October 2, 2010
Symposium on Brady and other disclosure obligations
Ellen Yaroshefsky (pictured) (Benjamin N. Cardozo School of Law) has posted Foreword - New Perspectives on Brady and Other Disclosure Obligations: What Really Works? on SSRN, and she and Jennifer Blasser (Benjamin N. Cardozo School of Law) have posted New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices on SSRN. Here is the abstract for the foreword:
Nearly fifty years after the Supreme Court decided Brady v. Maryland, state and federal criminal justice systems appear less than adequate in assuring that prosecutorial disclosure obligations are met. Recent high-publicity cases have highlighted failures to disclose fundamental exculpatory evidence to the defense, whether intentional or not. A November 2009 symposium at the Cardozo School of Law - New Perspectives on Brady and Other Disclosure Obligations: What Really Works? - explored these issues in a unique framework for the criminal justice system. It considered lessons from the fields of medicine, business, psychology, and policing as to their methods for managing information, optimizing performance, and insuring quality. This Foreword provides an overview of the discussions, reports, and papers from the symposium.
And here is the abstract for the other piece:
The most effective and ethical prosecutor’s office is one where the leader sets a tone of ethical behavior, then hires and trains lawyers with good character and good judgment. In November 2009, the Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, convened at the Benjamin N. Cardozo School of Law to explore and identify the best practices that lead to such an office. Participants in the Symposium—including
representatives from state and federal prosecutors’ offices, defense lawyers, judges, legal academics, cognitive scientists, social psychologists, doctors, as well as members of the medical and corporate risk management fields—took an inter-professional approach to the core issues affecting prosecutors’ offices from around the country.
To structure the discussion in advance of the Symposium approximately seventy-five participants were split into six Working Groups, each meeting to discuss a core issue. Each group had a reporter and a discussion leader who circulated to the participants short papers setting forth the issues and alternative views. During the Symposium, the groups met for five hours to discuss the issues and to try to reach a consensus about particular practices. This Article presents the findings of each of the six Working Groups.
Part I discusses prosecutorial disclosure obligations and practices. Part II discusses the disclosure process. Part III discusses training and supervision. Part IV discusses systems and culture. Parts V and VI discuss internal and external regulation, respectively.
October 1, 2010
Cox on the Washington recidivist statute
Jennifer M. Cox has posted Life in Prison for Stealing $48? Rethinking Second Degree Robbery as a Strike Offense in Washington State (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:
The Washington State legislature should remove second degree robbery as a viable final strike because of the large sentencing disparity between the POAA’s mandatory sentence of life without parole versus the Washington State Sentencing Guidelines Commission’s sentencing range for this offense. However, second degree robbery should remain as a viable first or second strike offense to serve the goal of deterrence, and failing that, to ensure that offenders whose crimes escalate in violence are removed from society by incarceration.
This Comment begins by discussing the history of three strikes legislation both nationally and in Washington State and explains why three strikes laws became popular in the mid 1990’s. Part II also addresses the elements and sentencing of second degree robbery under Washington’s current sentencing structure. Part III provides an overview of the sentencing process in Washington State including the background of the Washington Sentencing Guidelines Commission and its goals, the role of both the Washington State Clemency and Pardons Board and the governor in granting clemency, as well as the severity of life in prison without parole. Part IV addresses why the POAA should be amended to better align with the reality of how Washington prosecutors use second degree robbery as a strike offense. Part IV also assesses the disconnect between the outcomes of three strikes laws and the goals behind them and the politics behind criminal sentencing legislation.
"China not considering eliminating death penalty for corruption"
Jurist has this story, covering remarks by a legislator:
Earlier this year, the Supreme People's Court of China issued new guidelines for limiting capital punishment in Chinese courts. The guidelines instruct courts to issue the death penalty only to those who commit "extremely serious" crimes. However, the guidelines also state that reprieves should be issued in certain cases as allowed by law.
Readability, probation conditions, and Ronald Dworkin
My colleague, Shaun Martin (pictured), discusses the following case on readability of probation conditions over at California Appellate Report. In deciding the trial court could have done better, the court of appeal compares the trial court's prose with that of Ronald Dworkin (not pictured). In Shaun's words, the court of appeal
uses an online scoring system for readability -- which is actually pretty neat -- and says that the trial court's condition has a grade level of 28 years whereas the Court of Appeal's formulation has a grade level of around 7 years.
The problem is that those "readability" scoring systems are way too simplistic. . . . Footnote six of the opinion, to me, proves the problem. Justice Rushing writes that "Clarity is possible even where the concept is complex." Dropping a footnote that reads: "The phrase 'Discretion, like the hole in a doughnut, does not exist except as an idea left open by a surrounding belt of restriction,' has a readability score of 10.74. The words are from R. Dworkin, Taking Rights Seriously (Harvard 1978) p. 31."
Bottom line: if you're unclear at the prose level, you never get a chance truly to confuse people at the idea stage.
