November 20, 2010
Anderson on Innocence and Harmless Error
Helen A. Anderson (University of Washington - School of Law) has posted Revising Harmless Error: Making Innocence Relevant to Direct Appeals on SSRN. Here is the abstract:
The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by "unvalidated/improper forensics," false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exoneration's.
November 19, 2010
Holbrook on Veterans' Courts and Criminal Responsibility
Justin G. Holbrook (Widener University School of Law) has posted Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma (YOUNG VETERANS: A RESILIENT COMMUNITY OF HONOR, DUTY & NEED, Diann Cameron Kelly, David Gitelson and Sydney Howe Barksdale, eds., Springer, Forthcoming) on SSRN. Here is the abstract:
In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court. For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons. First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat - rather than simply punish - those facing the liminal effects of military combat. Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators. Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma. This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.
"Notable new publication on deterrence from The Sentencing Project"
Doug Berman has the story at Sentencing Law and Policy, discussing this project from The Sentencing Project entitled Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment by Dr. Valerie Wright.
"Verdict dims outlook for civilian trials of terrorism detainees"
From the Washington Post:
What was a very bad day for Ahmed Ghailani, now a convicted felon likely to spend many years in a supermax prison, was also, because of the super-charged politics surrounding Guantanamo Bay, a pretty bad day for the Obama administration.
. . .
[T]he political reality is that the prospect of a tough sentence for conspiracy to destroy U.S. property by fire or explosives was largely swallowed up by a stunning verdict in which Ghailani was acquitted of 284 counts, including all 224 murder counts.
. . .
Jack Goldsmith, a former Justice Department official in the George W. Bush administration and now a Harvard Law School professor, wrote on the Lawfare blog Thursday that the military detention option is a "tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever."
"Pat-Downs at Airports Prompt Complaints"
The New York Times story is here:
Some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.
November 18, 2010
Alderman & Lichstein on Discussing Ineffective Assistance Claims with Trial Counsel
Kim Alderman and Byron Lichstein (University of Wisconsin Law School and affiliation not provided to SSRN) have posted Pitfalls of Discussing IAC Claims with Trial Counsel (Wisconsin Law Journal, November 2010) on SSRN. Here is the abstract:
This is the second article in a two-part series on how to effectively litigate ineffective assistance of counsel (IAC) post-conviction claims. This article focuses on communicating with trial counsel in advance of an IAC hearing.
Saul on Criminality and Terrorism
Ben Saul (University of Sydney - Faculty of Law) has posted Criminality and Terrorism (COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, Katja Samuel et al., eds., World Justice Project: Nottingham University & Club of Madrid, Forthcoming) on SSRN. Here is the abstract:
This chapter identifies threats to the rule of law posed by criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. First, vague or over-inclusive definitions of terrorism raise serious concerns about freedom from retroactive criminal punishment. Secondly, ancillary, preparatory or inchoate offences (frequently attracting disproportionate penalties) which hang off the primary definition of terrorism in various legal systems have sometimes been crafted too broadly. Thirdly, group-based offences (such as membership, association or ‘material support’ offences) linked to the proscription of terrorist organizations often deny procedural fairness and rights of review. Fourthly, speech-related offences including incitement, advocacy or glorification of terrorism engage concerns about freedom of expression, of religion and from non-discrimination. Fifthly, the modification of traditional criminal procedure in dealing with terrorism impairs fair trial rights and the independence and impartiality of tribunals. Finally, boundaries of different branches of law (including domestic criminal law and international humanitarian law) have been blurred, risking double jeopardy and generating problems for the integrity of all such branches of law.
"Federal judge denies motion for mistrial in ex-Guantanamo detainee trial"
Jurist has this story:
The motion came after an anonymous juror's note was read in court, indicating that the juror was alone in her views and was being attacked for her conclusions [NYT report]. The juror requested to be removed or replaced.
November 17, 2010
Sarma on Peremptory Challenges
Bidish Sarma (The Justice Center's Capital Appeals Project) has posted Response to 'Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges' (Michigan Law Review First Impressions, Vol. 109, p. 42, 2010) on SSRN. Here is the abstract:
John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke [hereinafter Miller-El II]. If lawyers challenging discriminatory peremptory strikes and trial courts replicate Snyder's single-juror approach but ignore concomitant Miller-El circumstantial evidence of intentional discrimination, Snyder may (counterintuitively) sap Miller-El II of its on-the-ground transformative potential. In other words, lawyers should not rely too much on the "more individualized focus" observed and applauded by the author because a narrow framing of a Batson challenge in the Snyder opinion's image (rather than a wider framing with a focus on the Miller-El factors) may fail in front of courts that view Snyder differently than does Bringewatt. A slightly different interpretation of the historical arc of the relevant cases and a critical reconsideration of Snyder's circumstances foreshadow the outcome in Haynes and reveal nuances that suggest problems with Bringewatt's theory.
Giannelli on Scientific Fraud
Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.
