CrimProf Blog

Vollaard on Selective Incapacitation

Ben Vollaard (TILEC, Tilburg University) has posted Preventing Crime Through Selective Incapacitation on SSRN. Here is the abstract:

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

University of Pennsylvania Criminal Law Research Group on Offense Grading in New Jersey

Paul H. Robinson (University of Pennsylvania Law School) and several students from the University of Pennsylvania Law School (Rebecca Levenson , Nicholas Feltham , Andrew Sperl , Kristen-Elise Brooks , Agatha Koprowski , Jessica Peake , Benjamin Probber and Brian Trainor) have posted Report on Offense Grading in New Jersey on SSRN. Here is the abstract:

The University of Pennsylvania Criminal Law Research Group was commissioned to do a study of offense grading in New Jersey. After an examination of New Jersey criminal law and a survey of New Jersey residents, the CLRG issued this Final Report. (For the report of a similar project for Pennsylvania, see Report on Offense Grading in Pennsylvania, http://ssrn.com/abstract=1527149, and for an article about the grading project, see The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading, http://ssrn.com/abstract=1539083, Journal of Criminal Law and Criminology (forthcoming 2011).)

The New Jersey study found serious conflicts between the relative grading judgments of New Jersey residents and those contained in existing New Jersey criminal law, as well as instances where mandatory minimum sentences often require sentences that exceed the maximum appropriate punishment, inconsistencies among the grading of similar offenses, overly broad offenses that impose similar grades on conduct of importantly different seriousness, and a flawed grading structure that provides too few grading categories, thereby assuring pervasive problems in failing to distinguish conduct of importantly different seriousness.

These systemic failures risk undermining the criminal justice system's moral credibility with the community, improperly delegate the value judgments inherent in grading decisions to individual sentencing judges ad hoc, fail to give citizens notice of the relative importance of conflicting duties, and invite application of different sentencing rules to similarly situated offenders. The Report examines how these grading problems came about, how they might be fixed, and how such grading irrationalities might be avoided in the future.

MTV's "Skins" and Child Pornography Laws (Kolber)

Yesterday, the New York Times ran a story about a popular new show on MTV called "Skins."  Apparently, the show's producers "are particularly concerned about the third episode of the series, which is to be broadcast Jan. 31. In an early version, a naked 17-year-old actor is shown from behind as he runs down a street."  They are concerned that the episode may violate child pornography laws:

It is unclear when MTV first realized that the show may be vulnerable to child pornography charges. On Tuesday, a flurry of meetings took place at the network’s headquarters in New York, according to an executive who attended some of the meetings and spoke only on the condition of anonymity. In one of the meetings, the executives wondered aloud who could possibly face criminal prosecution and jail time if the episodes were broadcast without changes.

One imagines that these meetings are especially uncomfortable:  If they are worried about criminal prosecution for broadcasting the episode, then perhaps they also have to worry about the knowing possession of the media containing the episode. 

-AJK

Opinion reversing ineffectiveness determination where counsel did not review blood evidence in planning strategy

The case is Harrington v. Richter. Here is the syllabus:

In 1994, deputies called to drug dealer Johnson’s California home found Johnson wounded and Klein fatally wounded. Johnson claimed that he was shot in his bedroom by respondent Richter’s codefendant, Branscombe; that he found Klein on the living room couch; and that his gun safe, a pistol, and cash were missing. His account was corroborated by evidence at the scene, including, relevant here, spent shell casings, blood spatters, and blood pooled in the bedroom doorway. Investigators took a blood sample from a wall near the bedroom door, but not from the blood pool. A search of Richter’s home turned up the safe and ammunition matching evidence at the scene. After his arrest on murder and other charges, Richter initially denied his involvement, but later admitted disposing of Johnson’s and Branscombe’s guns. The prosecution initially built its case on Johnson’s testimony and the circumstantial evidence, but it adjusted its approach after Richter’s counsel, in his opening statement, outlined the theory that Branscombe shot Johnson in self-defense and that Klein was killed in the crossfire in the bedroom doorway, and stressed the lack of forensic support for the prosecution’s case.

