Saturday, October 9, 2010
An interesting post over at Grits for Breakfast. In part:
Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn't agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, "Have you ever heard of Brady v. Maryland?," which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.
Paul H. Robinson (University of Pennsylvania Law School) has posted Mercy, Crime Control & Moral Credibility on SSRN. Here is the abstract:
If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more likely the writer is to mistake judgments of blamelessness for exercises of mercy.
Friday, October 8, 2010
Issue summaries are from ScotusBlog, which also has links to briefs and opinions below:
Tuesday, Oct. 12
- Harrington v. Richter: (1) Did the Ninth Circuit err in finding that a lawyer provided ineffective assistance to a criminal defendant by declining to investigate or introduce expert testimony regarding certain blood stains? (2) Is a state court decision upholding a criminal conviction entitled to deference when challenged in a federal habeas proceeding if the state court issued a summary decision with no reasoning?
- Premo v. Moore: When a defendant has pleaded guilty, but later challenges his conviction on the ground that his lawyer should have moved to suppress his confession, is he entitled to habeas relief upon showing that his confession was coerced?
Wednesday, Oct. 13
- Skinner v. Switzer: When a convicted prisoner wishes to sue a state to obtain access to biological evidence for DNA testing, is he required to file a habeas petition or can he file a civil rights suit instead?
Thursday, October 7, 2010
Michael Pinard (University of Maryland Law School) has published Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity at The Legal Workshop. An excerpt:
While collateral consequences have always accompanied criminal convictions in the United States, their impact expanded dramatically during the 1980s and 1990s as part of the War on Drugs. And while these consequences have long been considered an afterthought in the criminal justice system, they have recently garnered increased attention, in large part because of the record numbers of individuals—recently eclipsing 700,000 per year—now exiting U.S. correctional facilities and returing to communities across the country. As a result, reentry—or, more accurately, mass reentry—has reached a critical point in the United States. The numerous collateral consequences that attach to convictions frustrate reintegration for both individuals and whole communities.
Orin Kerr has this post at The Volokh Conspiracy, discussing his appearance on the show:
Interestingly, I was on the same radio program back in 2003 making philosophically similar points in a totally different context. Back then, the issue was the Patriot Act, and there was a lot of hysteria about government surveillance. On the show, I tried to counsel caution, focus on what was actually in the law, draw analogies to off-line conduct, and make sure we weren’t letting our fears get the best of us. (I join at the 16-minute mark.) Today, the issue was cyberbullying and a criminal case that has a lot of people very upset. On the show, I tried to counsel caution, focus on what facts were actually known, draw analogies to off-line conduct, and make sure we weren’t letting our passions get the best of us.
Jonathan Jackson (pictured) and Ben Bradford (London School of Economics & Political Science - Methodology Institute) have posted two manuscripts on SSRN: The first is Trust and Confidence in the Police: A Conceptual Review. Here is the abstract:
In Britain, public confidence in policing has become a short-hand for trust, legitimacy and consent. As such, the phrase tends to wrap up a set of inter-connected yet empirically and conceptually distinct notions. Yet it is important to unpack these distinct, albeit connected, ideas. At the very least we should differentiate between trust and confidence on the one hand, and legitimacy, compliance, cooperation and consent on the other hand. In this article we: (a) introduce the concept of trust and confidence in the police; (b) document historical trends in trust and confidence; and (c) outline the factors thought to influence public confidence. We aim throughout to highlight key ideas, studies and debates.
The second manuscript is Police Legitimacy: A Conceptual Review. Here is the abstract:
Wednesday, October 6, 2010
David C. Gray (pictured) (University of Maryland - School of Law) and Jessica M Olive have posted A Modest Appeal for Decent Respect (Federal Sentencing Reporter, Vol. 23, No. 1, p. 72, October 2010) on SSRN. Here is the abstract:
In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these objections. That is because the Eighth Amendment’s prohibition on cruel and unusual punishment incorporates objective moral constraints rather than common public views held by Americans in 1792. While we acknowledge that courts asked to determine these objective constraints face a significant epistemic challenge. However, we suggest that the most reliable approach lies not with historical inquiry but with a method akin to that endorsed by Jürgen Habermas’s discourse ethics. In particular, to the extent that foreign, transnational, and international law addressing the cruelty of various punishment practices is the result of an inclusive process of open debate among those with an interest in the answer, we think that domestic courts are well-advised to follow Justice Kennedy’s example.
The New York Times has the story:
Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness.
. . .
[Defense counsel] had argued that their client was tortured while in C.I.A. custody, and that any statements he made or evidence derived from those statements was tainted and should be inadmissible.
Tuesday, October 5, 2010
The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.
Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors....
The report is available here.
Elizabeth E. Joh (U.C. Davis School of Law) has posted DNA Theft: Recognizing the Crime of Nonconsensual Genetic Collection and Testing (Boston University Law Review, Vol. 91, 2011) on SSRN. Here is the abstract:
The fact that you leave genetic information behind on the discarded tissues, used coffee cups, and smoked cigarettes everywhere you go is generally of little consequence. The trouble arises when third parties are interested in retrieving this detritus of everyday life for the genetic information you’ve left behind. These third parties may be the police, and the regulation over their ability to collect this evidence is unclear.
Monday, October 4, 2010
Andrew Choo (University of Warwick - School of Law) has posted Compelling the Provision of Information: The Privilege Against Self-Incrimination as a Human Right on SSRN. Here is the abstract:
This chapter considers aspects of the privilege against self-incrimination. The privilege is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. While a consideration of the privilege within the confines of a chapter must necessarily be selective, the operation of the privilege in England and Wales provides excellent fodder for examining the influence of human rights norms on an evidential principle. This chapter will ask whether it is clear from the relevant case law what the potential scope of the privilege is, and, relatedly, how the privilege might be justified. In particular, it seeks to explore, with reference to pre-existing documents and bodily samples, the application of the much-quoted statement of the European Court of Human Rights that the privilege does not apply to material ‘which has an existence independent of the will of the suspect’.