Sunday, October 7, 2018
Like many of you who were concerned about the confirmation and hasty swearing in of our newest Supreme Court Justice, I woke up this morning tempted to despair. As I caught up with the public statements of McConnell, Collins, and others, however, I realized that there’s no need to fear for the independence of the judiciary—especially as it relates to criminal justice reform and mass incarceration. Indeed, those of us who spend our days in prisons, jails, courtrooms, and classrooms—worried about the school to prison pipeline; implicit (and explicit) racial bias; institutionalization; and whether our indigent clients can ever get a fair shake in this country—now know for certain that we have new champions in our corner, new converts to our cause: Republican Senators!
Mitch McConnell, who for years has played a leadership role in the Senate, supporting, for example, the war on drugs, disparities between sentencing for crack cocaine and powder cocaine convictions, the federal death penalty, and limitation of federal habeas relief, has now proclaimed himself the Standard Bearer for the Presumption of Innocence! Mitch, welcome to the team! I would never have guessed that this was your pet issue! Criminal defense attorneys don’t judge, however; it’s never too late to start spending time with people of color just hoping they can get a jury of their peers to see them as human beings! As they say on The Price is Right (not a reference to your donor base)… Come On Down!
And Senator Susan Collins, dang girl! I’m totally borrowing from your statement in my next appeal challenging the sufficiency of the evidence of a criminal charge! This is good stuff:
...we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy...
I literally couldn’t have said it better myself. I know it must have taken a good deal of principle to risk alienating your base, which—let’s be honest—has supported you more for your votes supporting, say, withholding federal funding from sanctuary cities and authorizing (and extending) the Patriot Act. But you did it!! You planted your feet and stood up for the little guy facing the awesome power of the federal government arrayed against him. Well, not quite—but close enough.
So this is just an educated guess, but I suspect our new Presumption of Innocence Champions are going to start with national bail reform. I mean, that’s kind of low-hanging fruit, so it only makes sense. Divorcing considerations of wealth from considerations of whether a (presumed innocent) defendant will show up for court is a no-brainer! First, it supports the new Republican cause celebre (sweet! political points scored!). Second, it saves money (which is Republicans’ second favorite thing!) related to the expense of housing presumed-innocent defendants as they await trial—some for as many as several years. Third, it keeps families together until there has been a definitive adjudication of guilt. That only makes sense for Senators Collins and McConnell. I can’t wait to stand with them on this!
The next steps in criminal justice reform are anyone’s guess, really, and the sky’s the limit! There are so many many many many opportunities in America to support the ideal of the presumption of innocence and protect those facing charges when “fairness is most in jeopardy,” according to Senator Collins. All I know is, I want in! I mean, I’ve been waiting my whole career for someone to listen to the voices crying out in the wilderness for true justice for those facing criminal accusations. Oh me of little faith.
Saturday, March 31, 2018
Our always amazing West Virginia College of Law colleague, Valena Beety, Professor of Law and Director of the West Virginia Innocence Project, is featured on the March 16, 2018 Undisclosed podcast, State v. Ronnie Long – Addendum 1 – Projecting Innocence. Professor Beety is interviewed by Colin Miller, Professor of Law at the University of South Carolina College of Law and noted expert in the fields of evidence, criminal law, and criminal procedure. Professor Beety discusses her evolution from an Assistant United States Attorney to an innocence advocate, then addresses the eyewitness identification that caused Ronnie Long to spend forty years in prison. She identifies multiple factors that render the eyewitness identification unreliable in Mr. Long's case, while also acknowledging how research has reformed police protocols on interviewing eyewitnesses today. Professor Beety wraps up the interview by sharing her experience litigating habeas corpus cases in which the admission of faulty bite mark and shaken baby syndrome expert evidence led to wrongful convictions.
Tuesday, May 31, 2016
Over recent semesters, the Ventura County Public Defender’s Office and Pepperdine University School of Law have been developing the Veterans Law Practicum. In the Practicum, upper-level law students from Pepperdine work with the Public Defender to represent clients in Veterans Treatment Court. Vet Court is part of the Collaborative Court Program of the Ventura County Superior Court. Pepperdine law students work in a rich, immersive experience alongside expert attorneys to improve and expand restorative justice for veterans.