The prosecution then decided to call an expert in blood pattern evidence, who testified that it was unlikely that Klein had been shot outside the living room and then moved to the couch, and a serologist, who testified that the blood sample taken near the blood pool could be Johnson’s but not Klein’s. Under cross-examination, she conceded that she had not tested the sample for cross-contamination and that a degraded sample would make it difficult to tell if it had blood of Klein’s type. Defense counsel called Richter to tell his conflicting version of events and called other witnesses to corroborate Richter’s version. Richter was convicted and sentenced to life without parole. He later sought habeas relief from the California Supreme Court, asserting, inter alia, that his counsel provided ineffective assistance, see Strickland v. Washington, 466 U. S. 668, when he failed to present expert testimony on blood evidence, because it could have disclosed the blood pool’s source and bolstered Richter’s theory. He also offered affidavits from forensics experts to support his claim. The court denied the petition in a one-sentence summary order. Subsequently, he reasserted his state claims in a federal habeas petition. The District Court denied his petition. A Ninth Circuit panel affirmed, but the en banc court reversed. Initially it questioned whether 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits theavailability of federal habeas relief for claims previously "adjudicated on the merits" in state court—applied to Richter’s petition, since the State Supreme Court issued only a summary denial. But it found the state-court decision unreasonable anyway. In its view, trial counsel was deficient in failing to consult blood evidence experts in planning a trial strategy and in preparing to rebut expert evidence the prosecution might—and later did—offer.

Held:

1. Section 2254(d) applies to Richter’s petition, even though the state court’s order was unaccompanied by an opinion explaining the court’s reasoning. Pp. 7–10.

(a) By its terms, §2254(d) bars relitigation of a claim "adjudicated on the merits" in state court unless, among other exceptions, the earlier state-court "decision" involved "an unreasonable application" of "clearly established Federal law, as determined by" this Court, §2254(d)(1). Nothing in its text—which refers only to a "decision" resulting "from an adjudication"—requires a statement of reasons. Where the state-court decision has no explanation, the habeas petitioner must still show there was no reasonable basis for the state court to deny relief. There is no merit to the assertion that applying §2254(d) when state courts issue summary rulings will encourage those courts to withhold explanations. The issuance of summary dispositions can enable state judiciaries to concentrate resources where most needed. Pp. 7–9.

(b) Nor is there merit to Richter’s argument that §2254(d) does not apply because the California Supreme Court did not say it was adjudicating his claim "on the merits." When a state court has denied relief, adjudication on the merits can be presumed absent any contrary indication or state-law procedural principles. The presumption may be overcome by a more likely explanation for the state court’s decision, but Richter does not make that showing here. Pp. 9–10.

2. Richter was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 10–24.

(a) That court failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition. Its opinion shows an improper understanding of §2254(d)’s unreasonableness standard and operation inthe context of a Strickland claim. Asking whether the state court’s application of Strickland’s standard was unreasonable is different from asking whether defense counsel’s performance fell below that standard. Under AEDPA, a state court must be granted a deference and latitude that are not in operation in a case involving direct review under Strickland. A state court’s determination that a claim lacks merit precludes federal habeas relief so long as "fair-minded jurists could disagree" on the correctness of that decision. Yarborough v. Alvarado, 541 U. S. 652, 664. And the more general the rule being considered, "the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. The Ninth Circuit explicitly conducted a de novo review and found a Strickland violation; it then declared without further explanation that the state court’s contrary decision was unreasonable. But §2254(d) requires a habeas court to determine what arguments or theories supported, or could have supported, the state-court decision; and then to ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of this Court. AEDPA’s unreasonableness standard is not a test of the confidence of a federal habeas court in the conclusion it would reach as a de novo matter. Even a strong case for relief does not make the state court’s contrary conclusion unreasonable. Section 2254(d) is designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Pp. 10–14.

(b) The Ninth Circuit erred in concluding that Richter demonstrated an unreasonable application of Strickland by the state court.Pp. 14–23.

