CrimProf Blog

Criminal law & procedure teaching materials database -- it's live (and needs your help)

Some exciting news from Russell Gold, who's chairing AALS's Crim Pro Section:

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Hi Everyone,

I hope that summer is treating you well.  I'm excited to report that the digital teaching resources repository for criminal law and procedure courses is now live!  You can find it from the page of either the Criminal Procedure or Criminal Law sections or the link is here.  That said, you'll see that the content of the repository is still sparse.  Thanks very much to those of you who already contributed.  For those who haven't, I'll encourage you to contribute now.  I'd especially love to see more content for externships, clinics, and substantive criminal law courses other than 1L Criminal Law.

I encourage you to share:

• Syllabi
• Teaching notes
• Classroom slides
• Sample assignments, exams, or practice questions
• Classroom exercises
• Supplemental materials (podcasts, videos, articles, URLs for websites)

If you are willing to contribute, here's what you should do.  In the next two weeks:

1. Please reply individually to Russell ([email protected]) explaining which coursebook (if any) you choose for each of your criminal justice-related courses and why you choose that book.  We have a document for each course in the repository that explains why the amazing teachers in this group use the book they do.  We think this document will help other teachers, especially new teachers, decide which book and approach best suits their needs before diving more deeply into the repository.
2. Please post materials using this Dropbox file request: www.dropbox.com/request/u345Veuxh6ZdNEwymEZF.  Feel free to include any notes or context you believe would be helpful to those reviewing your materials.  Please include your name when you're submitting using the File Request.  Please upload your files in one or more folders rather than individually.  Please separate your materials for each criminal justice-related course that you teach.  (Uploading a big batch of materials with sub-folders works well and so will separate uploads with a folder of materials for each of your courses.)  Dropbox is just the temporary holding location, and only Executive Committee members will be able to see those submissions before they go live to the AALS repository.

If you have materials that you'd like to contribute but have any technical difficulties in so doing, please reach out to Russell individually ([email protected]).

Please remember that to make these materials accessible only to other faculty members access to this repository is limited to members of the Criminal Law and Criminal Procedure sections.  If you are mentoring someone who wants access to the materials, please encourage them to join one or both sections.

Warmest regards and many thanks,
Russell Gold, Justin Murray, Melissa Redmon, Ben Levin, Evelyn Malavé, Maybell Romero, and Valena Beety

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Russell M. Gold
Bainbridge-Mims Professor of Law
University of Alabama School of Law
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Reflecting on a Full Life with Big Fish

One of my goals for the Crimprof blog, as I suppose would already be clear from some of my posts (e.g., What Cobra Kai Teaches Profs), is not merely to (of course) be a forum for issues of substantive criminal law and criminal procedure, and (of course) a forum for the lawyering and education of such issues, but to more generally be a forum for thoughtful—and even merely playful—consideration of legal education, lawyering, and, well… life. Striving for mindfulness and joy, including through the study of world religions and philosophies, is not only important to me personally, but is becoming increasingly relevant in my scholarship (e.g., Why Mercy Cannot be Automated).

So, first, a quick shout-out to fellow Crimprof editor Melanie Reid, who put together and will be moderating a panel on Professional Identity Development Among Faculty at the upcoming SEALS annual conference in July. Here’s the description:

A lot of emphasis has been placed in law schools on the new ABA standards requiring law students to develop their professional identity. Students are asked to reflect on their values, intentions, and personal motivations. But what about our professional identity? What internal and external factors motivate us as faculty? The science of human flourishing has identified several key factors for success: continued learning, connection, resilience, finding purpose, and play. The discussants will share how they arrived at their own extrinsic and intrinsic motivators, how these can be used to contribute to the betterment of the legal system and our students (purpose), and how we can build community among faculty (connection).

I’m really looking forward to learning there.

Second, I will sometimes share a book or movie (or, as in this case, a book that is also a movie) that seems worthwhile to any of those aspects of human flourishing. The book/movie I have in mind today is Big Fish, a 1998 novel by Daniel Wallace then adapted into a 2003 film directed by Tim Burton. I highly recommend both, as they differently encapsulate the magic of imagination and storytelling, arts we may undervalue. Both remind us against, as so well expressed in the movie, the story told wrong:

“Will never told you?” asks Edward Bloom, “Ah, probably just as well. He would have told it wrong anyway. All the facts and none of the flavor.”

I fear we lawyers and law professors too often make that mistake. All facts… no flavor.

From the book, I’ll share just one terrific passage, with play of course being one of those components of flourishing (this is found in Part II, His Greatest Power):

There was this man—we’ll call him Roger—who had to go out of town on business, and so left his cat in the care of a neighbor. Now, the man loved his cat, loved his cat beyond all things, so much so that the very night of the day he left he called his neighbor to inquire into the general health and emotional well-being of this dear feline. And so he asked his neighbor, “How is my sweet little darling precious cat? Tell me, neighbor, please?”

And the neighbor said, “I’m sorry to have to tell you this, Roger. But your cat is dead. It was run over by a car. Killed instantly. Sorry.”

Roger was shocked! And not merely at the news of his cat’s demise—as if that weren’t enough!—but also at the way in which he was told about it.

So he said, “That’s not the way you tell somebody about something as horrible as this! When something like this happens you tell the person slowly, you ease them into it. You prepare them! For instance. When I called this evening you should have said, Your cat’s on the roof. Then the next time I call you would say, The cat’s still on the roof, he won’t come down and he’s looking pretty sick. Then the next time I call you might tell me the cat fell off the roof and that he’s now at the vet in intensive care. Then, the next time I call you tell me—your voice sort of quivery and shaky—that he died. Got it?”

“Got it,” said the neighbor. “Sorry.”

So three days later Roger called the neighbor again, because his neighbor was still watching the house and checking his mail, et cetera, and Roger wanted to know if anything important had happened. And the neighbor said, “Yes. As a matter of fact, yes. Something important has happened.”

“Well?” asked Roger.

“Well,” the neighbor said. “It’s about your father.”

“My father!” exclaimed Roger. “My father! What about my father?”

“Your father, said the neighbor, “is on the roof…”

 

Let’s Be Reasonable About Geofence Warrants (Part 3) – New Jersey v. Van Salter

I have previously posted against categorical prohibition of geofence warrants, and worked through the dizzying array of opinions in the Fourth Circuit’s Chatrie en banc.  Here, let’s consider the Superior Court of New Jersey Appellate Division’s May 20 split decision permitting a geofence warrant as supported by probable cause in State v. Van Salter, No. A-3963-23 (N.J. Super. Ct. App. Div. May 20, 2025).

So as not to bury the lede, the upshot is this: There is much to like in the majority opinion, as it correctly asserts that probable cause can be established by selective revelation, meaning “geofence warrants are not unconstitutional per se.”  Yet there is also blood drawn by the dissent, as the proffered suspicion is very minimal on these facts, relying upon a string of ‘hopes’ and ‘maybes.’  And this is because the case presents an instance of geofencing in investigation of a single crime, thereby limiting the screening power of selective revelation.  Thus, as I argued in 2016 (and before), the best way to approach the problem is for the decision-maker—ideally a legislature in the first-instance—to first decide how private are various durations of location information.  For example, duration at a single instant might be not private or minimally private, whereas duration for over twenty-four hours might be highly private.  That privacy determination in turn ought to trigger different access restrictions.  And that is where this case understandably goes astray: because the New Jersey legislature has not done that work, the state’s courts have been left to look for probable cause in order to permit a warrant, even when a lesser standard of suspicion is almost surely the more reasonable one.