November 16, 2010
"A Case of Dubious Federalization Reaches the Supreme Court"
Kent Scheidegger at Crime & Consequences weighs in on one of the Court's cert grants from Monday:
The drug crimes and bank robbery that Fowler committed and conspired to commit prior to the killing are offenses under both state and federal law, so Officer Horner's report might or might not have been forwarded to federal authorities. It is most unlikely that Fowler was pondering issues of federalism when he shot Officer Horner. The evidence makes clear that he did commit the killing to prevent a report of his crimes and that it was possible (whether he knew it or not) that the report would go to federal authorities. Is that sufficient evidence to support a verdict of guilt in this case? . . .
I do not know the answer to the legal question. As a matter of policy, I do not see any justification for charging this as a federal case.
"Indefinite Detention for KSM"
Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.
The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.
"Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities"
This press release is on the website of the Death Penalty Information Center:
(Washington, D.C.) The Death Penalty Information Center today released the results of one of the most comprehensive studies ever conducted of Americans’ views on the death penalty. A national poll of 1,500 registered voters conducted by Lake Research Partners shows growing support for alternatives to the death penalty compared with previous polls. A clear majority of voters (61%) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).
In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62%) said either it would make no difference (38%) or they would be more likely to vote for such a representative (24%).
Sanchirico on Detection Avoidance and Enforcement Theory
Chris William Sanchirico (University of Pennsylvania Law School) has posted Detection Avoidance and Enforcement Theory: Survey and Assessment on SSRN. Here is the abstract:
The conventional economic model of enforcement focuses on the cost and effect of the state’s efforts to detect violations. This survey considers attempts to add to this framework the cost and effect of violators’ efforts to avoid detection. The survey describes how the conventional model must be altered to accommodate detection avoidance, and how results derived within the conventional framework are accordingly effected. The survey also considers policies directed at detection avoidance itself. It describes how the recursive nature of detection avoidance effects the efficacy of sanctioning detection avoidance. It also considers alternative, "technological" approaches.
November 15, 2010
Today's crim law/procedure cert grants
- Tolentino v. New York: whether an individual’s motor vehicle records cannot be used as evidence, if the police had consulted those records only after making an illegal stop of the individual’s vehicle.
- Fowler v. United States: whether there must be proof that the victim actually intended to report the crime to a federal officer to get a conviction for murdering a person to prevent that individual from reporting a federal crime to a federal law enforcement officer or judge.
Opinion in firearm enhancement case
Petitioners Abbott and Gould, defendants in unrelated prosecutions, were charged with drug and firearm offenses, including violation of18 U. S. C. §924(c), which prohibits using, carrying, or possessing a deadly weapon in connection with "any crime of violence or drug trafficking crime," §924(c)(1). The minimum prison term for a §924(c) offense is five years, §924(c)(1)(A)(i), in addition to "any other term of imprisonment imposed on the [offender]," §924(c)(1)(D)(ii). Abbott was convicted on the §924(c) count, on two predicate drug-trafficking counts, and of being a felon in possession of a firearm. He received a 15-year mandatory minimum sentence for his felon-in-possession conviction and an additional five years for his §924(c) violation. Gould’s predicate drug-trafficking crime carried a ten-year mandatory minimum sentence; he received an additional five years for his §924(c) violation. On appeal, Abbott and Gould challenged their §924(c) sentences, resting their objections on the "except" clause prefacing §924(c)(1)(A). That clause provides for imposition of a minimum five year term as a consecutive sentence "[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law." Abbott urged that the "except" clause was triggered by his 15-year felon-in-possession sentence; Gould said the same of the ten years commanded by his predicate trafficking crime. The Third Circuit affirmed Abbott’s sentence, concluding that the "except" clause "refers only to other minimum sentences that maybe imposed" for §924(c) violations. Gould fared no better before the Fifth Circuit.
A defendant is subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum. Pp. 5–18.
(a) Section 924(c) was enacted as part of the Gun Control Act of 1968, but the "except" clause was not added until 1998. Under the pre-1998 text, it is undisputed, separate counts of conviction did not preempt §924(c) sentences, and Abbott and Gould would have been correctly sentenced under §924(c). The question here is whether Congress’ 1998 reformulation of §924(c) rendered their sentences excessive. The 1998 alteration responded primarily to Bailey v. United States, 516 U. S. 137, which held that §924(c)(1)’s ban on "use" of a firearm did not reach "mere possession" of a weapon, id., at 144. In addition to bringing possession within the statute’s compass, Congress increased the severity of §924(c) sentences by changing "once mandatory sentences into mandatory minimum sentences," United States v. O’Brien, 560 U. S. ___, ___, and by elevating the sentences for brandishing and discharging a firearm and for repeat offenses. Congress also restructured the provision, "divid[ing] what was once a lengthy principal sentence into separate subparagraphs," id., at ___, and it added the "except" clause at issue. Pp. 5–8.