(1) Richter could have secured relief in state court only by showing both that his counsel provided deficient assistance and that prejudice resulted. To be deficient, counsel’s representation must have fallen "below an objective standard of reasonableness," Strickland, 466 U. S., at 688; and there is a "strong presumption" that counsel’s representation is within the "wide range" of reasonable professional assistance, id., at 689. The question is whether counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Prejudice requiresdemonstrating "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id., at 694. "Surmounting Strickland’s high bar is never ... easy." Padilla v. Kentucky, 559 U. S.___, ___. Strickland can function as a way to escape rules of waiver and forfeiture. The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom. Establishing that a state court’s application of Strickland was unreasonable under §2254(d) is even more difficult, since both standards are "highly deferential," 466 U. S,at 689, and since Strickland’s general standard has a substantial range of reasonable applications. The question under §2254(d) is not whether counsel’s actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard. Pp. 14–16.

(2) The Ninth Circuit erred in holding that because Richter’sattorney had not consulted forensic blood experts or introduced expert evidence, the State Supreme Court could not reasonably have concluded counsel provided adequate representation.

A state court could reasonably conclude that a competent attorney could elect a strategy that did not require using blood evidence experts. Rare are the situations in which the latitude counsel enjoys will be limited to any one technique or approach. There were any number of experts whose insight might have been useful to the defense. Counsel is entitled to balance limited resources in accord with effective trial tactics and strategies. In finding otherwise the Ninth Circuit failed to "reconstruct the circumstances of counsel’s challenged conduct" and "evaluate the conduct from counsel’s perspective at the time." Strickland, supra, at 689. Given the many factual differences between the prosecution and defense versions of events, it was far from evident at the time of trial that the blood source was central to Richter’s case. And relying on "the harsh light of hindsight" to cast doubt on a trial that took place over 15 years ago is precisely what Strickland and AEDPA seek to prevent. See Bell v. Cone, 535 U. S. 685, 702. Even had the value of expert testimony been apparent, it would be reasonable to conclude that a competent attorney might elect not to use it here, where counsel had reason to question the truth of his client’s account. Making blood evidence a central issue could also have led the prosecution to produce its own expert analysis, possibly destroying Richter’s case, or distracted the jury with esoteric questions of forensic science. Defense counsel’s opening statement may have inspired the prosecution to present forensic evidence, but that shows only that the defense strategy did not work out as well as hoped. In light of the record here there was no basis to rule that the state court’s determination was unreasonable.

The Court of Appeals erred in dismissing such concern as an inaccurate account of counsel’s actual thinking, since Strickland examined only the objective reasonableness of counsel’s actions. As to whether counsel was constitutionally deficient for not preparing expert testimony as a response to the prosecution’s, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for remote possibilities. Here, even if counsel was mistaken, the prosecution itself did not expect to present forensic testimony until the eve of trial. Thus, it is at least debatable whether counsel’s error was so fundamental as to call the trial’s fairness into doubt. Even if counsel should have foreseen the prosecution’s tactic, Richter would still need to show it was indisputable that Strickland required his attorney to rely on a rebuttal witness rather than on cross-examination to discredit the witnesses, but Strickland imposes no such requirement. And while it is possible an isolated error can constitute ineffective assistance if it is sufficiently egregious, it is difficult to establish ineffective assistance where counsel’s overall performance reflects active and capable advocacy. Pp. 16–22.

(3) The Ninth Circuit also erred in concluding that Richter had established prejudice under Strickland, which asks whether it is "reasonably likely" the verdict would have been different, 466 U. S.,at 696, not whether a court can be certain counsel’s performance had no effect on the outcome or that reasonable doubt might have been established had counsel acted differently. There must be a substantial likelihood of a different result. The State Supreme Court could have reasonably concluded that Richter’s prejudice evidence fell short of this standard. His expert serology evidence established only a theoretical possibility of Klein’s blood being in the blood pool; and at trial, defense counsel extracted a similar concession from the prosecution’s expert. It was also reasonable to find Richter had not established prejudice given that he offered no evidence challenging other conclusions of the prosecution’s experts, e.g., that the blood sample matched Johnson’s blood type. There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter’s guilt, including, e.g., the items found at his home. Pp. 22–23.

