January 16, 2010
Ninth Circuit Opinion in Civil Case Related to False Confessions
The case, a high profile one from the San Diego area, is Crowe v. County of San Diego, and the opinion is here. The court reversed the district court's grant of partial summary judgment for the government entities and individuals involved. CrimProf Richard Leo, an expert in the case, in quoted by the court as calling one of the interrogations as “the most psychologically brutal interrogation and tortured confession that I have ever observed.”
From the beginning of the opinion:
This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit. Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael’s 12-year-old sister Stephanie Crowe. After hours of grueling,psychologically abusive interrogation—during which the boys were isolated from their families and had no access to lawyers—the boys were indicted on murder charges and pre-trial proceedings commenced.
. . .
Michael, Aaron, Joshua, and their families filed a complaint against multiple individuals and government entities who had been involved in the investigation and prosecution of the boys. The complaint alleged, amongst other claims, constitutional violations under the Fourth, Fifth, and Fourteenth Amendments, and defamation claims.
The San Diego Union Tribune has a story on the decision here.
Shelton on Admissibility of Social Science Evidence in Criminal Cases
Donald E. Shelton (Eastern Michigan University) has posted The Admissibility of Social Science Evidence in Criminal Cases on SSRN. Here is the abstract:
The rapid development of emerging scientific methods, especially the increased understanding of deoxyribonucleic acid ("DNA"), has had, and will undoubtedly continue to have, an almost stunning impact on our justice system, particularly at the trial level. The forensic applications of these new scientific discoveries have been most dramatically seen in the criminal trial court. They have also caused us to re-examine other forms of forensic evidence that have been rather routinely admitted in our courts. Forensic evidence from social scientists is certainly one of those forms. Which of these forms of scientific forensic evidence have sufficient validity to be used in a criminal proceeding that could take away a person's liberty or even their life? Who answers that question and how?
The Supreme Court of the United States has decided, first in the Frye case and then later in the Daubert trilogy of cases, that it is the trial judge who must decide these issues and be the "gatekeeper" who will determine which forms of scientific forensic evidence "get in" to the jury's consideration. The first part of this article defines and explores that expanded gatekeeper role, as it continues to be a task of increasing onus to trial judges. The next part considers the implementation of that gatekeeper role as it is applied to criminal proceedings. The third part of this article narrows the inquiry specifically the issue of the applicability of the Daubert, and even Frye, analysis to the admissibility of social science evidence generally. Finally, the article examines specific questions regarding testimony of experts about the reliability of eyewitness evidence and regarding the continued admissibility of certain types of forensic abuse syndrome evidence.
Humbach on Doubting Free Will
This paper describes three experiments that cast doubt on the existence of free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it.
While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As such, they throw into question the factual basis of the freewill justification for purposefully inflicting serious human suffering as punishment.
This paper is a break out from an earlier version of my companion paper, Free Will Ideology: Experiments, Evolution and Virtue Ethics, available at SSRN: http://ssrn.com/abstract=1428002.
January 15, 2010
Klamberg on International Criminal Law and Legality
Mark Klamberg (Stockholm University - Faculty of Law) has posted International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case (International Criminal Law Review, Vol. 9, pp. 395-409, 2009) on SSRN. Here is the abstract:
On 18 December 2006, the Stockholm district court convicted Jackie Arklöv for a crime against international law. It was the first, and until the present date, the only time, liability for a crime against international law has been tried before a Swedish court. This article presents the law applied by the Court, draws attention to the principles of legality, ne bis in idem, and discusses whether a national court in a dualistic legal system can impose criminal responsibility with reference to customary international law.
Zahar on Closing Arguments and Joint Criminal Enterprise
Alexander Zahar (Griffith University - Griffith Law School) has posted How Judges Think: Strengthening Defence Approaches to Joint Criminal Enterprise and Closing Arguments (Annual Conference of the Defence Bar of the Court of Bosnia and Herzegovina, Sarajevo, December 12, 2009) on SSRN. Here is the abstract:
There is a method used by trial judges at the international criminal tribunals to decide the outcome of a case, and the method is rather fixed and inflexible. A defence lawyer working against the grain of the judges’ method is working in a way that is not as effective as it could be.
