July 17, 2010
"When Do a Criminal Defendant’s Compulsory Process/Due Process/Confrontation Rights Trump Evidentiary Privileges?"Eugene Volokh has this useful post at The Volokh Conspiracy, highlighting a recent case from the Indiana Court of Appeals.
"Texas Judge Reprimanded in Death Row Case"
From The New York Times:
A judicial panel on Friday reprimanded a Texas judge who declined to keep the courthouse open for a last-minute appeal from a death row inmate.
. . .
On Sept. 25, 2007, when lawyers for Michael W. Richard asked the court to stay open to receive an appeal, Judge [Sharon} Keller reportedly told the clerk, “We close at 5 p.m.” Mr. Richard, who had been convicted of rape and murder, was executed that night.
"New York governor signs law banning 'stop and frisk' database"
Jurist has the story, quoting the governor's views:
There is a principle - which is compatible with the presumption of innocence, and is deeply ingrained in our sense of justice - that individuals wrongly accused of a crime should suffer neither stigma nor adverse consequences by virtue of an arrest or criminal accusation not resulting in conviction. ... Those accused of a crime are permitted to have their records sealed upon the dismissal of the charges. Therefore, simple justice as well as common sense suggest that those questioned by police and not even accused of a crime should not be subjected to perpetual suspicion.
New York City's mayor opposed the law.
July 16, 2010
"Officer Sues Over Arizona Immigrant Law"
The story is in the Wall Street Journal:
PHOENIX—A lawyer for a Phoenix police officer told a federal court Thursday his client could be sued for racial profiling if he enforces Arizona's new immigration law. It is the first hearing in a series of legal challenges filed over the controversial crackdown which has divided law enforcement in the state and across the country.
Officer David Salgado, a 19-year veteran of the Phoenix police department, could also lose his job if he fails to enforce the new law, his attorney said.
. . . .
Attorneys for Arizona Gov. Jan Brewer told the judge that the lawsuit, which was also filed by an advocacy group called Chicanos Por La Causa, should be dismissed because the police officer and the group have no valid claim of immediate harm and the state law doesn't trump federal immigration law.
"Fixing California's Death Penalty Appeals"
Kent Scheidegger has this post at Crime and Consequences. In part:
amend the rules on counsel qualifications to expand the pool of qualified attorneys. California's standards are among the most restrictive in the nation, and we are getting little in return for this unnecessary restrictiveness.
Chin & Love on Padilla v. Kentucky
Gabriel J. Chin (pictured) and Margaret Colgate Love (University of Arizona James E. Rogers College of Law and Law Office of Margaret Love) have posted Status as Punishment: A Critical Guide to Padilla v. Kentucky (Criminal Justice, Forthcoming) on SSRN. Here is the abstract:
There are only a handful of Supreme Court decisions in the past 50 years that can be said to have transformed the operation of the criminal justice system. Padilla v. Kentucky may be such a case. In Padilla, the Court ruled that criminal defense lawyers must advise their non-citizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment. The decision represents an important first step toward imposing constitutional discipline on the plea bargaining process. As a practical matter, the decision will affect how all participants in a criminal case conduct themselves, not just defense counsel.
Padilla offers important protections for non-citizens who are in the criminal justice system. But it has broader implications. In requiring consideration of indirect as well as direct consequences of conviction in connection with bargaining over the appropriate penalty, the decision implicates the concept of truth in sentencing itself. Yet it is less surprising that the Court should extend the right to counsel to collateral consequences at the plea stage, than that it took so long to do so. This essay places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in policy terms. It argues that the logic of the Padilla decision is not confined to deportation but extends to other severe and certain collateral consequences of conviction. It reviews the reasons given for treating collateral consequences differently from other important consequences of conviction, and concludes that there is no principled basis for that distinction. Imposing collateral consequences has become an increasingly important function of the criminal justice system, so that they have to all intents and purposes become part and parcel of the criminal case. Accordingly, an expanded duty of counsel represents sound public policy, based on considerations of safety and efficiency, judicial integrity, and fairness to individuals. Finally, the essay describes efforts underway by the ABA and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice about collateral consequences without unreasonable expense or delay.
July 15, 2010
Goodno on Marital Communications Privilege in Child Molestation Cases
Naomi Goodno (Pepperdine University School of Law) has posted Protecting 'Any Child': The Use of the Confidential Marital Communications Privilege in Child Molestation Cases (Kansas Law Review, 2010) on SSRN. Here is the abstract:
Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege.
Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications privilege. However, if the defendant has molested a neighbor’s child or child unrelated to the family at the neighborhood park, and confessed that crime to the spouse, then the confession is privileged.