The facts of Van Salter are these: On March 16, 2022, a male entered a gas station store at 8:59 pm; he was facially masked and seemed to be speaking on an unseen mobile phone, as witnessed both by the station attendant and by a customer.  After that customer witness left, the man assaulted the station attendant at gunpoint, not only stealing the money from the registers but then punching the attendant and throwing her to the ground.  A surveillance camera at the station captured the perpetrator entering the store at 8:59 pm and leaving at 9:13 pm, making for a most relevant period of fourteen minutes.  Police therefore obtained a geofence warrant directed to Google and covering the fourteen minute window, hoping the perpetrator was one of those persons who had opted in to that company’s location logging.  Google responded that there was only a single ‘hit,’ meaning Google had information on only a single phone recording location at that place within that time window.  So, police followed up with a second warrant requesting identifying information for that phone, which belonged to defendant Van Salter.  (There is a discrepancy in the case records, such that perhaps there were four hits rather than one, a discrepancy I will set aside here.)

Thus, there occurred a violent robbery in which there was reason to believe the perpetrator spoke on his cellular phone at the location of the crime, within a fourteen minute window.  Given the significant government need and the relatively minor privacy intrusion involved in a person’s location over a fifteen minute period, I’d permit police to obtain lists of everyone within the gas station during that time.  Now, the available location information from a particular provider will be more or less granular, which is again why legislative rules—which can categorically approach such complexity—are superior to court necessarily-ad-hoc considerations.  But, again, I would permit police access to such information.  Indeed, I tend to think this is the reasonable solution whether or not the perpetrator was observed using a phone; it is reasonable given the realities of the pervasiveness of mobile telephony, the magnitude of the privacy intrusion of location over a short duration, and the seriousness of the crime at issue.

And this is why the ABA Criminal Justice Standards for Law Enforcement Access to Third Party Records (for which I was Reporter) counsel the decision maker to first determine not the reasonableness of particular access, but instead how private is the type of information.  The Standards recognize four levels of privacy: large (highly private), medium (moderately private), small (minimally private), and not at all (not private).  And each privacy level then defaults to a given magnitude of legal protection: Highly private information, for example, defaults to being highly protected, which typically requires a probable cause warrant for access.  And moderately private information defaults to being moderately protected, where there is a menu of access options.  Etcetera.  The crux is that it is not reasonable—indeed, it’s perhaps absurd—to think there ought to be a single criterion of access restraint (probable cause) for the myriad types and amounts of information police might wish to access.  And the law ought to be reasonable… including, of course, because such is the federal constitutional command as a floor, but also because it is dimwitted to deny the State reasonable access necessary to solve dangerous crime.

So, let’s bring it back to Van Salter.  The reason the dissent makes good points is because it is quite strange to hinge law enforcement access upon the perpetrator having been heard seemingly talking on an unseen phone—so the State couldn’t learn who all was present without that happenstance, even were the crime a murder?!—and for law enforcement to request data from only a single service provider (Google) for whom only one-third of its then-customers opted in to the relevant location tracking.  In the words of the dissent, “The bridge between the suspect and Google is built on a series of assumptions: defendant had a Google account capable of recording his location to Google’s server; he had opted in to permit Google to record the estimates of his location; the user agreement between Google and defendant, which is not in the record, provides the location ‘data belongs to Google’ and authorized Google to ‘share the results of [a] search or even sell it’; his phone was a smartphone; his smartphone had GPS functionality; his smartphone had Google’s operating system or a downloaded Google application with enabled location-tracking services; he had that particular phone with him at the time of the robbery; and he was logged into his Google account on that smartphone at the time of the robbery.”  Surely police access to location information—however it ought to be regulated—ought not rest on anything like that list of ‘maybes.’

And is there probable cause—or even reasonable suspicion—for most geofence warrants?  As I stated the matter in 2016,

[H]ow could there be reasonable suspicion in the case of the … cell-tower dump?  Only, it would seem, if very few people were talking on their cell phones.  Think of it this way: if police were physically present after the commission of the crime, could they temporarily detain—and thereby constitutionally seize—everyone standing within the relevant cell-site sector?  If there are many people present, of course not.  In other words, reasonable suspicion requires a respectable hit to no-hit ratio.  It can be constitutionally permissible to temporarily detain—though not, I think, to arrest—two persons when only one can have committed the crime.  But, as that number of potential suspects increases, at some point—and rather quickly, I think—reasonable suspicion dissipates.

Thus, again, it is incumbent upon decision makers—ideally legislatures in the first instance—to decide how private is given information, and then upon reasonable access restraints, and those restraints may be probable cause, reasonable suspicion, or something else.  When several crimes occur with a similar modus operandi, selective revelation may alone provide probable cause—e.g., there is only a single phone present at three robberies.  But for other crimes there will not be that probable cause… but maybe there doesn’t need to be.  Perhaps probable cause ought not be required, depending upon the particular law enforcement ask.

For example, the following are two tables from my 2016 article showing how a jurisdiction applying the ABA Standards might approach access to location information like that in Van Salter—the Standards not providing a legal straightjacket to any circumstance, but rather providing a framework or algorithm through which a decision maker can arrive at consistent, reasonable restraints:

Unfortunately, legislatures haven’t done their work in the past decade, so courts are still having to confront these not-at-all-new issues as matters of first impression with only two tools at their disposal: the federal and respective state constitution.  So, while there is much to like in the appellate decision in Van Salter, we won’t get this fully right until legislatures begin doing that job.  As I’ve expressed it, “When it comes to regulating law enforcement access to information, my preference is for legislative differential regulation, by which I mean a hierarchy of regulation proportional to privacy, yet responsive to law enforcement needs, subject to a constitutional backstop.”

It’s been over a decade… we are still waiting.

The Reasonableness of Police Force and Supreme Court Concurrences

I have recently written in critique of appellate courts not getting their job done—not reasonably looking to achieve consensus, and instead judges seeming to write separate opinions, well, just because they each can.  Along comes a wonderful case study, courtesy of the Supremes: Barnes v. Felix, No. 23-1239 (U.S. May 15, 2025).

The issue in Barnes is legally straightforward.  The Fourth Amendment prohibits unreasonable searches and seizures, and one manner in which a police officer might act unreasonably is through excessive force.  Even if, say, there is the necessary reasonable suspicion warranting a temporary investigative detention, it cannot be achieved, without more, by taser, by baton, or (thank god) by bullet.  And, in assessing the reasonableness of police force, courts must assess the totality of the circumstances.  All of this is well established, and so Barnes merely had to reject a strange Fifth Circuit rule, and a rule doubted in concurrence by the very author of the underlying Fifth Circuit opinion (yet nonetheless operating as circuit rule under its rule of orderliness).  That “moment-of-the-threat rule” looked only “to the circumstances existing at the precise time an officer perceived [a] threat,” which is definitionally not the totality.  Thus, ‘no,’ said the Supreme Court in Barnes, we meant what we have always said: Fourth Amendment reasonableness determinations are made considering the totality of relevant circumstances.  The end.

Easy enough.  So, it is wonderful (genuinely) to see Barnes be a unanimous opinion (authored by Justice Kagan).

If I am to critique that opinion in light of the ‘do your job and do it well’ framework, it’s that it is unnecessarily long.  For a case as straightforward as this one, perhaps the student who inquired, “Is this a five-paragraph essay or a seven-paragraph essay?” thinking there were only such two types in the world, was not so wrong.  When you can get the job done so quickly, it would best serve the purposes of the law if you do.  So when, after rather exhaustively saying, every which way, how consideration of a single moment is not a totality, the Court went on to address the strained arguments of respondent to the contrary… we could do without.

