CrimProf Blog

Liptak Considers the Future of the Exclusionary Rule

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

Read full article here. [Brooks Holland]

Death Row Inmate Offers Help to Victim's Family

From MSNBC.com: "COLUMBIA, S.C. - Monica Caison figured it was worth a shot, so she fired off a letter, a single paragraph, to the man on death row for kidnapping and killing Alice Donovan during a two-week, 2,300-mile crime spree.

“You say you want to do the right thing,” wrote Caison, the founder of a group that searches for missing people. “I’m here and I’m listening.”

She received Chadrick Fulks’ reply two months later: a map, color photos of the area where he says he left Donovan’s body six years ago, and instructions to look where searchers had not ventured before." Full Story from MSNBC.com... [Michele Berry]

Federal Judge Orders All Plea Agreements Posted Online

From the National Law Journal, NLJ.com: MIAMI — Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

The Justice Department was concerned about a new Web site, Whosarat.com, which was posting information about all cooperators in federal cases. "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as whosarat.com for the clear purpose of witness intimidation, retaliation and harassment," stated the Justice Department's memo to the courts. The Southern District of Florida, like most other courts around the nation, complied, taking pleas off PACER.

But defense attorneys, First Amendment advocates and the federal public defender's office protested, arguing that the public's right to know about the court system was being impaired.

In 2007, the National Association of Criminal Defense Lawyers passed a resolution opposing the exclusion of plea agreements from PACER. Full story from Law.com... [Michele Berry]

Judge Rejects Obama's Request for Stay in Guantanamo Trial

From Law.com: "A military judge at Guantanamo on Thursday rejected a White House request to suspend a hearing for the alleged mastermind of the USS Cole bombing, creating an unexpected challenge for the administration as it reviews how America puts suspected terrorists on trial.

The judge, Army Col. James Pohl, said his decision was difficult but necessary to protect "the public interest in a speedy trial." The ruling came in the case against Abd al-Rahim al-Nashiri. The bombing of the Navy destroyer in 2000 in the harbor of Aden, Yemen, killed 17 U.S. sailors.

It seemed to take the Pentagon and White House by surprise.

"We just learned of the ruling ... and we are consulting with the Pentagon and the Department of Justice to explore our options in the case," said White Press secretary Robert Gibbs, adding that he doubted the decision would hamper the administration's ability to decide how to move forward from Guantanamo." Full Story from Law.com... [Michele Berry]

Two Judges Agree to Plead Guilty to Kickback Scheme Involving Juvenile Offenders

Two Pennsylvania judges agreed Monday to plead guilty to fraud charges accusing them of taking $2.6 million in kickbacks in return for placing juvenile offenders into certain detention facilities.

The plea agreements for Luzerne County President Judge Mark Ciavarella and Senior Judge Michael Conahan call for sentences of more than seven years in prison. Ciavarella resigned from the bench in a Jan. 23 letter to Gov. Ed Rendell. Conahan has agreed to resign within 10 days of a judge's acceptance of the plea.

Authorities say the judges took kickbacks between 2003 and 2007 in exchange for guaranteeing the placement of juvenile offenders into facilities operated by PA Child Care and Western PA Child Care LLC. In some cases, Ciavarella ordered children into detention even when juvenile probation officers did not recommend it.

"They sold their oaths of offices to the highest bidders," Deron Roberts, chief of the FBI's Scranton office, said at a news conference Monday.

U.S. Attorney Martin Carlson stressed the charges were "the first developments in an ongoing investigation" into public corruption at the courthouse in Wilkes-Barre.

PA Child Care and Western PA Child Care have not been charged with wrongdoing.

Conahan's lawyer, Philip Gelso, declined comment.

Ciavarella attorney Al Flora told The Citizen's Voice of Wilkes-Barre that the charges are just "allegations." He added that the plea agreement is conditional on the defendants accepting the facts prosecutors present at the plea hearing, which has not yet been scheduled.

"Everything could fall apart," he told the paper.

Luzerne County District Attorney Jackie Musto Carroll said her office would review cases in which offenders might have been improperly placed into juvenile detention.

Read full article here. [Brooks Holland]

Defendant Invokes Morning Constitutional to Obtain New Trial Lawyer

A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney's face then threw more at the jury.

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said.

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin's hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself.

"That juror didn't even see it coming," Lawson said.

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident.

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed.

The judge scheduled a status conference for Feb. 9 and raised the defendant's bail from $250,000 to $1 million, finding he is a danger to the community.

Read full article here. [Brooks Holland]

Governor Blagojevich's Criminal Defense Lawyer to Resign

Gov. Rod Blagojevich's chief defense attorney announced Friday that he is bailing out of the fraud and bribery case against the governor, strongly hinting that his embattled client refused to listen to his advice.

"I never require a client to do what I say, but I do require them to at least listen," Edward Genson said. "I intend to withdraw as counsel in this case."

Genson, who won renown in defending R&B star R. Kelly and former newspaper baron Conrad Black, dropped his bombshell announcement after a U.S. District Court hearing during which Chief Judge James F. Holderman released four wiretapped recordings of Blagojevich and his associates to the Illinois House impeachment committee.

Blagojevich, facing charges of fraud conspiracy and solicitation of bribery, was impeached by the Illinois House earlier this month and today faces trial in the Senate.

The governor held a news conference Friday afternoon and complained that the impeachment trial was unfair and indicated he would not attend.

In recent days, Genson has seemed to be on a separate wavelength from both his client and two other defense attorneys on the case. The legal team sent mixed signals to the media regarding whether the governor planned a lawsuit challenging Senate trial rules.

Read full article here. [Brooks Holland]

SCOTUS Holds Pat Down of Car Passenger After Stop Justified if Based on Reasonable Suspicion

In Arizona v. Johnson, the U.S. Supreme Court unanimously held today that, after a car is lawfully stopped for a traffic violation, the police may search a passenger as long as they have reasonable suspicion to believe the suspect is armed and currently dangerous.  The Court held that the reasonable suspicion necessary to institute a stop and frisk is satisfied by the suspicion justifying the initial stop, even though that suspicion is directed at the driver, not his or her passengers.  Once the stop is made, therefore, the police need only reasonable suspicion to believe the passenger is armed and dangerous in order to proceed to a frisk. [Mike Mannheimer]