This article sets forth reasons why limiting the marital privilege exception to “the child of either” spouse or to the “child residing in the home” is unreasonable. All children, regardless of their connection to the family, should be protected, particularly in child molestation cases which are often difficult to prosecute given the lack of witnesses and physical evidence. Jurisprudence, public policy, and legal theory all lead to the same conclusion: that courts and state legislatures should adopt an exception to the confidential marital communications privilege in cases involving the molestation of “any child.”
The first half of the article sets forth the legal history of the marital privilege and the current landscape of exceptions to it in child abuse cases. The Appendix to the article groups the exceptions of all federal and state jurisdictions into three categories. The second half of the article sets forth reasons why the “any child” exception should be adopted and also how federal courts and state legislatures can do so. As part of this analysis, I have drafted proposed legislation.
"Mel Gibson tapes: Some experts doubt they can be used in court"
The story is in the Los Angeles Times:
Audio recordings in which actor Mel Gibson seems to acknowledge hitting his ex-girlfriend have been making headlines all week. But legal experts say it's highly debatable whether the recordings would be admissible even if the case were to go to criminal court.
Of the audio clips released, the most damaging in a criminal case likely would be an exchange in which Gibson apparently tells Russian model and former girlfriend Oksana Grigorieva she “deserved” to be hit.
But the volatile conversation, in which Gibson also uses derogatory terms for women, Latinos and African Americans, seems to have been recorded without the “Lethal Weapon” star’s permission.
"Examining Miranda’s Future"ACSBlog links to a panel discussion on the topic.
July 14, 2010
Jurors, Attempts, and Blagojevich
The Wall Street Journal's article suggests problems with the prosecutor's case:
But even a host of character flaws may not persuade the jury that Mr. Blagojevich—who faces 24 corruption counts—committed any crime. Legal experts say the government's case is strong but cite a big caveat: Jurors like completed acts, and most of the plans Mr. Blagojevich allegedly hatched weren't carried out.
The U.S. Senate seat he is accused of auctioning wasn't sold. The Chicago newspaper Mr. Blagojevich was said to have strong-armed didn't fire anyone. The president of the Children's Memorial Hospital didn't give Mr Blagojevich the $50,000 campaign contribution he allegedly demanded.
The jurors will be instructed that in the case of conspiracy, intending to commit a crime is enough, said Ronald S. Safer, a former federal prosecutor turned white-collar defense attorney. And they will be told that prosecutors acted when they did to stop a crime wave before it happened.
But Mr. Safer acknowledged it is a lot easier to convict somebody of doing something rather than intending to do something.
"Federal judge refuses to dismiss charges against ex-Guantanamo detainee "Jurist has the story on the opinion rejecting the speedy-trial challenge notwithstanding a delay of almost five years. The opinion is here.
July 13, 2010
Chiesa on Consent to Battery
Luis E. Chiesa (Pace University School of Law) has posted Consent is Not a Defense to Battery: A Reply to Professor Bergelson (Ohio State Journal of Criminal Law, Vol. 9, No. 1, Fall 2011) on SSRN. Here is the abstract:
In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.
In Part I, I argue that there are three ways of conceiving the interest sought to be protected by the offense of battery. These approaches provide different accounts of the exculpatory nature of consent in battery cases, none of which is compatible with the claim that consent operates as a justification defense.
In Part II, I argue that, contrary to what several criminal theorists have argued, the offense of battery does not seek to protect personal autonomy. Therefore, I claim that the exculpatory role of consent in cases of battery cannot be explained by claiming that recognizing consent as a defense vindicates the victim’s autonomy. Instead, I suggest that consent is relevant only insofar as it reveals that the infliction of bodily harm was socially acceptable.
In Part III, I argue that consent to battery currently operates as a factor that modifies the definition of the offense in a way that demonstrates that the defendant did not engage in the type of conduct that the legislature desired to prohibit as battery. Furthermore, I claim that the offense of battery seeks to prevent the infliction of non-trivial physical harm in circumstances where the infliction of such harm is not considered a normal occurrence given current societal practices. Consequently, I suggest that consent is relevant in cases of battery only when, in conjunction with other factors, it reveals that the perpetrator’s infliction of bodily harm was a normal occurrence rather than an extraordinary or regrettable event.
Swiss will not extradite Polanski
The Los Angeles Times has the story:
The Swiss justice ministry cited the meeting in a statement explaining its decision, saying that a U.S. court's ruling that kept some records about the meeting secret created "persisting doubts concerning the presentation of the facts of the case."
"In these circumstances, it is not possible to exclude with the necessary certainty that Roman Polanski has already served the sentence he was condemned to at the time," the statement said.
Los Angeles County Dist. Atty. Steve Cooley said he was "genuinely surprised and disappointed" by the legal reasoning behind the decision.