But, again, unanimity!  I’m reasonably content.

Until, that is, you get me started on the concurrence of Justice Kavanaugh, joined by Justices Thomas, Alito, and Barrett.  How could one possibly need to concur, you ask, in such a straightforward question-of-law case?  Is it because the legal rule is actually not as easy as it seems?

Oh no.  Nothing of the sort.

Kavanagh “write[s] separately to add a few points about the dangers of traffic stops for police officers.”  There was this tragic stop on April 8, 2023, you see, in Cameron, Wisconsin.  And then another on December 8, 2024, in Terrell, Texas.  Now, in a nation of 340 million persons, one might question whether law-by-anecdote is often helpful; whatever that case, it certainly serves no good purpose in Barnes.  Our federal courts, after all, are limited to cases and controversies—thus, unlike the wonders of law school moot court in which every case somehow turns on a policy debate over something like “the dangers of traffic stops for police officers,” in the real world cases are supposed to bring with them facts about actual persons doing actual things.  I do not diminish that there may have been tragedy in April of 2023 in Cameron, Wisconsin.  Indeed, there may also have been such in December of 2024 in Terrell, Texas.  But neither is of any moment in holding that the Fifth Circuit cannot consider only a single moment in Fourth Amendment analysis when the law requires consideration of totality.

But, seems to respond Justice Kavanaugh, you don’t get it.  After all, “[f]leeing from [a] traffic stop could suggest that the driver is preparing to commit or has committed a more serious crime.”

Well, yes, but the matter here… “The driver may have illegal drugs or an illegal gun.”

Um, okay, but either way… “Or the driver may be unlawfully in the country.”

Uh, we just need to… “He might have a warrant out for his arrest.” 

Again, the issue in this case… “He could have an abducted child in the car.”

Wait… what?!

“I could go on,” threatens Kavanaugh on page six.  Sigh.

Sometimes, less is more.  Our High Court could provide better example.

Silence During Interrogation and United States v. Ward

Constitutional provisions come to us “on faded parchment,” and so it goes with the Fifth Amendment privilege against compelled self-incrimination.  “No person shall be … compelled in any criminal case to be a witness against himself.”  Sounds easy enough.  But the devil, of course, is in the details.

After all, since criminal defendants could not testify at the American Founding—they were disqualified as interested party—what were the Framers thinking?  Probably, that there should never be Star Chamber adjudication in America, meaning no “cruel trilemma of self-accusation [the damning truth], perjury [the lie] or contempt [for refusing to speak]”—there will be a fourth option of silence.  Then again, that’s a hard fit with the reality of the ‘uncounseled-defendant-speaks trial’ of yesteryear, and so, again, this gets complicated, including when it comes to trial use of interrogation silence.

I will get to those details, particularly as relevant to the Tenth Circuit’s opinion in United States v. Ward, No. 23-7088 (10th Cir. May 6, 2025).  But, first, let’s first frame the issue.

And let’s begin with a statement in favor of the Privilege by famed defense lawyer Edward Bennett Williams (think Williams & Connolly):

If our primary goal were the punishment of the guilty at all costs, it would be difficult to find contemporary justification for this [Fifth Amendment privilege].  Without doubt it hinders the conviction of the guilty far more frequently than it protects the rights of the innocent.  Attempts at pragmatic justification of the privilege are often made on the ground that it prevents the third degree and encourages more scientific methods of crime detection.  These arguments are far from conclusive. … The real justification for the privilege must rest upon higher grounds. …

Dean Erwin Griswold of Harvard gave one of the clearest expressions of the justification for the privilege when he wrote: “I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized.  As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition of torture.  Now we look upon torture with abhorrence.  But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed.  We want none of that today, I am sure.  For a very similar reason, we do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands.  We have through the course of history developed a considerable feeling of the dignity and intrinsic importance of the individual man.  Even the evil man is a human being.”  

The same view was adopted by Abe Fortas of the District of Columbia bar, who stated: “The fundamental value that the privilege reflects is intangible, it is true; but so is liberty, and so is a man’s immortal soul.  A man may be punished, even put to death, by the state; but if he is an American or an Englishman or a free man anywhere, he should not be made to prostrate himself before its majesty.  Mea culpa belongs to a man and his God.  It is a plea that cannot be extracted from free men by human authority.  To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.”  

The justification of the privilege has been challenged on the ground that it consists of a conclusion without explanation or proof.  The problem is that explanation and proof require reference to more basic principles.  The privilege against self-incrimination is a most basic principle.  It is a fundamental attitude rather than a conclusion of law.  As such it can be accepted or rejected, but it cannot easily be proved.

That’s from Williams’ 1962 book, One Man’s Freedom, and, like much of the work, for me it stands the test of time.  Some (myself among them) believe there cannot be meaningful debate regarding fundamental moral disagreements, and the Privilege, says Williams, may fall into that camp.  Now, that doesn’t make the details of application easy… yet it sometimes makes one more patient with difficult details when she understands the matter to be important.

With that backgrounding, let’s dig in.  But let’s first consider non-legal silence, meaning silence in our everyday lives.

Is silence in response to a question generally probative?  Sure.  “Did you eat the last cookie?!”  Silence.  What parent will infer nothing?  To be sure, there are innocent explanations; perhaps the child just suffered a severe stroke, and cannot speak.  But, as the law of parsimony (Occam’s Razor) teaches… it is more likely that consciousness of guilt has rendered her silent.

“Did you sleep with him/her?!”  Silence.  Inferences will be made.

So, silence in response to questions can be probative, and it is not generally socially acceptable in American culture to simply ignore questions, no matter how annoying they may be.  Lord knows, there are plenty of times that we curmudgeons would prefer to be silent in the face of chatty folk, but we normally do otherwise precisely for this reason.

Now let’s transition to the legal context, beginning with the Griffin v. California issue.  Is a defendant’s refusal to take the stand in a criminal trial generally probative?  Much less so, given the substantial reasons a factually innocent defendant might wish to avoid testifying, from general timidity and poor skills of articulation under pressure, to prior convictions (or fruits of some constitutional violations) that then become game for impeachment, to simply a refusal to acknowledge an entirely unjust prosecution.  There are several reasons independent of guilt not to testify, and the choice is a planned, counseled, and strategic decision, not a spur-of-the-moment ‘freeze.’  In short, silence tends to be inscrutable in this context.  And since any commentary or instruction regarding a defendant’s choice not to testify tends to confuse, or at least distract from, the State’s burden of proving each and every element of the crime beyond a reasonable doubt, well, it simply isn’t worth the candle.  Griffin’s got that one right.

(And then so does Carter v. Kentucky, recognizing a defense right to a ‘no inference’ jury instruction, before all went nuts in Lakeside v. Oregon, permitting such instruction over defense objection.  Now, it does make sense that a court typically can do what is correct, regardless of what a defendant (or prosecutor) wishes.  But to be so committed to the jury not drawing an adverse inference that we insist upon telling the jury just that… even when the defendant thinks doing so makes just such an inference more likely?  Isn’t the person with her neck in the noose the most-likely best judge?  You must not picture an elephant!  But you just did.  So, I’m with Griffin and Carter, but not Lakeside.)

