November 28, 2009
Schipani on Attorney-Client Privilege in Corporate Criminal Investigations
Cindy A. Schipani (University of Michigan - Stephen M. Ross School of Business) has posted The Future of the Attorney-Client Privilege in Corporate Criminal Investigations (Delaware Journal of Corporate Law (DJCL), Vol. 34, No. 3, 2009) on SSRN. Here is the abstract:
This article discusses how the Department of Justice (DOJ) has viewed waiver of the attorney-client privilege as an important factor evidencing cooperation when determining whether to enter non-prosecution or deferred prosecution agreements with firms allegedly involved in criminal activities. It further discusses recent changes to the DOJ's guidelines, purporting to take waiver out of the equation in deciding whether to prosecute. Questions remain as to whether the corporate attorney-client privilege is a relic of the past or whether the new guidelines, issued in August 2008, have indeed restored the privilege to firms under federal investigation.
O'Connell on Lawful Combatants and Crimes During War
Mary Ellen O'Connell (Notre Dame Law School) has posted Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 (SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT, Simon Bronitt ed., Forthcoming) on SSRN. Here is the abstract:
Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.
"Federal appeals court rules Ohio executions can resume"Jurist has coverage here of the latest chapter in the saga of the botched September attempt to execute Romell Broom. The Sixth Circuit opinion is here.
"ABA Backs Federal Court Trials of Alleged 9/11 Plotters"
November 27, 2009
"White Collar Sentencing - In China"
BEIJING — China executed two milk producers on Tuesday for selling more than three million pounds of contaminated milk products in connection with a food-safety scandal that killed six infants, shocking the country last year.
More than 300,000 children were also sickened after consuming milk products contaminated with the industrial chemical melamine. The scandal caused panic among Chinese parents, weakened the nation’s dairy industry and provoked a global recall of Chinese-made dairy products.
"Hate crimes are likely underreported despite documented increase"Jurist has the commentary by Eugene O'Donnell (Lecturer, John Jay College of Criminal Justice).
"On 'Undercover Brothers,' Conscience & Getting Free"
Paul Butler (George Washington University) has a post at ACSBlog discussing his book, "Let's Get Free: A Hip-Hop Theory of Justice." In part:
Of special interest to lawyers and law students is a chapter that asks "Should Good People Be Prosecutors?" The answer is "no." As a young African-American man who had several unpleasant experiences with the police, I became a prosecutor hoping that I could make a difference. I went in as an "undercover brother" who hoped to change things from the inside. Instead, I found, the system changed me.
In researching the book, I interviewed several progressive prosecutors who, like me, became disenchanted with the work. You're not really allowed to use the power that you have in a way that makes a big difference. Your main work, as a line prosecutor, is to put people in prison, and if you seem too uncool with that fact, you start to arouse suspicion.
November 26, 2009
Parry on International Extradition and Non-Inquiry
The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”
Featured Download: Harris on Taser Use
This Report concludes that Tasers can be worthwhile and safe weapons in the police arsenal, but only if they are used consistent with proper policy, training, supervision and accountability. Anything less makes the use of these weapons a risky choice from the point of view of both police officers and the public. The Report discusses the scientific and medical research on Tasers, and sets out the best practices that should appear in any Taser policy. The Report also makes recommendations concerning situations in which Tasers should never be used, and situations in which police should only use these devices with extreme caution. It also contains a first-person description of what it feels like to be shot with a Taser, based on the experience of the Report’s primary author.
November 25, 2009
"Report: How to Decriminalize a Drug"ACSBlog summarizes a report by the Transform Drug Policy Foundation. The report is available here.
"Originalism and the Sixth Amendment Right 'to have the Assistance of Counsel'"Orin Kerr at The Volokh Conspiracy has an interesting post on this topic, prompted by some of the discussion of originalism versus stare decisis surrounding the recent briefing in the Court's pending Second Amendment case.
Falkoff on Habeas Corpus and Long-Term Executive Detention
Marc D. Falkoff (Northern Illinois University College of Law) has posted Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention (Denver University Law Review, Vol. 86, p. 961, 2009) on SSRN. Here is the abstract:
... Noting that the Court had jurisdiction to hear Hamdi's claims pursuant to the federal habeas statute, Justice O'Connor stated that "all agree that 28 U.S.C. $ S 2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review," and that, "most notably, $ S 2243 provides that 'the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,' and $ S 2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories." ... If the Guantanamo petitioners, for example, are properly before the courts pursuant to section 2241 of the Title 28 of the United States Code, they would presumably be entitled to at least the "skeletal" procedures provided by Congress for other habeas petitioners. ... Second, because habeas corpus is nominally a civil action, one might suppose that the Federal Rules of Civil Procedure-and particularly their liberal discovery rules - would apply of their own force to habeas actions.