Trial judges at the ICTY are amenable to be persuaded that an otherwise solidly established legal principle has no application, or no reasonable application, to the facts at hand. The doctrine of joint criminal enterprise provides a good illustration of this point. Here we have a legal principle that is well established in theory, but rather vulnerable in practice. Many trial judges are instinctively aware of this vulnerability, which means that it is a promising area for the development of a defence strategy. At a more fundamental level, judges tend to think about an indictment and the whole resulting trial process in a very particular way. They analyse an indictment into certain elements and they employ their analysis to understand the evidence as it is received on a daily basis in the course of the trial. Their particular analysis defines, in effect, what is relevant and what is not relevant in a trial. It filters out distractions and facilitates a more active and engaged judicial role. The judges’ original analysis persists throughout the case and forms the template for the trial judgement at the end.
But while judges do seem to think in certain fixed ways, and while defence lawyers must take these into account if they are to be most effective, this fact doesn’t extinguish every possibility of creativity in defence strategy. On the contrary, it is still very possible to throw the prosecution off balance in unexpected ways. And it is possible to get the trial chamber to pay respectful attention. I illustrate this point by considering the neglected defences of reprisals and superior orders.
Third DOJ Report on Deferred Prosecution and Non-Prosecution AgreementsEllen Podgor has a post on this at White Collar Crime Prof Blog. The most recent report is here. Prior reports are here and here.
Dubber on Dignity (or Not) in American Criminal Law
This essay explores the significance, or rather insignificance, of the concept of dignity in American criminal law.
January 14, 2010
"UK prison population should be cut by a third: parliamentary report"Jurist has the story here.
Uhlmann on Environmental Crime
David M. Uhlmann (University of Michigan Law School) has posted Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
The environmental crimes program in the United States has entered its third decade, yet questions remain about what makes an environmental violation criminal. Our environmental laws make only limited distinctions between criminal and civil liability, so theoretically the same conduct could give rise to criminal, civil, or administrative enforcement. This article will reconsider concerns that have been raised historically about the role of criminal enforcement under the environmental laws and will suggest an answer to the question of what makes an environmental case criminal. The article addresses claims that the complexity of environmental law makes it a difficult fit for criminal enforcement and that the mental state requirements for environmental crime make it possible for corporate officials to be convicted for conduct that they do not know is occurring. The article considers the role of prosecutorial discretion in environmental cases and asserts that criminal prosecution should be reserved for cases involving (1) significant harm of risk of harm to the environment or public health; (2) deceptive or misleading conduct; (3) deliberate efforts to operate outside the regulatory system; or (4) significant and repetitive violations of environmental laws. By limiting criminal prosecution to these cases, prosecutors can ensure that criminal enforcement will advance the goals of the environmental regulatory scheme.
Unmanned Surveillance Drones in Houston (Kolber)The Houston Police Department has been testing a small, unmanned aircraft that can be used for surveillance. As Professor Rocky Rhodes (South Texas College of Law) notes in the video, one issue raised by the drones is whether they are already being used by law enforcement and whether and under what conditions their use constitutes a search for purposes of the Fourth Amendment.
You'll notice that the reporters are not bashful about telling you how great their investigative journalism was here. Their "cameras were their for the entire secret test."
Tanovich on Sexual Misconduct Evidence in Canada
In support of a presumption of admissibility in actus reus cases, the article examines both formal and substantive equality justifications for a presumptive rule of admissibility. Part II examines the formal equality argument grounded in the “tit for tat” principle that has emerged in the law of evidence and which applies in this context. The argument is that fairness demands that the Crown be permitted to respond to the usual “whack the complaiant” defence tactics in sexual assault cases. Part III advances a substantive equality argument grounded in the need to take into account the gender bias that persists in similar fact adjudication. A core element of this bias is manifested in our courts failure to properly give effect to the fact that sexual assault is not a crime of sex and passion but one of violence. This bias has had a negative impact on cases as is evident from a survey examining post-Handy cases from 2002-2008 where courts frequently exclude the evidence because of a lack of so-called similarity in the nature of the prior sexual acts. The survey is set out in Part III. Finally, in Part IV, the article identifies and responds to feminist criticisms of a presumptive rule of admissibility.
January 13, 2010
Perceived Necessity, Mitigation, and the Trial of the Abortionist's Killer
The New York Times has the story on the Kansas prosecution, headlined Manslaughter Defense Remains Open Issue in Doctor’s Killing. In part:
In a hearing here, Judge Warren Wilbert of Sedgwick County District Court refused a prosecution request to bar the defendant, Scott Roeder, from presenting evidence that might support a voluntary manslaughter conviction. But the judge did not promise to allow such evidence, stating instead that he would make such decisions on a “witness by witness” basis as the trial, set to begin on Wednesday, goes along.
Under state law, “an unreasonable but honest belief that circumstances existed that justified deadly force” can constitute voluntary manslaughter.
