CrimProf Blog

Can You Rob Yourself?

That's the question my colleague, Shaun Martin, is asking over at his California Appellate Report blog, in connection with People v. Smith, a case from the California Court of Appeal. Shaun's summary of the case:

Or, more precisely, you can be convicted of robbery even if the owner of the property is in on it. At least if, while you're "robbing" the owner, you "take" the property from employees who don't know that the whole thing's an inside job. Since the employees "possessed" the property (even though it was owned by the owner), you deprived these people of their possessory interest by force, and hence are guilty of robbery.

Shaun isn't so sure about this one. Why isn't assault with a deadly weapon a better measure of the social harm, with maybe a count of insurance fraud thrown in for good measure?

Moriarty on Rape and Consent

Jane Campbell Moriarty (University of Akron School of Law) has posted Rape, Affirmative Consent to Sex, and Sexual Autonomy: Introduction to the Symposium (Akron Law Review, Vol. 41, 2008) on SSRN.  Here is the abstract:

We may have moved in the West toward a standard in which “no means no” has the force of criminal law behind it. But are we ready for a standard in which only “yes means yes?” And if so, getting to yes may be a winding path to follow. The concept of consent, some of the symposium authors note, is a far more complicated inquiry than many appreciate. Consider the Eliot quotation above: Is it consensual if his exploring hands encounter no defense? Is indifference sufficient to establish consent and if not, should his act be considered criminal rather than just boorish? This is only one, among many, questions with which the symposium authors grapple.

Testing the Outer Limits of the Edwards Rule: Maryland v. Shatzer (Dripps & Kamisar)

Because Miranda was the centerpiece of the Warren Court’s “revolution in American criminal procedure,” most Court-watchers expected the Burger Court to treat the famous case unkindly.  As a general matter, the Burger Court did not surprise them.  But Edwards v. Arizona, 451 U.S. 377 (1981), was a striking exception.

Sharply distinguishing Michigan v. Mosley, 423 U.S. 96 (1975) (which involved a suspect who asserted his right to remain silent), the Edwards Court held that when a suspect asserts his right to counsel, the police cannot try again.  Under these circumstances, observed Justice White for the majority, a valid waiver of the suspect’s right to counsel “cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights again.”  When a suspect asserts his right to counsel, he has “expressed his desire to deal with the police only through counsel.”  Therefore, he cannot be questioned again “until counsel has been made available to him, unless the suspect himself initiates further communication, exchanges or conversation with the police” (emphasis added).

A few years later, in Arizona v. Roberson, 486 U.S. 675 (1988), the Court took the Edwards rule a step further.  Rejecting the argument that it frequently happens that a custodial suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been apprehended and that denying the police access to a suspect in this situation would inflict a heavy blow on law enforcement, a 6-2 majority, per Stevens, J., held that Edwards still applies and therefore the police cannot even initiate interrogation about crimes other than the one for which the suspect has invoked his right to counsel.

Two years later, the Court, this time speaking through Justice Kennedy, expanded the Edwards rule still further.  In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court held that Edwards’s protection does not cease even when the person who has asked for a lawyer has been allowed to meet with one.

The Edwards rule, the Minnick Court told us, “ensures that any statement is not the result of coercive pressures.”  The proposed exception to Edwards would “undermine the advantages flowing from Edwards’s ‘clear and unequivocal’ character.”  Would a three-minute phone conversation suffice?  Would a phone call to the suspect saying that his lawyer was in route suffice?

Next Monday, October 5th, the U.S. Supreme Court will hear oral argument in another case involving the scope of the Edwards rule, a case called Maryland v. Shatzer.  This case raises such questions as:  How many days or weeks or months after the suspect has asserted his right to counsel does the Edwards protection last?  Does the Edwards rule continue to protect the suspect who has asserted his right to counsel unless and until there is a “break” in custody (a significant change in circumstances before the police try again to question the suspect)?  Or at some point does the mere passage of time bring Edwards’s protection to an end?

The facts in Shatzer read almost like a question on a law professor’s criminal procedure exam:

In August, 2003, a detective met with the defendant, Michael Shatzer, who was incarcerated in a state correctional facility (on an unrelated crime) to question him about a report that he had sexually abused his 3-year old son.  When Shatzer refused to talk to the detective without a lawyer being present, the questioning was terminated.