... The lesson from the Hamdi plurality and the Court in Boumediene is not that all hearsay is admissible in an executive-detention habeas action, but rather that the district courts should exercise their discretion in determining whether to allow particular hearsay statements into evidence and should seriously consider the degree to which such statements could be relied upon when assessing the legality of a detention. ... I. Habeas Corpus as a Constitutional Principle Although the legal and political issues raised by the habeas corpus authority of federal courts are familiar to most lawyers and legal scholars in the context of federal review of state convictions, in this article I am primarily interested in the use of habeas corpus to challenge executive detentions. ... Also, the Court will sometimes examine, by affidavit, the circumstances of a fact, on which a prisoner brought before them by habeas corpus has been indicted. ... The judge before whom the Guantanamo habeas cases were consolidated denied the government's motion to dismiss, holding that the prisoners were entitled to fundamental protections of the Constitution - including due process of law-and that they there-fore were entitled to habeas hearings to determine whether those rights had been infringed.
November 24, 2009
"Right and Left Join Forces on Criminal Justice"
The New York Times article by Adam Liptak is here:
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.
Disclosure of Exculpatory EvidenceEllen Podgor has a post at White Collar Crime Prof Blog supporting a change in the Federal Rules of Criminal Procedure to require the disclosure of all exculpatory evidence to the defense. It reproduces a letter from District Judge Emmet Sullivan to the advisory committee on the rules supporting the change and discussing the government's conduct in the Stevens prosecution.
Henning on Victims' Rights in Juvenile Court
Kristin Henning (Georgetown) has published What's Wrong with Victims' Rights in Juvenile Court?: Retributive Versus Rehabilitative Systems of Justice in the California Law Review. Here is the synopsis:
There has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victims’ rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the victim and restoration of communities impacted by crime.
In this article, Professor Henning contends that victim impact statements move the juvenile court too far away from its original mission and ignore the child’s often diminished culpability in delinquent behavior. She also argues that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. Professor Henning proposes that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child’s long-term treatment plan.
November 23, 2009
"Bright Lines Blur in Juvenile Sentencing"
The title of Adam Liptak's column in the New York Times.
Humbach on Lawyers as Safe Haven
As corporations become ever more subject to regulatory and legal controls, the fines and penalties assessed against them, already running to billions per year, are growing. The directors’ potential liability to reimburse these fines and penalties to the corporation will be an increasingly tempting target for derivative attorneys and will make directors increasingly vulnerable.
While a board of directors cannot directly monitor or prevent most violations by corporate personnel, it can do so indirectly, by means of information and reporting systems and controls. To the extent that these monitoring and oversight systems are not perfect, however, derivative plaintiffs will be motivated to seek reimbursement from the directors.
In derivative suits brought for reimbursement of fines and penalties, the directors’ best line of defense will be to show they have made a genuine attempt to assure reasonable information and reporting systems and controls. In some states such as Delaware, moreover, directors will be fully protected if they rely on the advice of counsel. As a result, corporations will be practically required to intimately involve lawyers in the process of creating and operating legal and regulatory compliance controls. Lawyers will provide safe haven.
CrimProf posts you may have missed over the weekend:
- Epstein on Death-Worthiness and Prosecutorial Discretion
- Featured Download: Dillof on Modal Retributivism and Attempts
- Commentary Symposium: Criminal Law, Casebooks, and Legal Education
- "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"
- Megret on International Criminal Procedure
- O'Hanlon on Free Will in Criminal Law
- "Does Bringing A Terrorist Suspect From Gitmo to New York Confer Any More Legal Rights?"
- "Torture and Accountability"
- Top-Ten Recent SSRN Downloads
- "Police Struggle to Navigate New Gang Landscape"
- O'Neill on Pretextual Traffic Stops and Consent Searches
November 22, 2009
O'Neill on Pretextual Traffic Stops and Consent Searches
Timothy P. O'Neill (John Marshall Law School) has posted Vagrants in Volvos: Ending Pretextual Traffic Stops and Consent Searches of Vehicles in Illinois (Loyola University Chicago Law Journal, Vol. 40, p. 746, 2009) on SSRN. Here is the abstract:
Vagrancy laws provided a way of controlling the movement of former slaves in the South after the Civil War. The traffic code is the new way of controlling the movements of minorities in America. Aided by U.S. Supreme Court decisions in Whren, Atwater, and Caballes, police have almost unlimited discretion to stop any driver. But the use of traffic stops on minority drivers - for the purpose of obtaining consent to search the car without any probable cause or reasonable suspicion - is particularly pernicious. This article suggests ways to curb this police practice.
"Police Struggle to Navigate New Gang Landscape"
The article in the New York Times discusses the unintended consequences of the battle on gangs in Chicago. Stepped up enforcement has picked off the leaders of some gangs, leading to fragmented leadership that may generate violence itself:
Ernest Brown, an assistant deputy superintendent and the city’s organized crime chief, said, “Our strategies are coming to fruition.” He noted that aggravated battery with a handgun, a common crime among gang members, is down 20 percent this year in Englewood, one of the city’s most dangerous neighborhoods.
Gang experts outside the Chicago police force see the data differently. Many view the lack of improvement as evidence of gang chaos on the streets.
“Now there’s no structure,” said Michael Cronin, a retired anti-gang officer. “This corner is one faction of the Gangster Disciples, the next corner another. They’re not paying homage to no general.”