578 F. 3d 944, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

Opinion reversing habeas on ineffective assistance grounds

The case is Premo v. Moore. Here is the syllabus:

Respondent Moore and two accomplices attacked and bloodied Kenneth Rogers, tied him up, and threw him in the trunk of a car before driving into the Oregon countryside, where Moore fatally shot him. Afterwards, Moore and one accomplice told Moore’s brother and the accomplice’s girlfriend that they had intended to scare Rogers, but that Moore had accidentally shot him. Moore and the accomplice repeated this account to the police. On the advice of counsel, Moore agreed to plead no contest to felony murder in exchange for the minimum sentence for that offense. He later sought postconviction relief in state court, claiming that he had been denied effective assistance of counsel. He complained that his lawyer had not moved to suppress his confession to police in advance of the lawyer’s advice that Moore considered before accepting the plea offer. The court concluded the suppression motion would have been fruitless in light of Moore’s other admissible confession to two witnesses. Counsel gave that as his reason for not making the motion. He added that he had advised Moore that, because of the abuse Rogers suffered before the shooting, Moore could be charged with aggravated murder. That crime was punishable by death or life in prison without parole. These facts led the state court to conclude Moore had not established ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668.

Moore sought federal habeas relief, renewing his ineffectiveassistance claim. The District Court denied the petition, but the Ninth Circuit reversed, holding that the state court’s conclusion was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279.

Held: Moore was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 4–17.

(a) Under 28 U. S. C. §2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state-court decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by" this Court. The relevant federal law is the standard for ineffective assistance of counsel under Strickland, which requires a showing of "both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U. S. ___, ___. Pp. 4–6.

(b) The state-court decision was not an unreasonable application of either part of the Strickland rule. Pp. 6–16.

(1) The state court would not have been unreasonable to accept as a justification for counsel’s action that suppression would have been futile in light of Moore’s other admissible confession to two witnesses. This explanation confirms that counsel’s representation was adequate under Strickland, so it is unnecessary to consider the reasonableness of his other justification—that a suppression motion would have failed. Plea bargains involve complex negotiations suffused with uncertainty, and defense counsel must make strategic choices in balancing opportunities—pleading to a lesser charge and obtaining a lesser sentence—and risks—that the plea bargain might come before the prosecution finds its case is getting weaker, not stronger. Failure to respect the latitude Strickland requires can create at least two problems. First, the potential for distortions and imbalance that can inhere in a hindsight perspective may become all too real; and habeas courts must be mindful of their limited role, to assess deficiency in light of information then available to counsel. Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect because prosecutors must have assurances that a plea will not be undone in court years later. In applying and defining the Strickland standard—reasonable competence in representing the accused—substantial deference must be accorded to counsel’s judgment. The absence of a developed and extensive record and well-defined prosecution or defense case creates a particular risk at the early plea stage. Here, Moore’s prospects at trial were anything but certain. Counsel knew that the two witnesses presented a serious strategic concern and that delaying the plea for further proceedings might allow the State to uncover additional incriminating evidence in support of a capital prosecution. Under these circumstances, counsel made a reasonable choice. At the very least, the state court would not have been unreasonable to so conclude. The Court of Appeals relied further on Fulminante, but a state-court adjudication of counsel’s performance under the Sixth Amendment cannot be "contrary to" Fulminante, for Fulminante—which involved the admission of an involuntary confession in violation of the Fifth Amendment—says nothing about Strickland’s effectiveness standard. Pp. 6–12.