The police closed the investigation some time in 2003.  However, in February 2006, when Shatzer’s son was able to make more specific allegations, because he was now older, the police department opened a new investigation.  A different detective was assigned the case.  The following month the new detective met with Shatzer, who was still incarcerated within the general prison population, but in a different correctional facility.

At the March 2006 meeting, Shatzer voiced surprise at the renewed questioning on the matter involving his son.  He told the detective he had assumed that the investigation had long since been closed.  The detective responded that the police had decided to reopen the investigation because of new evidence.  The detective then advised Shatzer of his Miranda rights and obtained a waiver of these rights.  At no time did Shatzer indicate that he wanted to talk to an attorney.  Shatzer then made some incriminating statements which were used against him when he was prosecuted for, and convicted of, sexual child abuse.

So two and a half years after the defendant had asserted his right to counsel (31 months to be more exact), the police tried again and this time they succeeded in getting the defendant to talk to them.  Or did they succeed?  Can Edwards’s protection possibly last this long?

The trial court did not think so, ruling that there was “a break in custody for Miranda purposes” because of the great length of time between the first and second police attempts to get Shatzer to talk to them.  This seems a questionable use of the “break in custody” exception.  Shatzer had not been released from custody since his first meeting with the police.  Nor had he been convicted and sentenced for sexually abusing his son since his first meeting with the police.

The Maryland Court of Appeals reversed.  It was unable to find any case that relied “solely upon the passage of time factor standing alone” (emphasis in the original) to conclude that the Edwards protection had expired.  Nor was the court impressed by the argument that a “break in custody” occurred when Shatzer was released back into the general prison population in between the two meetings with the police.

The Maryland Court of Appeals may have gone astray by dwelling too long on the “break in custody” exception.  The Edwards rule was designed to prevent the police from pestering or badgering a suspect who has asserted his right to counsel at his first meeting with the police.  But two interrogations in 31 months can hardly be called “badgering” or “pestering.”  Why not say that when so much time has elapsed between the first and second meetings with the police that no reasonable custodial suspect could possibly believe that he was being badgered by the police or that the police were trying to wear him down, the Edwards protection should expire?  Mr. Shatzer undoubtedly will argue that there is a need for a bright-line rule in this area.  Two and a half years may seem long enough, but what about two and a half weeks or two and a half days?  Absent a break in custody, i.e., a substantial change in circumstances, Shatzer will maintain, the Edwards protection should remain in effect.

However, it is most unlikely that a majority of the present U.S. Supreme Court will tell us that Edwards’s protection never wears out – that it has no time limits at all.  The odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had “tried again” 31 months after their first meeting with the suspect.  Indeed, it would not be surprising if at least two or three members of the Supreme Court went further and urged the overruling of either Minnick or Roberson or both.

If the Court does say that at some point the mere passage of time is enough to end Edwards’s protections, there may be some hard cases to deal with in the years ahead.  But it is hard to believe that they will be any harder than such issues as what constitutes “interrogation” or “custody” for Miranda purposes.  Recall for example, the 5-4 split in Yarborough v. Alvarado, 541 U.S. 652 (1994) over whether a 17 ½-year-old defendant was in “custody” when his parents brought him to the sheriff’s station and then waited in the lobby while a detective took their son to a small room where only the two of them were present.

DD & YK

Lavitt on John Choon Yoo and the Bush Administration

Joseph Lavitt (University of California, Berkeley-School of Law Adjunct Faculty) has posted The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC During the Bush Administration (Maine Law Review, Vol. 62, No. 1, 2009) on SSRN.  Here is the abstract:

At the time the administration of Barack Obama takes office in the United States, debate about charging members of the former administration of George W. Bush with crimes against humanity is as intense as such prosecution is improbable. This article first considers whether officers who were in command and control of the Executive Branch of the government of the United States during the Bush administration can be excused from criminal responsibility on charges of illegal torture, based on their claim to have acted in good faith reliance upon the advice of attorneys employed by the Department of Justice.

Focus then turns to the accountability, if any, of those attorneys in the Justice Department’s Office of Legal Counsel who opined that so-called enhanced interrogation of persons in the custody of the United States was legally permissible. The answer to this question turns not on the doctrine of command responsibility (as many have presupposed), but on its logical converse - whether subordinate members of an executive branch of government are responsible as principals for the conduct of superior officers who relied on their opinions.