July 12, 2010
Bailey on Domestic Violence and the Criminal Justice System
Kimberly Bailey (Chicago-Kent College of Law) has posted Lost in Translation: Domestic Violence, ‘The Personal is Political’, and the Criminal Justice System (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as undermining victim autonomy. This criticism is puzzling given the fact that these policies were drafted in response to the activism of feminists involved in the women’s liberation movement and that autonomy, or the agency of women, was a key goal of this movement. This apparent paradox can be explained, however, by the fact that activists involved in the early battered women’s movement and actors in the current criminal justice regime speak in two different “languages”. Thus, complete victim autonomy is a concept that got lost in the translation of some of the goals of the early battered women’s movement into criminal justice policy. While this Article acknowledges that victim autonomy is not the chief goal of the criminal justice system, it still urges proponents of current criminal justice policies to take seriously the fact that a high number of victims currently do not want to engage with the criminal justice system. This number is an important metric in analyzing the effectiveness of domestic violence policies. First, it underscores the fact that improvements need to be made in victims’ interactions with the criminal justice system and in the criminal justice system’s response to those victims who do ask for help. Second, it highlights the fact that the criminal justice system is a limited tool in addressing what is a social, political, and economic problem. For this reason, a criminal justice solution should be part of broader domestic violence policies that address the complexity of this issue. The economic disparities that women experience as a class and the intersectionality of race, class, sexuality, and gender are important aspects of a broader approach to the domestic violence problem.
Roach and Anand on Canadian Homicide Law
Kent Roach and Sanjeev Anand (University of Toronto - Faculty of Law and University of Alberta - Faculty of Law) have posted Inertia, Uncertainty, and Canadian Homicide Law: An Introduction to the Special Issue (Alberta Law Review, Vol. 47, No. 3, 2010) on SSRN. Here is the abstract:
The government’s reluctance to reform the law of homicide can be observed in both the United Kingdom and Canada. This collection of essays contained within the special issue entitled “Rethinking Canadian Homicide Law” exposes some of the uncertainties in Canadian homicide law. Every article either urges legislative reform to address the ambiguities that exist in Canadian homicide law, or demonstrates the efficacy with which legislative reform can change problematic judicial attitudes. Professor Larry Wilson in his article on the law of manslaughter argues that although the Supreme Court has recently clarified certain issues surrounding this offence, there remains much that needs to be resolved by Parliament. Professor Kent Roach’s article on unlawful object murder demonstrates that legislative inertia surrounding the murder provisions has led to cases overturning murder convictions and ordering new trials because trial judges have left juries with s. 229(c) that still includes an unconstitutional negligence arm. Professor Sanjeev Anand’s article on infanticide outlines a number of unclear aspects concerning the offence/defence and he makes suggestions about the proper interpretation of the infanticide provisions by resorting to a number of means including the legislative history of the provisions. Professor Wayne Renke in his article tackles the subject of provocation head-on by noting that there have been calls for the repeal of the controversial partial defence for condoning and privileging homicidal and often male rage. The article by Professor Isabel Grant makes a connection between substantive law and sentencing law by examining sentencing trends for men who kill their intimate partners. In conclusion, it is hoped that the articles will provide some assistance to both Parliament and the courts as they struggle with the many ambiguities and anachronisms that unfortunately pervade Canadian homicide laws.
July 11, 2010
Top-Ten Recent SSRN Downloads
|1||366||Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction |
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010
|2||317||War and Peace in the Jury Room: How Capital Juries Reach Unanimity |
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: May 12, 2010
|3||165||Two Kinds of Retributivism |
Mitchell N. Berman,
University of Texas School of Law,
Date posted to database: April 20, 2010 [5th last week]
|4||124||Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice |
Dan Markel, Chad Flanders,
Florida State University College of Law, Saint Louis University - School of Law,
Date posted to database: April 14, 2010 [6th last week]
|5||119||The Swan Song of Universal Jurisdiction in Spain |
Ignacio de la Rasilla del Moral,
Royal Complutense College in Harvard,
Date posted to database: April 16, 2010 [8th last week]
|6||118||From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? |
Henning Grosse Ruse-Khan,
Max Planck Institute for Intellectual Property, Competition & Tax Law,
Date posted to database: May 4, 2010 [7th last week]
|7||110||The Conscience of a Prosecutor |
David J. Luban,
Georgetown University Law Center,
Date posted to database: May 24, 2010 [9th last week]
|8||83||Collective Responsibility and Post-Conflict Justice |
Mark A. Drumbl,
Washington and Lee University - School of Law,
Date posted to database: May 10, 2010 [new to top ten]
|9||82||Tunnel Vision |
Keith A. Findley,
University of Wisconsin Law School,
Date posted to database: May 12, 2010 [new to top ten]
|10||77||Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection |
Jennifer A. Chandler,
University of Ottawa - Faculty of Law - Common Law Section,
Date posted to database: April 21, 2010 [new to top ten]