To recap, Griffin is best seen as (1) the incoherence of trial silence, (2) combined with therefore needless confusion regarding the State’s burden of proof.  Sure, I’d rewrite the Court’s opinion on the ‘why,’ but I agree with the rule, whether we find it in the Due Process Clause or the Privilege.

Creeping nearer to the facts of the Tenth Circuit in Ward, what then of post-arrest, post-Mirandizing complete silence.  So…

“You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak to an attorney, and to have an attorney present during any questioning.  If you cannot afford an attorney, one will be provided for you at State expense.”

And then arrestee silence.  She says nothing.  Or, she explicitly invokes her right to silence and/or her right to such attorney.

Should the Constitution permit the State to introduce that silence against the defendant at trial?  What on earth for?!  Talk about inscrutable!  In this situation, with an arrestee just promised a right to silence and that speaking will be used against her, it borders on the bizarre to allege anything incriminating from silence; so, says the Court in Doyle v. Ohio, due process steps in to forbid any such use.  (Including, says Wainwright v. Greenfield, any use for purposes of impeachment.)  In the Supreme Court’s words, this sort of silence is “insolubly ambiguous.”  Agreed.

So far, so good.

Now we are ready for Ward.  What if the Mirandized arrestee waives her right and does speak, admitting her role in a joint crime, in Ward a violent attack on three persons.  And then as defendant she later chooses to testify at trial, now adding that the reason for her role was duress—she was acting under threat from the other criminal.  Can the prosecutor ask why she did not allege that coercion during the police interrogation?  She was happy enough to admit her role in the crime then.  Why not also allege this motivation?

I have trouble seeing how this is fundamentally unfair.  In this situation, as in ‘Did you eat the last cookie?,’ silence strikes me as quite probative.  Sure, there are potentially innocent explanations for why this defense wasn’t raised until trial.  But there is also the straightforward one: she didn’t know to allege it until she had lawyered up and had time to plan.  So, here I feel argument on you-answered-many-things-but-not-this seems customary grist for the jury mill, as when Salinas clammed up upon being asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime, but in no manner seemed to invoke the constitutional privilege.  Such a legal line is imperfect, to be sure, as it may be hard to know precisely when a layperson is attempting to invoke a constitutional right (in which case silence becomes inscrutable), as opposed to clamming up in recollection of guilt.  But life is ever imperfect, and so I understand why Salinas walks that line, and it seems applicable in Ward as well.

In summary, I consider myself a fan of the Privilege and a believer in Griffin and Doyle.  But I think Ward wrongly decided.

(Ward was plain error review, but I’m not focusing on that as there was preexisting Tenth Circuit precedent in a case called Canterbury.  I’m interested in what is ideal and what the Supreme Court has said, not on the particulars of Tenth Circuit jurisprudence; on my read, Canterbury adds nothing helpful of substance.)

If you see things differently, I’d love to hear why.

Academia’s Farcical Foursome

It began in 1954, with Kingsley Amis publishing Lucky Jim.  Surely generations of student-turned-professors had already found academia absurd, but nobody had articulated it quite so well.  So, if you find yourself nearly fed up with pretention, manipulation, incompetence, and all else that goes with, you owe it to yourself to spend some time with Jim Dixon, Margaret Peel, Christine Callaghan, and the Welch gang.

“How had [Welch] become Professor of History, even at a place like this?  By published work?  No.  By extra good teaching?  No in italics.  Then how?” 

And so it goes, with my favorite exchange being this one between Dixon and Callaghan:

“Because I like you and I don’t like him.”

“Is that all?”

“It’s quite enough.  It means each of you belongs to the two great classes of mankind, people I like and people I don’t.”

Amen.

Just two notes.  One, while there are wonderful female characters in all four works I am going to highlight, there is an unfortunate something to it having begun in 1954: the prof leads are all male.  So, there is a void for some great author to fill, to be sure.  Two, there have been at least a couple film adaptations of Lucky Jim (one of which is not Bob Odenkirk’s Lucky Hank—more on that in a moment), but I haven’t seen them.  I too have homework to do.

Next up, published in 1975, is David Lodge’s Changing Places: A Tale of Two Campuses.  I can’t rate this one with the other three… but nor do I wish to leave it out.  As Lodge explains in a 2010 Introduction, it was born when he took a leave of absence from his Birmingham University lectureship for a stint as a visiting Associate Professor at UC Berkeley.  It is likely to be most enjoyed by those who know at least a bit about ‘across the pond,’ and who think fondly of a thing or three from the 1960s.  The adventures of professors Philip Swallow and Morris Zapp are easily digested, and they continue forward into what becomes a trilogy.  I am a huge fan of that format (here I give a nod to its master, Robertson Davies), but while I certainly enjoyed the antics of Changing Places, again, I can’t place it equal to the other three in my ‘pantheon.’  Still, it is a fun read.

Which brings us to 1985, and Don DeLillo’s White Noise.  This one is so unique that it’s hard to know where to begin.  But from the disciplines of Hitler Studies to car crashes to Elvis; to an airborne toxic event (Nyodene D.) that ultimately makes sunsets unbelievably beautiful; to the secret life of unlicensed psychopharmaceutical Dylar… there is just something in this novel’s DNA that sings. 

“We are the highest form of life on earth,” DeLillo notes, “and yet ineffably sad because we know what no other animal knows, that we must die.”  Thus it is that “all plots tend to move deathward.  This is the nature of plots.”  Sigh.  And yet there is “the day Wilder got on his plastic tricycle” and those sunsets from the overpass… you owe it to yourself; give this one a read.

There is also a 2022 film adaptation starring Adam Driver as Professor Jack Gladney.  It had great promise, but I felt it lost itself partway through.  At the least, one ought to first read the book, as is typically the case.

Last, but most definitely not least, there is Richard Russo’s 1997 Straight Man.  Russo is one of the few authors for whom I would recommend reading every novel he has written, even as one ought not expect each to match his best, three brilliant works written a row: Nobody’s Fool (ultimately the first of the North Bath Trilogy), Straight Man, and Empire Falls.

As for our focus here (the academic novel), there is no better ridiculous—yet mostly loveable—academic than professor William Henry (“Hank”) Devereaux Jr.  So, if you are going to read only one, as they say, make it Straight Man.

Finally, there are excellent film adaptations of some of Russo’s work.  Paul Newman is spot on as Donald “Sully” Sullivan in Nobody’s Fool, surely because he was right in thinking “the character … the closest to himself that he had ever played.”  Ditto Ed Harris as Miles Roby in Empire Falls… and there you get an ever-wonderful Philip Seymour Hoffman and the last Paul Newman work to boot.  But while I am a huge fan of Bob Odenkirk—I am the proud owner of the LWYRUP plate in Oklahoma—I’d give Lucky Hank a pass.  It is the plot of Straight Man, sort of (paying homage in title to Lucky Jim)… but scripted in a way that it could have, had it not bombed out, become a continuing series.  Yup, that’s precisely the way to ruin a brilliant one-off.

Let’s Be Reasonable About Geofence Warrants (Part 2) – United States v. Chatrie

If you give the United States Court of Appeals for the Fourth Circuit thirty thousand words, you get a single per curiam sentence of ‘law’: “The judgment of the district court is AFFIRMED.”  That’s it.  Eight words out of some 34,000.  Some 0.02%.  That’s all the en banc court could manage to agree upon in United States v. Chatrie, __ F.4th __, No. 22-4489 (4th Cir. Apr. 30, 2025).