Finally, the doctrine of the unitary executive is examined through the prism of the conclusions about legal responsibility reached on the first two questions. The projection of the “Fuehrer Principle” by John Choon Yoo and others into modern American scholarship and governance became the basis for putative criminality during the Bush Administration. That principle is so patently repugnant to American representative democracy and constitutional republicanism as to render invalid any legal opinion or action based even in part upon it. Until that principle is decisively repudiated by a court that imposes punishment for criminal wrongs over a defense based upon it, the exercise of Presidential authority in times of crises in the United States will be likely to repeat the terrible mistakes of the all too recent past.

"Drug Courts Endanger Rights, Block Access"

That's the headline on the press release from the National Association of Criminal Defense Lawyers introducing a new report, The reporter is Joel Schumm of Indiana University School of Law (Indianapolis) (pictured). According to the press release:

Major findings of the report include:
· Treating substance abuse as a public health issue rather than a criminal justice one
· Opening admission criteria to all those who need, want and request treatment
· Enforcing greater transparency in admission practices and relying on expert assessments, not merely the judgment of prosecutors
· Prohibiting the requirement of guilty pleas as the price of admission
· Urging greater involvement of the defense bar to create programs that preserve the rights of the accused
· Considering the ethical obligations of defense lawyers to their client even if they choose court-directed treatment.
· Opening a serious national discussion on decriminalizing low-level drug use.

Southern Public Defender Training Center

[Jonathan Rapping (John Marshall Law School in Atlanta) posted the following message on the CrimProf listserv today, and I am republishing excerpts here with his permission.]

Prior to teaching law school I was a public defender for twelve years.  I spent nine years with the Public Defender Service in DC and served as its Training Director.  I left PDS to become the Training Director for Georgia's then-new state-wide public defender system.  After two years in Georgia I went to New Orleans to help with the efforts to build a PD office there in the wake of Katrina.  I have since founded, and run, a non-profit called the Southern Public Defender Training Center (SPDTC).  The mission of the SPDTC is to spearhead a cultural transformation in indigent defense in the South through the recruitment, training, and mentoring of a new generation of public defenders. 
 
We are a small, but growing, organization and as part of our outreach campaign we put out a semi-annual e-newsletter.  I know many of you are interested in, and involved with, indigent defense reform.  If any of you would like to be included in our e-mailing please let me know off-line at jrapping@bellsouth.net.  Include the e-mail address you would like us to include for you.  If any of you would like more information on this effort please visit our website at www.southerndefender.com.  On the "About" page you will find much downloadable information including a couple of articles I have written on the importance of cultural transformation to the larger indigent defense reform effort and why the model underlying the SPDTC (recruitment, training, and mentoring new PDs) is the most effective way to effect cultural transformation.

Stetson Seeks Spring 2010 Visitor in Criminal Law

Please send your visiting opportunities for criminal law and/or procedure professors for this year and next to crimprofblog@gmail.com for inclusion here.

Stetson University College of Law seeks a one-semester coverage visitor for Spring 2010 to teach first-year criminal law.  The school will consider individuals to teach just that one course or individuals who would teach a second course as well.  Compensation would be based on whether the candidate will teach one or two courses, and housing assistance may be available.

With its main campus in Gulfport, Florida, which is adjacent to St. Petersburg on Florida’s west central coast, Stetson was established in 1900 and is Florida’s oldest law school.  Stetson also has a part-time program with classes held on both its Gulfport campus and its satellite campus in Tampa.  Stetson has earned a national reputation for its advocacy, elder law, legal writing, and higher education programs, and has Centers for Excellence in Advocacy, Elder Law, Higher Education Law and Policy, and International Law.  The College of Law is a vibrant intellectual community, situated on a beautiful campus.  We encourage potential applicants to visit our Web site at http://www.law.stetson.edu to learn more about our school, our community and our programs.

Review of resumes will begin immediately.  Prior law-school teaching experience, top academic performance, and bar admission are preferred.