Leo and Koenig on Coercive Tactics and the War on Terror
This chapter discusses the history of the "third degree" to shed more light on the current torture debate. We note that there are numerous parallels between third degree techniques employed by American domestic interrogators in the early twentieth century and coercive techniques used by American military interrogators more recently. This domestic history of torture suggests important lessons for better understanding the dynamics and consequences of military torture and highlights possible pathways to reform. Abandoning abusive interrogation practices in favor of more professional approaches can strengthen institutional legitimacy, restore faith in our systems of justice, improve morale, and result in more reliable intelligence.
Tadros on Criminalization and Regulation
Victor Tadros (University of Warwick - School of Law) has posted Criminalization and Regulation (R.A. Duff, L. Farmer, S.E. Marshall, M. Renzo, and V. Tadros, BOUNDARIES OF THE CRIMINAL LAW, Oxford: OUP, Forthcoming) on SSRN. Here is the abstract:
What ought to be the scope of the criminal law? The most familiar way to approach this question is to consider what moral constraints there might be on the decision whether to criminalize some conduct. It is not permissible to criminalize some conduct, it might be argued, unless that conduct is harmful, or it is publicly wrongful, or it is deserving of punishment, or some combination of these. Answers of this kind are likely to be highly indeterminate. The best efforts to produce principled constraints on the criminal law, even were they endorsed by policy makers, might do little to constrain its expansive and expanding scope. Even if we think that there are many constraining principles and each must be satisfied for criminalization to be permissible, our principles would warrant the criminalization of many things that we do not wish to see criminalized.
There is another approach to the question of the scope of the criminal law which is both less familiar and less well developed. It is comparative. We investigate whether criminalization is permissible given the alternatives available to us. We ought to criminalize some conduct only if doing so is permissible given the other possible things that we could do in response to that conduct, including nothing. We might conclude that although some conduct is harmful, publicly wrongful and in principle deserving of punishment, we ought not to criminalize it because it is a disproportionate response to the conduct we are concerned with. It is disproportionate because some less draconian alternative is available to us.
My aim in this chapter is to make some progress with this approach to criminalization by comparing criminalization of some conduct with civil regulation of the same conduct. By civil regulation I mean laws that are imposed by the state that impose some kind of liability on those who breach the regulation, but which are not criminal. Private wrongs, such as torts and breaches of contract, count as one kind of civil regulation. Private law typically regulates conduct by requiring citizens to compensate the person who has been harmed by breach of the relevant regulation. In order to claim compensation, the individual harmed must bring an action against the individual who has harmed her.
January 12, 2010
Transcript from Today's Argument in United States v. Comstockis here.
Alexander on the Reputational Penalty for Corporate Crime
Cindy R. Alexander (U.S. Securities and Exchange Commission) has posted On the Nature of the Reputational Penalty for Corporate Crime: Evidence on SSRN. Here is the abstract:
Recent literature on optimal sanctions for corporations has focused on coordination and refinement of criminal, civil, and market-based sanctions. This paper contributes to emerging evidence on the reputational penalties that public corporations pay for federal crimes. First, it is shown that offenses harming only private parties and not government tend to be addressed through civil or market-based and not criminal sanctions. Second, when criminal allegations do arise, they are often surrounded by reports of terminated or suspended customer relationships and of management or employee turnover. These reports are more frequent if damaged parties are customers, as in fraud, than if they are third parties, as in environmental crime, and if stock prices decline significantly at the first news of crime. All of these features are consistent with characterizations of reputational penalties found in the literature. Findings on the non-atomistic nature of damaged parties suggest directions for future research.
Opinion in Smith v. Spisak
is here. Here is the syllabus:
After the Ohio courts sentenced respondent Spisak to death and deniedhis claims on direct appeal and collateral review, he filed a federal habeas petition claiming that, at his trial’s penalty phase, (1) the in-structions and verdict forms unconstitutionally required the jury to consider in mitigation only those factors that it unanimously found to be mitigating, see Mills v. Maryland, 486 U. S. 367, and (2) his counsel’s inadequate closing argument deprived him of effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668. The District Court denied the petition, but the Sixth Circuit accepted both arguments and ordered relief.