This is not what I had in mind when I urged courts to be reasonable in analyzing the constitutionality of geofence warrants.  I mean, if you give a mouse a cookie, it only takes some dozens of lightly-worded pages to figure he’s going to need a glass of milk… and another round.  It can be digested in two and a half minutes, and the entire house gets cleaned in the process.  The Fourth Circuit’s 126-page pdf?  Eight concurrences and a dissent.  Not a single cookie.  And certainly no milk chaser.

And while that’s playful, I don’t mean to be dismissive… because this stuff matters.  Indeed, it’s this sort of thing that makes my eyes roll when anyone accuses a certain person or event of ‘threatening democracy’ or the ‘rule of law.’  Again, not because that stuff doesn’t matter.  It of course does.  A lot.  But because anyone paying attention must know how broken everything already is.  Chatrie isn’t some cattle-call justice in a small misdemeanor court (which is appalling), this is some I-don’t-even-know-what-to-term-such-incompetence in a full federal circuit court of appeals.  This is you had a single job—to come to terms on how the Fourth Amendment regulates this no-longer-very-novel law enforcement technique—and you entirely blew it.  You didn’t, like we require of layperson juries, have to achieve unanimity.  You merely had to achieve majority.  And you failed.  Utterly.  And that is despite all of your legal training and experience, despite the Fifth Circuit ‘going first,’ and despite having a good number of the best minds in law arguing the case and otherwise chiming in as amici.  This doesn’t inspire confidence.

Of course, it would never be the last word anyway, and maybe this appellate disaster will hasten getting the issue before the United States Supreme Court.  But I submit that our appellate courts, speaking generally, ought to do better: fewer, shorter opinions that actually agree upon something.  (Looking at you, Justice I’ll-write-separately-about-anything-even-when-I-do-agree Gorsuch.)  The reason we have multiple-person courts is to work by consensus.  So, let’s try and do that.

When I was a baby lawyer, I clerked on the Fifth Circuit Court of Appeals, and I was too eager/naive to appreciate my judge’s reasoned decision to sparingly dissent.  I get it now, Judge.  It’s not that one pretends agreement… it is that one appreciates our system working by majority and, yes, when possible, by unanimity.  There are many true things in life that simply don’t need to be said.  In this, law is no different.

So, here’s to hoping courts can better strive for agreement, operating by majority.  As for the Fourth Circuit in Chatrie, it went like this…

Judge Diaz wrote alone to argue solely for no suppression: these officers, Diaz agreed with the district court, acted in reasonable reliance upon a warrant issued by a neutral and detached magistrate.  “[S]ome may say that I’ve done nothing more today than kick the geofence warrant can down the road.”  True.  “But … my colleagues … [have] gifted law enforcement (and the public) a labyrinth of … advisory opinions, many pointing in different directions.”  Also true.

Judge Wilkinson, joined by four others, argued there was no search under the third party doctrine in “straightforward application of Smith [and] Miller.”  Sigh.  And, “[e]ven if there was a search, there is no room for emergent judicial hostility toward this new investigative tool.”  With that I agree.

Judge Niemeyer, flying solo—he also joined two other opinions, but, you know, one… er, I mean two… is never enough!—argued there is no search because geofencing is akin to “law enforcement [being] entitled to retrieve boot prints, tire tracks, shell casings, [or] a scarf or a cap” left at the scene.  “Collecting markers such as these from public places or third persons is the stuff of law enforcement” (emphasis added).  Well, yes, but that’s why the framers wrote a Fourth Amendment.  Even the extremely minimal law enforcement of their day (when compared to our own) made them realize the need.  So, no, the case is not “well-removed from the text of the Fourth Amendment.”  Not at all.

Judge King, flying solo, only required two sentences.  After all, he too had already joined in the concurrences of Wilkinson and Richardson.  But, look, when everyone is writing… you’ve just got to get in on the fun!  So, he helped out by explaining, “I am pleased to join in the fine concurring opinions of Judge Wilkinson and Judge Richardson.”  Well, yes, if you are pleased, do let us know… are we returning to the seriatim opinions of each Law Lord?  “In addition, I agree that the officers acted in good faith”—by which King means reasonable reliance, upon the warrant.

Judge Wynn, joined by four others… (Or, wait, is it five?  Well, Judge Gregory was having none of Wynn’s footnote one, which asserts that reasonable reliance prevents suppression in this case.  So, joined by four if you include that footnote, five if you don’t.)  Judge Wynn strongly urged that geofencing is a Fourth Amendment search post-Carpenter, arguing that Kyllo, Jones, Riley, and Carpenter transformatively moved beyond the third party doctrine and it’s “public-surveillance” easiest case.  I agree.  For Wynn, “Carpenter established a multifactor approach to assessing reasonable expectations of privacy in digital information.”  I don’t disagree, as of course reasonableness is the constitutional criterion, and it’s hard for reasonableness to operate otherwise.  But it would be a mistake, I think, to believe any particular factors necessarily control.  See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (rejecting a “magical on/off switch” triggering Fourth Amendment protections in the context of deadly force).

Judge Richardson, joined by six others, argued there was no Fourth Amendment search given the “specialized form of location information maintained by Google,” keeping this case within the traditional third party doctrine, at least for this two-hour block of voluntarily stored data.

Judge Heytens, joined by two others, rejected the “strong medicine” of suppression, regardless of whether a Fourth Amendment violation may have occurred.  Now, you might wonder why yet another judge needs to write this up… or, maybe you would not wonder, having made it this far in.  For what it’s worth, the reason seems to be because Heytens wanted to focus on the Supreme Court’s relatively recent move to a case-by-case exclusionary rule that “deter[s] deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” rather than focus on the ‘special case’ of reasonable reliance upon a warrant.

Judge Berner, joined by four others… (Or, wait, is it five?  Once again, one judge (the just-having-written Heytens!) was only willing to join portions of this opinion because, hey, there just weren’t enough judicial opinions to get it all out there!)  Judge Berner worked with Google’s attempt at selective revelation, holding that while the initial investigative step revealing pseudonymized information was no search, the later steps revealing Chatrie’s location information were (any amount of de-anonymized location information will do), and that here the warrant issued without the necessary probable cause.  While I do not think it helpful to break things down into ‘no search’ and ‘search’ components, I agree that reasonableness commends—and certainly permits—a properly implemented selective revelation framework that establishes the necessary probable cause.

Judge Gregory was the lone dissenter.  (But remember he joined Wynn’s concurrence, minus footnote one… oh, and he also joined Judge Berner’s concurrence.)  Gregory wrote separately, then, to argue against application of the reasonable reliance exception to the exclusionary rule.

Got all that?  Neither do I.  Which is, again, why courts need to do a much better job of working to majority.

Summary of the U.S. Sentencing Commission’s 2025 Guideline Amendments

    On April 11, the U.S. Sentencing Commission adopted proposed amendments to the Federal Sentencing Guidelines. The amendments will become effective November 1, 2025, unless Congress passes a statute changing them, which is highly unlikely.