Contact:  Applicants should send an email, attaching a current curriculum vitae together with a cover letter and details of at least three professional references, to Professor Roberta K. Flowers, Co-Chair of the Faculty Appointments Committee, at flowers@law.stetson.edu.  Those who prefer to apply by standard mail should write to Professor Roberta K. Flowers, Stetson University College of Law, 1401 61st Street South, Gulfport, FL  33707.

CrimProf's Junior Scholar Paper "Competition"

After extensive negotiations with my dean, I am glad to announce that CrimProf is holding a “competition” for junior scholars with a paper in the areas of criminal law or criminal procedure. The “winner” will be transported, at our expense, to the University of San Diego at a mutually agreeable time during the spring semester to deliver the paper to our faculty. We will also webcast the audio and video of the presentation live for full-time academics (we’re pretty sure we can handle at least 100 live viewers), who will have the opportunity to ask questions during the presentation. For those who cannot participate live, we will place a podcast of the presentation on our website.

I put “competition” in quotation marks because, while we will seek to present a very good paper, we will not feel obligated to select the “best” paper, even if we can agree on what it is, if we believe a different paper might have more appeal for the criminal law and procedure professoriate. In addition, we will not be reviewing the papers blind to the author’s identity.

In this week after Bruce Springsteen’s 60th birthday, I am tempted to say that a “junior” scholar is anyone under the age of 55. Instead, we will track the definition used by the Criminal Justice Section in its paper competition: submissions will be accepted from full-time law faculty who have held full-time appointments for ten years or less. Papers cannot have been accepted for publication at the time of submission. Submissions are due by October 31.

If you have a paper to submit, or would like to nominate the paper of another, please let us know at crimprofblog@gmail.com. Ideally, the initial submission would include an abstract and a link to a place we can find the full paper, but if necessary, you can attach the entire paper to your email.

Every time I stand in line at airport security, I become more convinced that remote participation in conferences is an option that must increasingly be made available. This “competition” is one way for us to start down that path and to measure its attractiveness. It is also a chance to showcase some of the excellent scholarship in our fields.

KC

Murphy on Criminalizing Humanitarian Intervention

Sean D. Murphy (George Washington University - Law School) has posted Criminalizing Humanitarian Intervention (Case Western Reserve Journal of International Law, Vol. 41, p. 341, 2009)  on SSRN. Here is the abstract:

The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention as illegal. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders - an outcome that seems likely for incidents of true humanitarian intervention - may lend considerable credence to the view that such intervention is lawful, as well as define the conditions that characterize such intervention.

Burglar Ordered to Pay Restitution to Victim for Lost Wages from Attending Court

The San Francisco Chronicle has the story, headlined Burglar must repay victim for time in court.  Here's the lead:

In a broad interpretation of a law requiring criminals to make restitution to their victims, a state appeals court has ordered a Northern California burglar to repay a homeowner for the wages he gave up by attending every court hearing in the case.

The opinion is here.

No Charges Against "Victim" in Hofstra Rape Hoax

What had started out as a case involving allegations of a brutal gang rape in a college dormitory quickly unraveled when the "victim" was told that a video existed to show the acts were consensual.  The N.Y. Times has the story here, which links to earlier coverage.

Abelson on the Prosecute-Extradite Dilemma

Adam B. Abelson has posted The Prosecute-Extradite Dilemma: Concurrent Criminal Jurisdiction and Global Governance (UC Davis Journal of International Law and Policy, Vol. 16) on SSRN. Here is the abstract:

This article explores the dilemma between prosecution and extradition that countries face when multiple countries’ criminal laws may apply to particular conduct. It argues that the prosecute/extradite dilemma should be understood as a crucial site of global governance, a decentralized site of interaction between national criminal laws that shapes how national and international interests are articulated and mediated. While criminal laws reflect a state’s most fundamental norms, effective global governance requires a normative assessment of when a state should - and more crucially, when it should not - seek to further those norms when multiple countries have a basis for applying their criminal laws to particular conduct. This article offers a framework for such an assessment, with a particular emphasis on extraterritorial application of U.S. criminal laws.

"Alternatives to drug war championed at conference"

The article is in today's San Diego Union Tribune. Here's the lead:

EL PASO, Texas — It's been called the U.S. war on drugs — a tough-minded government policy that for decades has targeted traffickers and addicts with prosecution and punishment.