I have rarely seen a field placement as committed, organized and expert in the supervision of law students while ensuring that their work is effective and useful for clients.
Chief Deputy Rod Kodman, other attorneys at the Public Defender’s Office, and Pepperdine law students have prepared the attached guide for Public Defender Law Clerks in Veterans Court and Veterans Sentencing Programs. This is a detailed kit with standard operating procedures, forms and guidelines for students in the practicum. The Ventura Public Defender has been generous to share this material with defenders throughout California, and we are making it available nationally through several communities committed to veterans’ services.
From the Introduction:
This guide is designed to assist other jurisdictions in making optimum use of Public Defender law clerks as part of programs that give effect to veterans sentencing statutes, including Veterans Courts. The goal of such programs is to establish a secure pathway for veterans to restorative, alternative sentencing, which greatly increases access to justice for vulnerable veterans. The Ventura County Veterans Court is a collaborative effort, but other jurisdictions can implement the practices outlined here as part of a more adversarial process. Also, this guide refers throughout to the activities of “law clerks.” Other jurisdictions may wish to assign some of these roles to social workers, paralegals, sentencing mitigation specialists, or other professionals. In doing so, they should be careful to follow all applicable rules regarding the unauthorized practice of law.
The guide informs students’ work at arraignment, in the defenders’ office, at the Vet Court team meeting, before and in court, then in the delivery of legal or other benefits to clients.
We hope these materials can be helpful, and we welcome questions, suggestions and ideas to make them better.
Monday, April 27, 2015
We have just received a call for help from our fellow clinicians in Baltimore.
"Lawyers and law students are needed for jail support and legal observing for demonstrations in the wake of the death of Freddie Gray in Baltimore. We are building an infrastructure to support community organizations in Baltimore who are exercising their civil and human rights."
There is a immediate need for attorneys licensed in Maryland with criminal defense and civil rights experience.
If you would like more information, please see the following website: http://www.fergusonlegaldefense.com/baltimore
Wednesday, April 23, 2014
This morning the U.S. Supreme Court issued its decision in Paroline v. U.S. (http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf). The case involved the question of how to determine restitution for victims of child pornography. Although the majority opinion, written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, agrees with the victim and the government that restitution is mandatory, it held that courts should determine on an individualized basis each defendant’s unique role in the causation of the victim’s losses and then be held liable only for that limited amount.
This interpretation renders the mandatory restitution statute (18 U.S.C. §2252) untenable. Child pornography victims are routinely harmed by thousands of perpetrators many of whom are never identified, let alone prosecuted. It places a significant burden on courts, the government, and victims to try to calculate the relative harms caused by each individual perpetrator. Moreover, perpetrators are routinely found to possess or distribute child sex abuse images involving numerous victims. Thus, courts, the government, and victims would have to make this complex determination for each individual victim. The process as described would be highly inefficient, ineffective, and will lead to victims reliving their sexual abuse trauma indefinitely through the court system.
Thus, a legislative solution must be generated. According to the dissent, which was drafted by Chief Justice Roberts and joined by Justices Scalia and Thomas, “Congress set up a restitution system sure to fail in cases like this one.” Congress simply imported a generic restitution statute “without accounting for the diffuse harm suffered by victims of child pornography.” According to the dissent, the mandatory restitution statute is untenable and Congress should be given the opportunity to fix it.
Justice Sotomayor also dissented, but on entirely different grounds. She, essentially, agrees with the victim in this case, “Amy,” that each defendant should be held liable for the full amount of each victim’s losses. She, too, invites Congress to recodify the mandatory restitution statute to make clear that its command to award full restitution to victims of child pornography. Congress should accept the invitation.
Here is Amy’s response to the decision:
“I am surprised and confused by the Court’s decision today. I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution “someday,” I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”
Willamette’s Child and Family Advocacy Clinic originally filed an amicus brief on behalf of the Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children in this case (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-8561_resp_amcu_dnrthbsvc.authcheckdam.pdf) and I previously published a guest opinion on Paroline v. U.S. with Jurist (http://jurist.org/forum/2014/02/warren-binford-paroline-supreme.php).