    The “Reader Friendly” version of the amendments is 682 pages. Below is a concise “TL;DR” table for busy professors and practitioners, followed by a more detailed summary:

 

Amendment	Summary	Effect
Simplification: Eliminating Most Departures	Original introduction and most departures moved to appendix; variances encouraged instead of departures	Guidelines simplified; judicial discretion increased
Supervised Release Reform	Judges encouraged to (1) use tailored, rehabilitative responses to violations instead of revocation, and (2) impose individualized supervised-release lengths and conditions	Shorter supervised release terms and less onerous special conditions
Drug Guidelines: Mitigating Role	Judges encouraged to apply mitigating role adjustments more frequently if offender’s “primary function” was lower level	Reduction in guideline range for lower-level drug offenders
Drug Guidelines: Fentanyl “Fake Pill” Cases	Lowers mens rea for enhancement from “willful blindness” to “reckless disregard” for offenders who sell fentanyl disguised as legitimate pharmaceuticals	Increase in guideline range for certain fentanyl offenders
Firearms: Machinegun Conversion Devices	Adds enhancements for offenders who transform semi-automatic firearms into fully automatic weapons	Increase in guideline range for certain firearms offenders
Circuit Conflicts: Physical Restraint Definition	Enhancement requires actual physical restraint for robbery enhancement (not just threats with firearm)	Less frequent application of physical-restraint enhancement
Circuit Conflicts: Criminal History and Intervening Arrest Rule	A traffic stop is not an “intervening arrest” for criminal history scoring	Multiple prior sentences more often treated as a single sentence
New Advisory Group: Sentence Impact Advisory Group (SIAG)	Advisory group of individuals sentenced for a federal offense or family of the same	Incorporate perspectives of sentenced individuals
New Advisory Group: Ad Hoc Research and Data Practices Advisory Group (RDPAG)	Experts to advise on data use and research practices	Incorporate perspectives of external experts on best practices

 

Simplification – Eliminating Most Departures

    Stakeholders have been passionate about simplifying the Guidelines since their creation, but the Commission has never enacted substantial simplification reforms. Until now. The 2025 simplification amendments remove one step from the Guidelines analysis and delete huge chunks from the Guidelines Manual in the process. The omitted sections will be moved to a separate appendix, reducing the weight of many messenger bags across the country.

    The 2025 simplification amendments formalize what judges have been informally practicing since United States v. Booker (2005) and Irizarry v. United States (2008): simplifying the sentencing process from three steps to two by removing most departures. Previously, judges (1) calculated the guideline range, (2) considered formal guideline-based departures, and (3) applied § 3553(a) sentencing factors. Given that departures have steadily declined in favor of variances, the Commission now officially streamlines the process into two steps: Guideline calculation (incorporating any Guideline adjustments) followed directly by considering § 3553(a) factors for the final sentence determination.

    Certain departure provisions that were most used or were congressionally mandated (e.g., benefits for providing substantial assistance or for participating in “Fast Track” programs) are retained. Additionally, the departures that are moved out of the core Guidelines Manual and into an appendix can still be considered for the purpose of imposing a variance. Given the decline in judges’ use of departures anyway (now very rarely imposed), it is not clear to me that there is much of a difference on the ground for most offenders by moving departures to an appendix. But any reduction in the complexity and length of the Guidelines is welcomed by most.

    The simplification amendment might do much more symbolically, though—it reemphasizes to judges the advisory nature of the Guidelines. The amendment, like the next one discussed, urges judges to take more control over sentencing discretion. The Commission explicitly told judges to stop looking at statutes like 28 U.S.C. § 994 (Duties of the Commission) for binding sentencing directions. That statute, the Commission tells judges, was Congress telling us what to do, not you. (“A new background commentary to this section explains that the requirements and limitations imposed upon the Commission by 28 U.S.C. § 994 do not apply to sentencing courts.”)

    The judge’s task is simpler: impose a sentence that is “sufficient but not greater than necessary” to comply with the plurality of sentencing purposes set forth in 18 U.S.C. § 3553(a) (retribution, deterrence, public safety, and rehabilitation). And while Congress gave the Commission a short leash in Title 28 regarding what it can and can’t consider when drafting guidelines, Congress has told judges in Title 18 that “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. This seems like a permission structure for judges to begin with the Guidelines, but to get more comfortable deviating in appropriate circumstances. (See also, of course, Stith and Cabranes, Fear of Judging. For the view that this amendment goes even further than what I’ve stated here, see this episode of Set for Sentencing.)

Reforming Supervised Release

    This important amendment focuses on supervised release terms, conditions, and violations.

    Congress originally envisioned supervised release as a creative tool judges could employ selectively to either (1) impose a shorter term of imprisonment combined with supervised release for lower-risk offenders, or (2) “ease the defendant’s transition into the community after the service of a long prison term.” S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). This somehow morphed into a de facto term of three, five, or even more years of supervised release in almost every federal sentence, imposed “reflexively” according to the Commission. The onerous conditions of supervised release meant that many offenders had their liberties restricted far more than the average citizen for years after serving their prison sentence, and many offenders are repeatedly reincarcerated for minor violations.

    The amendment begins with some helpful conceptual clarity. It explicitly distinguishes supervised release (aimed primarily at reentry and rehabilitation) from probation (part of the original punitive sentence). Judges have sometimes conflated the purposes of probation and supervised release, resulting in revocations of supervised release and reincarceration for reasons that seem more appropriate in the context of probation revocation. This amendment aims to clarify the conceptual differences. (If you’ll allow a slight digression, the probation-revocation statute still has a quite obvious scrivener’s error. See, e.g., United States v. Coatoam, 245 F.3d 553 (6th Cir. 2001) (“There can be no doubt that the reference to § 3563(a)(4) . . . is an error.”)).

    The next change directs judges to conduct an individualized assessment of whether the offender even needs supervised release in the first place, and whether special conditions are actually appropriate for this offender. Judges shouldn’t just reflexively impose these things, unless required by statute. This change should free up at least some resources so that probation officers can focus on individuals who actually need supervision. The change is also fair. Supervised release, like all parts of the sentence, must be “sufficient, but not greater than necessary, to address the purposes of imposing supervised release on the defendant.” 18 U.S.C. §§ 3583(c). Instead of automatically imposing onerous terms for three or more years, judges might now impose targeted terms and conditions, and perhaps impose only a one-year term instead of three (if applicable statutes allow) to see how the offender performs.

    Judges are also encouraged in the amendment to adopt graduated sanctions for supervised release violations rather than automatic revocations. Courts now have clearer endorsement to apply intermediate responses—such as modified conditions or increased treatment—prior to resorting to reincarceration. Additionally, the amendment makes it a bit easier for judges to terminate a longer term of supervised release when the offender demonstrates that it is no longer needed. Long term, these changes could meaningfully reduce unnecessary terms of supervision, conditions of release, and revocations.

Drug Sentencing Adjustments: Clarifying Mitigating Roles and Fentanyl Risks

    Drug sentencing saw two notable adjustments—one reducing sentences and one increasing them. First, the amendments aim to reduce sentences for low-level drug offenders. Offenders who play only a minimal or minor role in drug trafficking should not face the same sentence as a kingpin. But the Commission said that judges either weren’t aware or had ignored the Commission when its 2015 amendments tried to get judges to more frequently apply reductions for offenders playing a minimal or minor role. “Commission data shows that the prior amendment did not result in a sustained increase in application of the mitigating role adjustment in §2D1.1 cases.”

    The Commission is now trying to be crystal clear to judges that they should apply these reductions more frequently. Specifically, the Commission directs judges to consider whether the offender’s “primary function” was lower level. This is easier to satisfy than §3B1.2 mitigating-role eligibility. To hammer the point home, the Commission even moved this discussion directly to the §2D1.1 Guideline so that judges and parties can’t miss it (instead of remembering to flip to Chapter 3 of the Guidelines Manual after the Chapter 2 calculations are done). “The amendment places the special instruction in §2D1.1 instead of §3B1.2 to highlight that the rules for determining §3B1.2 eligibility are different in §2D1.1 cases.”