Charges and potential charges in Clementi case
The New York Times has this article discussing the case of the college student who committed suicide after becoming aware that his roommate had apparently streamed on the internet a video of the student having a homosexual encounter. Here is a discussion of the current charges. Query whether they could/should be an adequate predicate for a felony-murder prosecution, and whether the penalty range for the underlying offenses are sufficient for the harm caused and/or foreseeable:
The Middlesex County prosecutor’s office said Mr. Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and another classmate, Molly Wei, 18, of Princeton Junction, N.J., had each been charged with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. The most serious charges carry a maximum sentence of five years.
Mr. Ravi was charged with two additional counts of invasion of privacy for trying a similar live feed on the Internet on Sept. 21, the day before the suicide. A spokesman for the prosecutor’s office, James O’Neill, said the investigation was continuing, but he declined to “speculate on additional charges.”
Humbach on Teens, Porn, and Videogames
John A. Humbach (Pace University School of Law) has posted Teens, Porn and Videogames: Time to Rethink Ginsberg? on SSRN. Here is the abstract:
This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally “protected”) pornography to persons under age 17.
The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational basis review on reasoning that was analytically flawed. Not only was the reasoning circular but it was founded on the startling idea that states have the power to modify the scope of a constitutional concept (i.e., obscenity) and, therefore, to cut down constitutional rights.
It is doubtful that Ginsberg could be decided on the same reasoning today and, on its record, it probably could not have the same outcome. Rather than gloss over or ignore the analytical flaws of Ginsberg, the Court should take the occasion to rethink Ginsberg and to place this area of law, and minors' constitutional rights, on a sounder footing that is in harmony with the rest of First Amendment law.
September 30, 2010
L.A. Times inaugurates new crime database
The story is here:
Both agencies, like many other police departments throughout the country, have long used computer mapping programs internally to detect crime patterns, develop strategies and determine how to deploy officers. In recent years they have been experimenting with ways to make crime data available to the general public in bulk, electronic form — often hiring outside companies to build online crime maps or, in some cases, posting raw crime data online that can be downloaded.
The Times' crime mapping program, which debuts Thursday, goes a step further, allowing users to analyze crime statistics, search historic crime patterns and receive alerts when several crimes occur in an area over a short period of time. As is common practice when releasing information about reported crimes, the LAPD and Sheriff's Department provide the block where a crime occurs, instead of the exact address.
"Missing Man Looms Large in Murder Trial"
The New York Times has this interesting piece on a murder trial in New Haven, discussing the defense strategy of suggesting at the guilt phase that an accomplice is more culpable in hopes of affecting the jury's penalty recommendation:
Putting Mr. Komisarjevsky figuratively on trial, lawyers with experience in capital cases say, is unlikely to have much effect in this first phase of Mr. Hayes’s trial to determine whether he is to be convicted of the crime. But it is a common defense strategy to plant seeds for a potential second phase of the trial that would determine whether he will be sentenced to death.
If there is a second phase, the jurors will have already heard Mr. Hayes’s version, however credible, that the crime would not have occurred without Mr. Komisarjevsky. While Mr. Hayes was out of the house, his lawyer Mr. Ullmann told the jurors, Mr. Komisarjevsky’s assault of Michaela “changed the scenario.”
"Rights groups urge Obama to halt use of local authorities in immigration enforcement"Jurist has the story here, regarding this letter sent by more than 500 groups.
Orenstein on Prosecutorial Denial in Postconviction Cases of Actual Innocence
Aviva Orenstein (Indiana University Mauer School of Law) has posted Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.
This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.
As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).
This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.
Part I of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part II documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence . Part III attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases, the role of denial. Part IV examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part V draws on these (?) insights about prosecutorial denial to examine structural solutions, including possible changes to ethical codes, to the urgent problems posed by postconviction innocence.
Best-if-killed-by date on lethal drug and the California death penalty
The Los Angeles Times has this story:
California's effort to carry out its first execution in nearly five years collapsed Wednesday when the state Supreme Court ended a furious legal battle, giving a convicted rapist and murderer a reprieve that could last until at least next year.
. . .
Prison officials had scheduled Brown's execution for 9 p.m. Thursday, just three hours before the state's only supply of a key drug used in the lethal injection expires. State attorneys have said that fresh supplies of the powerful anesthetic sodium thiopental could not be obtained until at least next year.
The Supreme Court faulted the state for seeking to carry out the sentence so close to the drug's expiration date, saying that effort had "contributed to circumstances incompatible with the orderly resolution" of legal issues surrounding the death penalty.
September 29, 2010
Iowa symposium on peremptory jury challenges: call for papers
The call for papers for this proposed symposium marking the 25th anniversary of Batson v. Kentucky follows the jump. A live symposium is anticipated for October 2011.
