Clinical Law Prof Blog

PUBLICATION OPPORTUNITY - Feminist Judgments: Rewritten Criminal Law Opinions

Call for Authors

 

Feminist Judgments: Rewritten Criminal Law Opinions

 

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Criminal Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series have focused on different courts and different subjects. This call is for contributions to a volume of criminal law decisions rewritten from a feminist perspective.

Feminist Judgments: Rewritten Criminal Law Opinion editors Sarah Deer, Corey Rayburn Yung, and Bennett Capers seek prospective authors to rewrite criminal law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, though certain constraints (including a preference for avoiding cases that have already been or soon will be rewritten for other volumes in this series) may preclude their addition to the volume. We also seek authors to provide brief commentary on the original and rewritten cases.

Rewritten opinions may be reimagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made going forward (4,000-word maximum for the commentary). The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. We are “big tent” and welcome all types of feminism, from liberal feminism to abolitionist feminism. We certainly welcome an intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten criminal law cases should email the volume editors ([email protected], [email protected], and [email protected]) and put “Feminist Judgments: Rewritten Criminal Law Opinions” in the subject line. In the body of the email, please indicate whether you are interested in writing an opinion or providing a commentary, and specify one or more of the cases from the list below that you would like to rewrite or comment on. You are also free to suggest a case not listed.

Please note that the editors are committed to diversity in all of its forms, and committed to including a diverse group of authors in this volume. If you feel an aspect of your personal identity is important to your participation in this volume, please feel free to include that in your expression of interest.

Applications are due by June 1, 2020. The editors expect to notify accepted authors and commentators no later than July 1, 2020. First drafts of rewritten opinions will be due on October 1, 2020. First drafts of commentaries will be due on November 1, 2020.

List of cases:

1.     Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)

2.     Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)

3.     Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)

4.     U.S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)

5.     Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)

6.     Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)

7.     Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)

8.     McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)

9.     People v. Berry, 556 P.2d 777 (1976) (provocation)

10.  Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)

11.  People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)

12.  State v. Norman, 324 N.C. 253 (1989) (self-defense)

13.  State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)

14.  Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)

15.  McQuirter v. State, 36 Ala. 707 (1953) (rape/race)

16.  State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)

Nine Star Wars Quotes for Clinics Facing Tight Filing Deadlines....

1.    "I've got a bad feeling about this." -- Han Solo

It's a new semester. You have brand new cases and deadlines... and at least one of those deadlines is comin' in hot. You've got a sick feeling in your stomach. You can see dread in the students' faces. Your fresh take on the court's refusal to grant an extension or continuance? A bad feeling. But it can't stop there. 

2. “I need someone to show me my place in all this.” -- Rey

The role of the clinical law professor is twofold: to represent clinic clients in a zealous and professional way and to teach clinic students their "place in all this." Sometimes that means subdividing sections of a brief or a larger project; sometimes it's suggesting research terms and leading a brainstorming session. But it's also more than that: students look to their clinical law professors to help them make sense of their  lawyering experiences to assess their own path. Deadlines are important- but clinical students are more than research assistants or interns. Fundamentally, law clinics are lab courses in which students' work is also twofold: representing their clients and reflecting on their own professional development. 

3.  "Do or do not. There is no try." -- Yoda

Clinic litigation often doesn't have the luxury of extended pontification, and it certainly can't stop with "try." Behind every clinic case is a client relying on students' work product. There's no "A for effort" here, though grades and feedback also cannot be based on a court result. Clinical learning outcomes are the skills gained, the words written (and edited and rearranged and rewritten). We may all get writer's block or paralysis, but we can't stay there for long. 

4. "The time to fight is now." -- Jyn Erso

Clinic briefs filed in an adversarial system are our weapons in the battle for justice for our clients, and the fight is on. We can count on opposing counsel to make the case against our client's claims, and we have to meet each of them head on. Clinical faculty and our students are bound by rules of professional conduct, and I am a strong believer in the powers of civility toward opposing counsel. But within those bounds, we are zealous. It doesn't hurt us to own the mantle of a freedom fighter; at our best, that's what we are.

5. "Look, Your Worshipfulness, let's get one thing straight. I take orders from just one person: me."-- Han Solo

I've mostly included this as a tongue-in-cheek counter-example of the kind of coachability we need in clinic students. Our students are smart, intuitive, hardworking, solid writers. But they still have to listen. Only once or twice have I encountered a student who didn't love taking heavy edits on a brief, and with a deadline clock ticking, it wasted valuable time.

6. "Never tell me the odds"-- Han Solo

I run an appellate and habeas clinic. The odds are never in our favor. Why bog ourselves down with the reversal rate of the appellate court hearing the case? Irrelevant. Next issue.

7. "It's a Trap!!"-- Admiral Akbar

There comes a point in all justice work when we become too enamored with our own perspective. We don't want to become paralyzed by bad odds, but we also need a healthy perspective on the court's view of our client's case record and issues. What arguments will be persuasive? What will the State argue? Where are the weak spots, and what will shore those places up? Better to consider these weaknesses before the filing deadline instead of after.

8. "That's impossible-- even for a computer!"-- Rebel pilot

As someone who learned legal research in the stacks of the law library, I'm always amazed with the newfangled bells and whistles of our research resources. Ever have a program create a beautiful table of authorities? E-filed remotely when you used to have to make 9 hard copies with heavy covers, stapled down the side, all FedExed before 9 pm? A thing of beauty... plus, it saves hours in clinic work time.

9."Use the Force, [class]." -- Obi-Wan Kenobi 

In the last few days before a filing or other court deadline, accumulated stress takes its toll. Students have other courses to study for, clinical faculty have other teaching obligations. We've all put our lives on hold. But there's still final editing left to do. A brief isn't finished 'til it's filed... and sometimes we need that extra boost of adrenaline (and The Force) to make sure we create clinic work product we're proud of. We have to dig deep for motivation, and I generally find that in our clients' confidence in us and in what is at stake for them if we lose.

The New Champions of the Presumption of Innocence?

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.

Professor Valena Beety Featured as Eyewitness Identification Expert on the Undisclosed Podcast

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.  

Guide for Public Defender Law Clerks in Veterans Court and Veterans Sentencing Programs

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. 

Download Vet Law Practicum. Ventura PD. SOP final (5.31.16)

We hope these materials can be helpful, and we welcome questions, suggestions and ideas to make them better.

A Call for Help.

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

The website has information on: News & Updates, Training Materials and a place for Donations.  

 

 

 

 

 

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Freddie Gray: federal civil rights inquiry opened in police-van death in Baltimore

SCOTUS Decision Issued in Paroline v. U.S. Today

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.”

(http://www.childlaw.us/)

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).