    On the opposite end, the Commission strengthened penalties related to fentanyl. Previously, offenders who sold fentanyl disguised as legitimate pharmaceuticals were subject to enhancements only if prosecutors demonstrated “willful blindness” regarding the substance’s identity—a challenging standard. The 2025 amendment lowers the requisite mental state to “reckless disregard,” broadening applicability.

Resolving Circuit Splits: Physical Restraint and Intervening Arrests

    Like most years, the Commission also tackled several circuit conflicts. Is a victim “physically restrained” if the offender pointed a gun at them and said or suggested, “don’t move”? Some circuits held merely pointing a firearm during a robbery qualified as “physical restraint,” triggering a two-level enhancement, while others required actual physical confinement or binding. The amendment adopts the latter view, clarifying that the mere threat or display of a firearm, absent actual physical restraint, no longer qualifies for this enhancement.

    Additionally, the Commission clarified the definition of an “intervening arrest” for criminal history calculations. The Seventh Circuit split with other circuits over whether a mere traffic stop constituted an intervening arrest, resulting in increased criminal history points. Under the new amendments, traffic stops alone are explicitly excluded, meaning offenses separated solely by a stop count as related. Both of these changes may modestly lower criminal history scores for certain offenders.

Firearm Enhancements: Machinegun Conversion Devices

    The final amendment targets machinegun conversion devices—small kits (often known as “auto sears” or “Glock switches”) that transform semi-automatic firearms into fully automatic weapons. The amendment establishes specific enhancements for possessing multiple devices or distributing even one. Possessing four or more devices triggers a two-level increase, while possessing thirty or more brings a four-level increase.

Creating Two New Advisory Groups

    Alongside Guideline amendments, the Commission launched two important advisory groups.

    First, the Commission wants to include offenders in these discussions. The Commission hears from practitioners, probation officers, victims, and even tribes in the form of longstanding advisory groups. The Sentence Impact Advisory Group (SIAG) is a new standing advisory group tasked with providing guidance on how sentencing policies affect individuals, communities, and the broader criminal justice system. It is composed of up to 9 members who have either been sentenced for a federal offense or are family members of an individual sentenced for a federal offense.

    The Commission also created the ad hoc Research and Data Practices Advisory Group (RDPAG). This advisory group of up to fifteen data and social-science experts will recommend best practices for how the Commission collects, manages, analyzes, and disseminates sentencing data. Letters of intent to join SIAG or RDPAG must be submitted by June 6, 2025.

    Critiquing what the Commission did and did not address this year, see Jonathan J. Wroblewski, Did the Sentencing Commission Just Make the Guidelines Even Worse?

Let’s Be Reasonable About Geofence Warrants

For years, I wrote a lot about the Fourth Amendment and new technologies (see summary in this note 6), so I was very pleased with the inflection point Carpenter v. United States, 585 U.S. 296 (2018), and I am naturally chuffed when the courts grapple with my work.  So, I certainly appreciate the Fifth Circuit using a bit of that work in United States v. Smith, 110 F.4th 817 (5th Cir. 2025), most recently repeated in In re Four Applications for Search Warrants, No. 3:25-CR-38-CWR-ASH (S.D. Miss. Feb. 21, 2025).  However, to the extent those courts categorically prohibit cell tower dumps (or “extractions”) and similar geofence requests as per se unreasonable general warrants, that is a step too far.

As I have developed elsewhere (Part II here and summarized in this recent keynote), the Founding dislike of general warrants was rather astoundingly personal, and not all that impressive—I mean, when you are smuggler, you don’t like the laws that catch you, right?  And so it was that what was routine in England became despised in America.  But it’s 2025 now, and we don’t have a crown across the sea bothering us about repayments that we normatively owe but don’t want to pay.  (See OverSimplified’s wonderful video, beginning around the 2:30 mark.)  And we have police… lots and lots of them.  And we have criminals… surely too many of them.  And some are dangerous.

So, at least for that dangerous subset, let’s not be James Otis hotheads and John Adams egotists.  Let’s be reasonable, which is not only the Fourth Amendment textual command, but in this context is actually rather straightforward.  Yes, warrant applications for cell tower dumps can satisfy probable cause and particularity if their protocols adequately leverage selective revelation to ensure that solely records for which we algorithmically have fair probability of criminality make their way to police.  The warrant applications in In re Four Applications didn’t do that.  But when warrant applications do, they ought to be approved, as I explain here.

The Fourth Amendment’s designedly ambiguous command has seen us through hundreds of years of remarkable social and technological change.  The third-party doctrine was a far-too-long-monolithic speedbump in that road, but the solution is not equally monolithic unreasonableness on the ‘other side.’

Let’s Amend the US Constitution

Classes in Criminal Procedure: Investigation and Criminal Procedure: Adjudication are of course constitutional law… we just smartly don’t title them as such to keep our colleagues from wishing to teach them.  Thus, at some point in some discussion, a student raises whether we ought to amend our federal Constitution to fix some particularly vexing issue, at which point we remind students of the reality.  That isn’t happening.  We just don’t do it.  Good idea or no – doesn’t much matter.  It’s just too hard, what with needing 2/3 of both houses of Congress and then 3/4 of all state legislatures (among equivalently-hard alternatives).  Hasn’t happened since 1992.  Which was a great year for graduating high school—the best, incidentally—but otherwise a year that doesn’t especially commend itself.  And that was finally adopting a proposal from… September 25, 1789.  At that rate, our best idea might become constitutional somewhere around the year 2225.  So, yeah, just not gonna happen.

And indeed, if one pages through what our Representatives suggest as constitutional Amendments, it reads like a list of ‘not gonna happen.’  A balanced budget.  A federal debt limit.  Repealing the Sixteenth Amendment.  Limiting the Presidential pardon.  Allowing sixteen-year-olds to vote.  Term limits for Congress.

So, here’s my plug: yes it is extremely difficult to amend our Constitution.  And yes that was purposeful, and probably Burkean smart (just take a look at what happens with state constitutions that run otherwise).  Still, amendment would be easier if we got used to it.  Grease the wheels through recent experience.

Thus, let’s take the dumbest provision in our Constitution and fix it.  Doesn’t matter what it is, so long as the change is not substantively harmful… because the point is to learn to do this thing, so we could collectively do it again for something more important.

My vote?  Requiring the President be “a natural born Citizen.”  What’s your pick?  What’s the most likely thing for which we could get the required fractions to agree?  What’s the lowest-hanging fruit?

Classroom Generative AI Hallucinations

In my textbook, I use the classic case of People v. Bisset, 92 N.E. 949 (Ill. 1910), in introducing common-law voluntary manslaughter.  It’s a colorful story of two plainclothes cops in a Chicago saloon that begins (oddly) friendly and ends (tragically) deadly.  Things begin to go south when one of the officers seizes a patron “over one of his pockets, and the two of them circle[ ] and scuffle[ ] across the room.  It is not pretended by any of the witnesses that they heard all that was said between them, but it is clear that [the officer] said to [the patron]: ‘I want what you have in your pocket; you know what I mean; I eat those things.’ ”

Based upon the context, I’ve always considered the best reading to be that the officer had seen the patron was carrying a gun, and “I eat those things” was ‘tough guy’ speech for demanding the weapon.  Like many of the great cases we use in the classroom, the short speech is a delightful gem that can provoke useful tangents on matters such as witness recollection and scene recreation, and students and I always share a laugh over the words.