(b) The leading portion of the "except" clause now prefacing §924(c)(1)(A) refers to a "greater minimum sentence . . . otherwise provided by [§924(c) itself]"; the second segment of the clause refers to a greater minimum provided outside §924(c) "by any other provision of law." To determine whether a greater minimum sentence is "otherwise provided . . . by any other provision of law," the key question is: otherwise provided for what? Most courts have answered: for the conduct §924(c) proscribes, i.e., possessing a firearm in connection with a predicate crime.
Abbott and Gould disagree. Gould would apply the "except" clause whenever any count of conviction at sentencing requires a greater minimum sentence. Abbott argues that the minimum sentence "otherwise provided" must be one imposed for the criminal transaction that triggered §924(c) or, in the alternative, for a firearm offense involving the same firearm that triggered §924(c). These three interpretations share a common, but implausible, premise: that Congress in 1998 adopted a less aggressive mode of applying §924(c), one that significantly reduced the severity of the provision’s impact on defendants. The pre-1998 version of §924(c) prescribed a discrete sentence to be imposed on top of the sentence received for the predicate crime or any separate firearm conviction. It is unlikely that Congress meant a prefatory clause, added in a bill dubbed "An Act [t]o throttle criminal use of guns," to effect a departure so great from §924(c)’s original insistence that sentencing judges impose additional punishment for §924(c) violations. Abbott’s and Gould’s readings would undercut that same bill’s primary objective: to expand §924(c)’s coverage to reach firearm possession. Their readings would also result in sentencing anomalies Congress surely did not intend. Section 924(c), asthey construe it, would often impose no penalty at all for the conduct that provision makes independently criminal. Stranger still, the worst offenders would often secure shorter sentences than less grave offenders, because the highest sentences on other counts of conviction would be most likely to preempt §924(c) sentences. Abbott and Gould respond that sentencing judges may take account of any anomalies and order appropriate adjustments. While a judge exercising discretion under 18 U. S. C. §3553(a) would not be required to sentence a more culpable defendant to a lesser term, this Court doubts that Congress had such a cure in mind in 1998, seven years before United States v. Booker, 543 U. S. 220, held that district courts have discretion to depart from the Sentencing Guidelines based on §3553(a). Abbott and Gould alternatively contend that Congress could have anticipated that the then-mandatory Guidelines would resolve disparities by prescribing a firearm enhancement to the predicate sentence. But Congress expressly rejected an analogous scheme in 1984, when it amended §924(c) to impose a penalty even when the predicate crime itself prescribed a firearm enhancement. Between 1984 and 1998, Congress expanded the reach or increased the severity of §924(c) four times, never suggesting that a Guidelines firearm enhancement might suffice to accomplish §924(c)’s objective. Nor is there any indication that Congress was contemplating the Guidelines’ relationship to §924(c) when it added the "except" clause. Pp. 8–14.
(c) The Government’s reading—that the "except" clause is triggered only when another provision commands a longer term for conduct violating §924(c)—makes far more sense. It gives effect to statutory language commanding that all §924(c) offenders shall receive additional punishment for their violation of that provision, a command reiterated three times: First, the statute states that the §924(c)(1) punishment "shall" be imposed "in addition to" the penalty for the predicate offense, §924(c)(1)(A); second, §924(c) demands a discrete punishment even if the predicate crime itself "provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device," ibid.; third, §924(c)(1)(D)(ii) rules out the possibility that a §924(c) sentence might "run concurrently with any other term of imprisonment." Interpreting the "except" clause to train on conduct offending §924(c) also makes sense as a matter of syntax. The clause is a proviso, most naturally read to refer to the conduct §924(c) proscribes. See United States v. Morrow, 266 U. S. 531, 534– 535. There is strong contextual support for the view that the "except" clause was intended simply to clarify §924(c). At the same time Congress added the clause, it made the rest of §924(c) more complex, dividing its existing sentencing prescriptions into four paragraphs, and adding new penalties for brandishing and discharging a firearm. Congress thought the restructuring might confuse sentencing judges: It added the "except" clause’s initial part, which covers greater minimums provided "by this subsection," to instruct judges not to stack ten years for discharging a gun on top of seven for brandishing the same weapon. In referencing greater minimums provided by "any other provision of law," the second portion of the clause simply furnishes the same no-stacking instruction for cases in which §924(c) and a different statute both punish conduct offending §924(c). Congress likely anticipated such cases when framing the "except" clause,for the bill that reformulated §924(c)’s text also amended 18 U. S. C. §3559(c) to command a life sentence for certain repeat felons convicted of "firearms possession (as described in §924(c))." This interpretation does not render the "except" clause’s second part effectively meaningless. Though §3559(c) is the only existing statute, outside of §924(c) itself, that the Government places within the "except" clause, the "any other provision of law" portion installs a safety valve for additional sentences that Congress may codify outside §924(c) in the future. Neither United States v. Gonzales, 520 U. S. 1, nor Republic of Iraq v. Beaty, 556 U. S. ___, warrants a different conclusion. Pp. 14–18.
No. 09–479, 574 F. 3d 203; No. 09–7073, 329 Fed. Appx. 569, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the cases.
November 14, 2010
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