How to Improve Empirical Desert

I join Larry Solum in highly recommending this piece by my colleague, Adam J. Kolber, entitled How to Improve Empirical Desert (Brooklyn Law Review, Symposium: 'Is Morality Universal and Should the Law Care?', 2010), to those interested in criminal law theory. It is a rigorous examination of the idea of empirical desert that is a must-read for both proponents and opponents and a good-read for those on the fence. Here is the abstract:

According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.

I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain -- those who are on the fence about offending -- are likely to act under biased, heat-of-the-moment circumstances. Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals. Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.

I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies. (This article was written for the Brooklyn Law School Symposium, “Is Morality Universal and Should the Law Care?”.)

KC

Jury Trials in Japan

Raneta Lawson Mack (Creighton University School of Law) has an op-ed piece at Jurist describing the new system (featuring jurors deliberating along with judges) and identifying challenges ahead. Among the concerns:

Japan has an exceptionally high conviction rate (> 99% by most estimates). While this can certainly be attributed, in part, to prosecutorial selectivity, it is also clear that most of the criminal cases in Japan are presented to the courts wrapped neatly with confessions by defendants. In most instances, these confessions are obtained without the benefit of counsel and within the secret confines of the interrogation room. Japan has so far resisted repeated calls for general audio- or videotaping of interrogations explaining that recording could impede the interrogation process.

Professor Mack wonders how jurors will respond to confessions in cases where substantial questions are raised about guilt, and whether a possible decline in conviction rates if jurors are skeptical will undermine public support for jury trials.

 

Top-Ten Recent SSRN Downloads in Criminal Law and Procedure Journals

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	205	Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets Andrew Brady Spalding, University of Mumbai (Bombay),
2	144	Minds, Brains, and Norms Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute,
3	134	Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases Dan M. Kahan, Yale University - Law School,
4	113	The Prosecutor as Regulatory Agency Rachel E. Barkow, New York University - School of Law,
5	84	Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama Ian F. Haney-Lopez, UC Berkeley School of Law, [8th last week]
6	83	The Unexceptionalism of Evolving Standards Corinna Lain, University of Richmond - School of Law,
7	81	Neoliberal Penality: A Brief Genealogy Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: July 1, 2009 Last Revised: July 10, 2009
8	79	Breaking the Law to Enforce it: Undercover Police Participation in Crime Elizabeth E. Joh, U.C. Davis School of Law, [new to top-ten list]
9	70	The Truth about Physician Participation in Lethal Injection Executions Ty Alper, Death Penalty Clinic [new to top-ten list]
10	69	Struck by Lightning: Walker v. Georgia and Louisiana's Proportionality Review of Death Sentences Robert J. Smith, Bidish Sarma, [new to top-ten list]