January 2, 2010
Kerr on the Computer Fraud and Abuse Act
January 1, 2010
Government Misconduct Cited in Dismissal of Case Against Blackwater Defendants
The New York Times story is here:
On Thursday, Judge Ricardo M. Urbina threw out manslaughter and weapons charges against five Blackwater guards because he said prosecutors had violated the men’s rights by building the case based on sworn statements that had been given by the guards under the promise of immunity.
December 31, 2009
Re on the Congressional Overruling of Recent Eighth Amendment Cases
Richard M. Re has posted Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.
Mosteller on Defenders and Protecting the innocent
Robert P. Mosteller (University of North Carolina at Chapel Hill - School of Law) has posted Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:
In this article I examine the importance of the role that defenders play in protecting the innocent to invigorate the drive for adequate indigent defense funding during a time of increased societal concern with unjust convictions. I also recognize the inherent dangers and difficulties in harnessing that societal concern. In Part I, I argue that for many defendants, including the most problematic types as demonstrated by DNA exonerations, innocence is not actually knowable to anyone in the system, even defense attorneys. These problematic cases in which the defendants are in fact innocent do not generally present themselves as innocence cases but instead only suggest possible weakness in the prosecution’s evidence, and the defense usually only attempts to raise reasonable doubts in the jury’s mind. Tried by well by adequately funded defense counsel, a percentage of these cases will still result in erroneous convictions of the innocent, but fewer of them. Moreover, innocent defendants will have received all society can actually guarantee in a system where humans decision-makers deal with uncertainty, which is a fair proceeding.
In Part II, I examine a proposed partial solution to inadequate funding, which is a specific application of a rationing system, specifically examining a proposal that attempts to give priority to representing the likely innocent. I conclude that this proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, it could undermine the arguments for adequate defense funding by suggesting that the priority cases of the likely innocent can be defended well if defenders would simply focus their efforts on observable pretrial indicators.
In Part III, I highlight one of what I believe is one of the most realistic and workable proposals to improve indigent defense, which is the creation of a federally supported center to evaluate and finance improvements and reform in state indigent defense. This proposal would have significant impact, and it is politically viable. This reform effort would greatly benefit from the support of the innocence movement. I also address another recent proposal that supports the effort to improve indigent defense through federal support that goes awry with an apparent quid pro quo that would further restrict federal habeas. It promises to protect the innocent, but does so only for those rare cases where innocence is clear, and it would eliminate review of ineffective assistance of counsel and Brady claims, which present substantial reasons to doubt guilt when meritorious and constitute the best showing that innocent defendants can usually ever make.
In Part IV, I explore preliminary strategies for the use of innocence by those leading the battle for increased defense funding. The argument has its challenges and pitfalls, but it is substantially completely valid. Defender leadership must develop the supporting facts and examples and present them effectively.
December 30, 2009
Wexler on Reintegrating inmates
Kim, Barak, and Shelton on the "CSI-Effect" on Jurors
December 29, 2009
Humbach on the Biology of Blame
Klamberg on International Criminal Law in Sweden
December 28, 2009
"Florida's 2005 Stand Your Ground law, which broadens a citizen's right to use deadly force, is vexing courts across the state"
The story is in the Miami Herald:
No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.
Moorer claimed self-defense. Police detectives begged to differ.
But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ``Stand Your Ground'' self-defense law that broadened a citizen's ability to use deadly force.
``There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,'' said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law ``cheapens human life.''
Hat tip to Ted Gest.
Perlin on Therapeutic Jurisprudence in Incompetency and Insanity Cases
Michael L. Perlin (New York Law School) has posted ‘Too Stubborn to Ever be Governed by Enforced Insanity’: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases (International Journal of Law and Psychiatry, Vol. 33, No. 4/5, 2010) on SSRN. Here is the abstract:
Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders . On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise , given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.
In Part I of this paper, I will examine the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. In Part II, I will consider why the lack of attention that I have referred to already is surprising (given TJ’s mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). In Part III, I will then consider why this lack of attention is not surprising, given the omnipresence of sanism. In Part IV, I will consider some of the actual counseling issues that might arise in these contexts, and offer some suggestions to lawyers representing clients in cases in which mental status issues may be raised.
I conclude the paper by concluding that we must rigorously apply therapeutic jurisprudence principles to each aspect of the insanity defense, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the insanity defense process, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address – in a more successful way than has ever yet been done – the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities
December 27, 2009
Top-Ten Recent SSRN Downloads
|1||316||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||314||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
|3||176||Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 |
Mary Ellen O'Connell,
Notre Dame Law School ,
Date posted to database: November 6, 2009
|4||172||Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al |
David B. Kopel,
Date posted to database: November 22, 2009
|5||160||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009
|6||104||Two Ways to Think About the Punishment of Corporations |
Albert W. Alschuler,
Northwestern University - School of Law,
Date posted to database: October 22, 2009 [8th last week]
|7||90||Why Care About Mass Incarceration? |
Georgetown University Law Center,
Date posted to database: October 16, 2009 [10th last week]
|8||89||Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play |
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: October 13, 2009 [9th last week]
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Larry E. Ribstein,
University of Illinois College of Law,
Date posted to database: November 3, 2009 [new to top ten]
|10||78||Police-Induced Confessions: Risk Factors and Recommendations |
Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, Allison D. Redlich,
John Jay College of Criminal Justice, Northwestern University - School of Law, Bluhm Legal Clinic, University of Massachusetts at Worcester - University of Massachusetts Medical School, University of London - King's College London, University of San Francisco - School of Law, Author - affiliation not provided to SSRN,
Date posted to database: October 7, 2009 [new to top ten[