1.Because the state court’s upholding of the mitigation jury instructions and forms was not “contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by [this] Court,” 28 U. S. C. §2254(d)(1), the Sixth Circuit was barred from reaching a contrary decision. The Court of Appeals erred in holding that the instructions and forms contravened Mills, in which this Court held that the jury instructions and verdict forms at issue violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist, 486 U. S., at 380–381, 384. Even assuming that Mills sets forth the pertinent “clearly established Federal law” for reviewing the state-court decision in this case, the instructions and forms used here differ significantly from those in Mills: They made clear that, to rec-ommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously. Nor did they say anything about how—or even whether—the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall question of balancing the aggravating and mitigating factors, and they repeatedly told the jury to consider all relevant evidence. Thus, the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the constitutional error in the Mills instructions. Pp. 2–9.
2. Similarly, the state-court decision rejecting Spisak’s ineffective-assistance-of-counsel claim was not “contrary to, or . . . an unreasonable application” of the law “clearly established” in Strickland. §2254(d)(1). To prevail on this claim, Spisak must show, inter alia, that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, at 694. Even assuming that the closing argument was inadequate in the respects claimed by Spisak, this Court finds no “reasonable probability” that a better closing argument without these defects would have made a significant difference. Any different, more adequate closing argument would have taken place in the following context: Spisak’s defense at the trial’s guilt phase consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. Counsel, apparently hoping to demonstrate Spisak’s mentally defective condition, called him to the stand, where he freely admitted committing three murders and two other shootings and repeatedly expressed an intention to commit further murders if given the opportunity. In light of this background and for the following reasons, the assumed closing argument deficiencies do not raise the requisite reasonable probability of a different result but for the deficient closing. First, since the sentencing phase took place immediately after the guilt phase, the jurors had fresh in their minds the government’s extensive and graphic evidence regarding the killings, Spisak’s boastful and unrepentant confessions, and his threats to commit further violent acts. Second, although counsel did not summarize the mitigating evidence in great detail, he did refer to it,and the defense experts’ more detailed testimony regarding Spisak’s mental illness was also fresh in the jurors’ minds. Third, Spisak does not describe what other mitigating factors counsel might have mentioned; all those he proposes essentially consist of aspects of the“mental defect” factor that the defense experts described. Finally, in light of counsel’s several appeals to the jurors’ sense of humanity, it is unlikely that a more explicit or elaborate appeal for mercy could have changed the result, either alone or together with the foregoing circumstances. The Court need not reach Spisak’s claim that §2254(d)(1) does not apply to his claim, because it would reach the same conclusion even on de novo review. Pp. 9–16.
512 F. 3d 852, reversed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined, and in which STEVENS, J., joined as to Part III. STEVENS, J., filed an opinion concurring in part and concurring in the judgment.
"Terror Suspect’s Lawyer Asks for Dismissal of Case"
The New York Times article is here:
A federal judge in Manhattan was asked on Monday to dismiss an indictment against a terror suspect whose lawyer argued that his nearly five-year detention in secret C.I.A. prisons and later at Guantánamo Bay, Cuba, was “perhaps the most egregious violation in the history of speedy-trial jurisprudence.”
The judge, Lewis A. Kaplan of United States District Court, listened as a lawyer for the suspect, Ahmed Khalfan Ghailani, indicated that he was not challenging the government’s authority to decide to detain his client or the wisdom of that decision. The government held Mr. Ghailani to try to obtain intelligence about Al Qaeda.
But the government “cannot have it both ways,” said the lawyer, Peter E. Quijano.
Once these decisions are made, he added, “they can’t just simply change their mind, their political mind, 57 months later, and say, ‘You know, that indictment before Judge Kaplan? Let’s try it now.’ ”
The judge did not say when he would rule. The debate over the significance of the delays in bringing Mr. Ghailani to trial arises in a case that is seen as crucial because it could foreshadow a key issue in the prosecution of Khalid Shaikh Mohammed, the professed organizer of the 9/11 attack, and four other Guantánamo detainees accused in the plot who were recently ordered to New York for trial.
Sklansky on Hearsay
First, the hearsay rule has earned its unpopularity. It excludes too much probative evidence with too little justification. This is especially true of the uncompromising, eighteenth-century version of the hearsay rule the Supreme Court has now read into the Sixth Amendment. Second, by treating the Confrontation Clause as, first and foremost, a codification of eighteenth-century evidence rulings, the Crawford line of cases diverts attention from dimensions of confrontation not captured by the hearsay rule – dimensions that may grow increasingly important as scientific evidence plays a larger and larger role in criminal prosecutions. Third and finally, by constitutionalizing the hearsay rule, but only as it applies to evidence introduced against criminal defendants, Crawford threatens to impede the cross-fertilization between the doctrines governing out-of-court statements in criminal cases and the parallel rules in civil cases.