CALL FOR PAPERS: FOR A PROPOSED SYMPOSIUM to mark the 25th anniversary of the
United States Supreme Court’s landmark opinion in Batson v. Kentucky (1986), THE
UNIVERSITY OF IOWA COLLEGE OF LAW invites submissions. The symposium is
prompted by a need for reflection upon what a quarter-century of experience with the revolutionary
constitutional restrictions that Batson and its progeny have imposed on peremptory jury challenges
means for the criminal justice system. Submitted work should be prompted by the Batson doctrine
(its impact, consequences and implications for the future) or, more broadly, by other concerns
regarding the theory and function of the peremptory challenge. We encourage a broad range of
doctrinal and methodological approaches to these questions, and both legal and social science
scholars are welcome to participate. We anticipate a live symposium in October of 2011 and
publication of the completed papers in a to-be-determined format. The conference planners reserve
the right to solicit authors independently of this call for papers and to condition going forward on
sufficient submissions of interest and quality.
Those interested in participating should submit a one paragraph summary of the paper they will
present and an abstract of no more than 750 words that outlines the structure and content of the
paper in more detail. The deadline for expressions of interest is December 15, 2010. More detailed
outlines will be due at a later date. Final manuscripts will be due three weeks before the symposium.
Submit summaries and abstracts via email in either Word or PDF format to: jamestomkovicz@
uiowa.edu. Inquiries about the symposium can be made to Professor Tomkovicz at the
Burke on Talking About Prosecutors
This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings. Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers. The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement. In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making. A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.
Stribopoulos on Low Visibility Encounters and Packer's Models
James Stribopoulos (Osgoode Hall Law School) has posted Packer's Blind Spot: Low Visibility Encounters and the Limits of Due Process vs. Crime Control on SSRN. Here is the abstract:
This paper will proceed in three parts. In Part I, Packer’s seminal theory will be introduced and his two models briefly explained. Next, in Part II, the paper will review the competing accounts of the criminal process that have emerged to challenge Packer’s theory. Finally, in Part III, the paper will offer a critique of Packer’s theory by drawing on the empirical research (reviewed in Part II(a)), as well as the experience in both the United States in Canada since Packer penned his account.
September 28, 2010
The Suspicious Activity Reporting Initiative
From an op-ed--generally favoring the program but noting objections--entitled "How to Spot a Terrorist" by John Farmer in the New York Times:
Suspicious Activity Reporting begins at the troubling intersection where law enforcement meets intelligence. Its premise is that if potential attacks are to be prevented, and not merely responded to, law enforcement must focus on precursor conduct — surveillance or “casing” of bridges or train stations, for instance — that may not itself be criminal, but may signal a coming attack.
. . .
The Suspicious Activity Reporting program recognizes both the necessity for a focus on precursor conduct and the potential for abuse. It strikes a balance by establishing a uniform process for gathering and sharing information. It seeks to avoid racial profiling and other law enforcement excesses by requiring that the reports be based on the evidence of suspicious conduct, not on what the person looks like or where he comes from.
Today's crim law and procedure cert grants
Issue summaries are from ScotusBlog, which also links to cert documents and opinions below for some of the cases (and likely in all of the cases soon):
- Kentucky v. King: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?
- United States v. Tinklenberg: Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
- Bullcoming v. New Mexico : whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe.
- Freeman v. United States.: whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison
- Sykes v. United States .: whether it is a “violent felony” justifying a longer sentence under the armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop
Maroney on Adolescent Brain Science after Graham v. Florida
In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general propositions as to the normal developmental course of adolescence. As the cases’ potential impact was set to one side in False Promise, the Essay both supplements that Article and reflects on its conclusions.
I predict that Graham’s most dramatic effects will have little to do with developmental neuroscience. Its most significant downstream effects likely will manifest in evaluation of term-of-years sentencing and opportunities for parole. As to adolescent brain science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers – whether in courts or legislatures – who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should – for the many reasons articulated in False Promise, which remain unaltered – be resisted.
September 27, 2010
"Should sex offenders get GPS before leaving prison?"
From today's San Diego Union-Tribune, questioning the California regime under which prisoners have one business day after release to report to their parole officer to get their GPS device:
At least twice in the past month, sex offenders prompted multi-agency manhunts in the North County when they refused to be monitored by GPS — a responsibility that falls on the offenders when they get out of prison.
One man, who is accused of committing a sex crime the day after being paroled, was caught days later, while the second surrendered to authorities three weeks after going offline.
The murder-manslaughter line in the news: conviction in Adenhart case
The Associated Press reports on today's conviction of the drunk driver who killed three people, including a pitcher for a major-league baseball team:
Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.
To win a murder conviction, prosecutors had to show Gallo acted with implied malice: intentionally drove drunk; acted with a conscious disregard for human life; and knew from his personal experience that he could kill someone.
. . .
Prosecutors had alleged in the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.
Prosecutor Susan Price told jurors during her closing argument that Gallo . . . had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.
Gallo's attorney said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel. By that point, Goodman argued, Gallo was too drunk to realize the consequences of driving drunk.
"U.S. Tries to Make It Easier to Wiretap the Internet"
From the New York Times:
WASHINGTON — Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.
Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages
. . .
James X. Dempsey, vice president of the Center for Democracy and Technology, an Internet policy group, said the proposal had “huge implications” and challenged “fundamental elements of the Internet revolution” — including its decentralized design.