But that policy came into question last week during a conference that brought together an unusually broad grouping of policymakers, academics and community activists from Mexico and the United States.

Instead of discussing how to capture more drug lords, seize bigger caches of weapons and further beef up border security, they proposed alternatives such as creating social programs to raise the quality of life for impoverished Mexicans vulnerable to joining the drug trade. They also advocated for comprehensive programs to prevent and treat drug addiction on both sides of the border, expand needle-exchange programs and decriminalize the use of marijuana so it can be better regulated.

"Big Case for Small-Time Attorney"

That's the headline of the Wall Street Journal article about Art Folsom, the attorney representing accused terrorist Najibullah Zazi. According to the article, Mr. Folsom "has made a living on drug-possession and drunk-driving cases, along with the odd divorce." In addition

Veteran criminal defense attorneys have been unusually blunt in assessing Mr. Folsom's qualifications. "Mr. Folsom is just in over his head," said prominent Denver defense lawyer Daniel Recht, citing Mr. Folsom's performance so far and minimal experience in federal court.

Mr. Folsom says he "won't abandon" his client, even though the client has no money to pay him.

"The Case of the Plummeting Supreme Court Docket"

The New York Times has the story here.

Polanski Arrested in Switzerland

The N.Y. Times has the story, headlined Polanski Arrested in Switzerland in 1970s Sex Case .  Here's the lead:

In a surprising move arranged by prosecutors in Los Angeles and Washington, the authorities in Switzerland arrested the film director Roman Polanski late Saturday as he arrived at the Zurich airport, paving the way for his possible extradition to the United States in connection with a 32-year-old sex case.

Mr. Polanski, 76, a French citizen, was detained as he arrived to receive an award at the Zurich Film Festival. Although he is expected to oppose extradition, the arrest raised a strong possibility that Mr. Polanski would be returned to the United States to face sentencing under his conviction for having had sex with a 13-year-old girl in 1977.

The article also touches on the recent documentary film Roman Polanski: Wanted and Desired, which was released in late 2008 and focused on claims of judicial and prosecutorial wrongdoing at the time of Polanski's arrest.

Featured Download: Roth on Setting a Threshold for DNA "Cold Hits"

Andrea L. Roth (Stanford Law School Law Fellow) has posted Safety in Numbers?: Deciding When DNA Alone is Enough to Convict (New York University Law Review, Forthcoming) on SSRN. It is a very helpful examination of an issue that is only likely to increase in importance. Here is the abstract:

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists - including a workable standard of proof - for determining sufficiency of the evidence in such a case. This article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. While any threshold will be arbitrary, I argue - citing recent juror studies and the need for uniformity and systemic legitimacy - that the threshold should be no less favorable to the defendant than a 1 in 1000 chance that the defendant is not the source of the evidence.

The piece provides an interesting overview of some of the recent "cold hit" cases and does a nice job coming to grips with some of the literature raising concerns about pure statistical proof. If the author's proposal is embraced, it will be interesting to see what kind of corroborating evidence would be regarded as sufficient to remove a case from the category in which she advocates greater judicial control.

 

Weekend Review

Friday

• Harcourt on Henry Louis Gates and Racial Profiling
• Benner Addresses Deficiencies in California's Indigent Criminal Defense
• "New state secrets policy is first step towards legislation to check executive discretion in blocking litigation"
• You Have the Right to Remain Silent, Even if Dr. Phil Asks You a Question

Saturday

• Levinson, Cai & Young on Implicit Racial Bias
• New Criminal Justice Program at Vanderbilt Law School

Sunday

• Top-Ten Recent SSRN Downloads
• "Technocorrections, economic realities and a new privacy/liberty relationship"
• "California Struggles With Paroled Sex Offenders"
• Update on the Lori Drew/My Space Suicide Case

Update on the Lori Drew/My Space Suicide Case

Orin Kerr has a post at The Volokh Conspiracy noting that the government has filed a notice of appeal from the trial court's judgment dismissing the case and that such a notice preserve the right to appeal but does not necessarily mean that the government will pursue the appeal further. He also collects his prior posts about this case.

"California Struggles With Paroled Sex Offenders"

The article is in today's New York Times. It provides an insight into the practical limitations of GPS tracking systems and the caseloads, optimal and real, of those assigned to keep an eye on parolees.