(2) The state court also reasonably could have concluded that Moore was not prejudiced by counsel’s actions. To prevail in state court, he had to demonstrate "a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U. S. 52, 59. Deference to the state court’s prejudice determination is significant, given the uncertainty inherent in plea negotiations. That court reasonably could have determined that Moore would have accepted the pleaagreement even if his second confession had been ruled inadmissible. The State’s case was already formidable with two witnesses to an admissible confession, and it could have become stronger had the investigation continued. Moore also faced the possibility of grave punishments. Counsel’s bargain for the minimum sentence for the crime of conviction was thus favorable, and forgoing a challenge to the confession may have been essential to securing that agreement. Again, the state court’s finding could not be contrary to Fulminante, which does not speak to Strickland’s prejudice standard or contemplate prejudice in the plea bargain context. To the extent Fulminante’s harmless-error analysis sheds any light on this case, it suggests that the state court’s prejudice determination was reasonable. Pp. 12–16.

574 F. 3d 1092, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

"F.B.I. and Police Arrest More Than 100 in Mob Sweep"

This interesting piece is in the New York Times. In part:

The arrests, including one expected in Italy, were based on 16 unrelated indictments handed up in federal courts in four jurisdictions. Taken together, they amounted to the largest such sweep of organized crime figures conducted in recent history by federal authorities.

. . .

By taking out the leadership of the Colombos and charging large numbers of reputed crime figures from the other families, the F.B.I. and federal prosecutors hoped the case would have a significant impact on organized crime. But one official noted that senior prosecutors and F.B.I. officials have declared victory or sought to write the mob’s epitaph many times in the past. Yet many tenacious and formidable organized crime families have endured, albeit weaker and with less influence, using violence and the threat of violence to amass wealth and influence.

. . .

A dozen of the indictments naming more than 80 defendants were handed up in Brooklyn. They charged members of all five of New York’s crime families — Genovese, Gambino, Colombo, Luchese and Bonanno — along with members of the New Jersey-based DeCavalcante family.

Taslitz on Police Cognition

Andrew E. Taslitz (Howard University - School of Law) has posted Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right on SSRN. Here is the abstract:

Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.

Transcript of oral argument on FOIA, criminal investigations, and corporations

The case is FCC v. AT&T Inc.

Featured download: Markel, Flanders & Gray on Hedonic Adaption and Criminal Theory

Dan Markel (pictured), Chad Flanders and David C. Gray (Florida State University College of Law , Saint Louis University - School of Law and University of Maryland - School of Law) have posted this intriguing contribution to the recent controversy over the relevance of hedonic adaption to punishment theory,Beyond Experience: Getting Retributive Justice Right (California Law Review, Vol. 99, No. 2, April 2010). Professor Markel has a brief post at PrawfsBlawg that situates the new article in the recent debate. Here is the abstract:

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment.

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone.

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain not only principally unpersuaded as to the conceptual and normative responses, but we use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment.

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

"Police Officers Committing Perjury in Testimony About Consent Searches?"

Orin Kerr has this post at The Volokh Conspiracy discussing this "fascinating" recent Florida appellate court opinion raising concerns about the adequacy of judicial assessment of police testimony. From the opinion:

The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Guggenheim on the Right to Counsel

Martin Guggenheim (New York University School of Law) has posted The People’s Right: Reimagining the Right to Counsel on SSRN. Here is the abstract:

This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.

In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. In the overwhelming majority of cases prosecuted in state court, defendants are not provided with an attorney who has the capacity to undertake any kind of meaningful investigation into the facts and circumstances of their cases.

Courts need to rely on a vital ally when performing their oversight responsibilities. They depend (we depend) on a robust indigent defense system which routinely investigates the underlying facts and circumstances of individual cases as the only truly meaningful check on executive power.

In our adversary justice system, judges are constrained from performing more than a very modest investigation into cases. Instead, if investigations are to take place, they will be done by defense counsel or no one outside of the executive branch. Challenges to inadequate indigent defense systems have invariably been brought as Sixth Amendment claims. For the most part, these challenges have failed. Challenges brought on separation of powers claims, however, would have to be considered in entirely new terms. Simply stated, it would assert that those responsible for the failure to provide sufficient funds for an adequate defender system (usually the legislative but sometimes the executive branch as well) have improperly intruded into core judicial branch responsibilities, denying courts the opportunity to perform their essential functions. This shift from an individual’s to society’s loss would change the focus of the inquiry in dramatic ways and would provide courts with the legitimacy to do something that, paradoxically, they are currently denied because of an opposite understanding of the court’s proper place in our system of separation of powers. Specifically, current wisdom has it that courts act beyond their proper authority when they order legislatures to spend more money than they are willing on indigent defense. Because choices concerning the expenditure of public money are properly allocated to the legislative branch, the reasoning goes, such judicial orders would constitute an improper intrusion by the courts into the legislature’s prerogatives.

This Article advances the obverse claim. Separation of powers, which has long been a shield preventing courts from overseeing indigent defense systems, is now a sword by which courts are authorized to decide for themselves whether indigent defense systems are adequate to allow courts to do their duty. If courts find they are not, they would be constitutionally empowered to fix the problem by insisting that more money is made available for indigent defense.

An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general enforcing the rights of his or her client, the collective defense system should be seen as the investigative arm of the judiciary providing meaningful oversight on executive power. Without a robust indigent defense system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis.

Yin on Independent Appellate Review in False Statement Cases

Tung Yin (Lewis & Clark Law School) has posted Independent Appellate Review of Knowledge of Falsity in Defamation and False Statements Cases (Berkeley Journal of Criminal Law, Vol. 15, pp. 330-392, 2011) on SSRN. Here is the abstract:

Although we are used to thinking that criminal defendants receive more procedural protections than civil defendants do, this notion turns out to be incorrect when it comes to appellate review of civil defamation verdicts versus criminal convictions for false statements, where the key issue is the defendant's knowledge of the falsity in question. The civil defendant gets the benefit of what the Supreme Court calls "independent appellate review" of the existence of actual malice in a defamation case, which is to say an aggressive standard exhibiting little to no deference toward the factfinder's determination. The criminal defendant, on the other hand, is saddled with a standard of review that is highly deferential toward the factfinder; the criminal defendant must show that no reasonable jury could have found that he knew the statement to be false. A person who is sued successfully for slander and convicted of making a false statement for the same utterance to a federal agent could therefore find himself in the odd situation of winning the appeal in the civil case and losing it in the criminal case, simply because in the former instance, the appellate court could more freely reject the jury's knowledge of falsity finding, whereas in the latter instance, the appellate court would be essentially bound to the jury's determination. In this Article, I ask whether the same duty of independent appellate review of the knowledge of falsity should apply in criminal cases that involve false statements. Answering that question requires an examination of the First Amendment principles underlying the actual malice rule and the independent appellate review doctrine to see if the same concerns arise in the criminal context. Ultimately, I conclude that in at least some instances, First Amendment values call for extending the independent appellate review doctrine to criminal cases.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	324	Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts Gray Proctor, Nancy J. King, Fourth Circuit Court of Appeals, Vanderbilt University - Law School, Date posted to database: November 11, 2010 [4th last week]
2	309	Vagueness and the Guidance of Action Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: October 31, 2010 [3rd last week]
3	204	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010 [6th last week]
4	178	The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case Hedi Viterbo, London School of Economics - Law Department, Date posted to database: December 8, 2010 [new to top ten]
5	169	The Substance-Procedure Relationship in Criminal Law Donald W. Dripps, University of San Diego - School of Law, Date posted to database: December 8, 2010 [new to top ten]
6	158	Retribution and the Experience of Punishment John Bronsteen, Christopher J. Buccafusco, Jonathan S. Masur, Loyola University Chicago School of Law, Chicago-Kent College of Law , University of Chicago - Law School, Date posted to database: October 18, 2010 [new to top ten]
7	158	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [new to top ten]
8	123	Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction Deborah W. Denno, Fordham University School of Law, Date posted to database: November 15, 2010 [new to top ten]
9	116	Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases Stanley A. Goldman, Loyola Marymount University - Loyola Law School Los Angeles, Date posted to database: November 26, 2010 [new to top ten]
10	113	The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure Susan A. Bandes, DePaul University - College of Law, Date posted to database: November 19, 2010 [new to top ten]