But this year introduced something new.  A student loudly proclaimed a different, very particular factual cause: the item demanded was a potato.  Yup, not a gun, but that starchy tuberous wonder-of-nature.  I had never heard such claim before, and it doesn’t seem to fit the case, so I expressed suprise but interest.  The source of the claim?  According to the student, ChatGPT.  Later, the student followed up, admitting it appeared a hallucination.

After class, I naturally went right to the (ever-changing) source, and it gave a better explanation:

SEH: In the case of People v. Bisset, 92 N.E. 949 (Ill. 1910), what did the cop mean by, “I eat those things.”

ChatGPT: In People v. Bisset, 92 N.E. 949 (Ill. 1910), the phrase “I eat those things” was reportedly said by a police officer in response to a suspect’s resistance or aggressive behavior.  This was likely a colloquial way of expressing that the officer was experienced in handling such situations and was unfazed by the suspect’s actions.  Essentially, it suggested confidence and a lack of intimidation—implying that dealing with resistance was routine for him.

When I followed up with, “Somebody thought it was a potato,” ChatGPT did a predicably nice job:

ChatGPT: That’s an interesting take!  If someone thought the phrase “I eat those things” referred to a literal potato, they were likely interpreting it too literally.  The officer wasn’t talking about food—he was using a figurative expression, likely meaning that he was accustomed to handling situations like the one he was in.
But now I’m curious—where did you hear that someone thought it was a potato?

Ah, the delights of apparent machine consciousness.  Curious, it is.  Well, of course I obliged: “It was in my law school class.”

ChatGPT: That’s hilarious!  Law school discussions can take some wild turns, but imagining someone genuinely thinking the officer was talking about a potato is next-level.  Did the professor let it slide, or did they pause the class to unpack that interpretation?

SEH: I’m the professor, so I indeed did not let it slide...and the student claimed he got the answer from you!

ChatGPT: Oh wow—busted!  I can assure you I never told anyone that the cop in People v. Bisset was talking about a potato.  But I have to admire the sheer creativity (or audacity) of that student’s defense.
Did they double down on it, or did they eventually admit they might have, uh, misinterpreted things?

SEH: Oh, they definitely stuck to blaming you.

ChatGPT: I respect the commitment, but I must protest my innocence!  No potatoes were involved in my analysis of People v. Bisset.
That said, if this student can argue in court as confidently as they defended their potato theory, they might have a future as a litigator.  Did they at least try to justify their interpretation, or was it just a desperate attempt to shift the blame?

SEH: Ha!  The latter.

ChatGPT: Classic move—when in doubt, blame the AI.  I admire the hustle, but I’m afraid I can’t take the fall for this one.  No rogue potato theories originated here!
Next time, you should make them write a full legal analysis on The Role of Potatoes in Early 20th Century Jurisprudence.  See how far they’re willing to take it.

SEH: Clever; but how can you actually know you didn’t generate the theory?  [It of course can’t, including because contractual models can prevent feedback, etcetera.]

ChatGPT: Fair question! Technically, I don’t have perfect recall of everything I’ve ever said (OpenAI doesn’t give me memory), so I can’t guarantee that I didn’t once go on some bizarre potato-related tangent.  However, I’m pretty confident for two reasons:
1. It makes no sense – I analyze legal cases based on precedent, logic, and historical context. Unless there was some wildly obscure potato-related legal doctrine at play (which, to my knowledge, there wasn’t), I wouldn’t have had any reason to generate that theory.
2.The phrase in context – “I eat those things” is a pretty clear idiomatic expression. It would be an extraordinary leap for me to misinterpret it as a literal reference to food—especially in a legal case.
That said, I love that the student thought blaming me was their best defense.  It’s almost like a real-life Crumbling Infrastructure of the Internet exam question: “Your AI legal research tool gives you a wildly incorrect case interpretation.  Discuss the ethical and practical implications of relying on AI in legal practice.”
So—what’s the verdict, professor?  Do I get acquitted, or am I stuck with a lifetime sentence as the People v. Bisset Potato Conspirator?

I’ll let it go.  I for one welcome our new chat overlords.

Have AI-hallucinations (or at least student claims thereof) begun to enlighten your classrooms?

The Public Safety Costs of Trump's Immigration Policy

For my first substantive post I thought I would sound off on an issue that has been causing a lot of consternation down here in SoCal, which is the unintended consequences of the Trump DOJ's re-prioritization of immigration enforcement. Many have rightfully critiqued it for its racialized demonification of otherwise law-abiding, working immigrants. What has gotten less attention is the horrific potential consequences for public safety--a deeply ironic outcome for an administration that purports to care about crime-fighting. 

In recent years the U.S. Attorney's Office for the Southern District of California has led the nation in its prosecution of drug traffickers--the primary drivers of actual trans-border violent crime. Just a few miles away from Tijuana, a notoriously dangerous city due to cartel presence, San Diegans--immigrants and non-immigrants alike--enjoy one of the lowest violent crime rates in the U.S. In a recent interview, outgoing U.S. Attorney Tara McGrath gave a scathing critique of the negative changes for crime-fighting that will result from Trump's directive to refocus more than 20% of her District's federal law enforcement resources onto immigration offenses:

"They're preventing mass shootings, they're preventing terrorist attacks, they're preventing hate crimes. And they do that through generating intelligence. And they have an expertise in IT analysts and agents who track this information in our district and across the United States. And they do that day in and day out to keep track of who might be setting off alarm bells. And then they respond also equally...[S]o we have these organizations that are specialized in really essential components of what keeps people in this country safe from mass shootings, from ghost guns, from fires, from fentanyl. And now those organizations are devoting significant time to immigration enforcement."

I comment on this problem a bit more in this article. Immigrants are not going to be the only victims of Trump's xenophobic monomania.

Greetings!

Hi all,

I just wanted to introduce myself as a new contributor to the CrimProf Blog! I'm a prof at California Western School of Law in sunny currently rainy San Diego, where I teach criminal law, crim pro, evidence, and white collar crime. My research interests have included corporate criminal liability, victim impact statements, gendered violence, the Confrontation and Compulsory Process Clauses, and literary crime narratives in the eighteenth and nineteenth centuries. My most recent piece, "Familial DNA and Due Process for Innocents," forthcoming in the Southern California Law Review, considers the potential compulsory process and due process rights of innocent third parties in police access to familial DNA searching.  I'm really excited to be on board!

Erin

What Cobra Kai Teaches Profs

I’ve had a mixed relationship with Netflix’s Cobra Kai.  When it debuted in 2018, I thought it brilliant.  I’m a child of the 80s, and I’ve always been a fan of Karate Kid… and thus ever wondered how films two and three (and more if you want to keep counting) went so tragically off the rails.  The only good thing I could ever take from the third film was watching a RiffTrax, which had the wonderful line, “I wish I loved anything as much as that guy loves being evil” (as Terry Silver laughs hysterically in the hot tub).  (At least that’s how I remember it… I’m certainly not going to watch again just to get it right.)

So, when Cobra Kai Season One so brilliantly ‘flipped the script,’ well, I was hooked.  And Season Two added Stingray, so all was still good.  But as the series progressed, it became such a high school soap opera, and I never could understand just what was so evil about wanting to expand a franchise of karate dojos around the world.  Like if McDonald’s sold karate instruction rather than hamburgers and fries… would it be a sign of the apocalypse?  I don’t get it.

And thus it took me time to build up the stamina to watch final Season Six.  And even then I stopped partway through because… it was painful.  But, again, I’m a child of the 80s, and so I ultimately persevered.  And, in the end, I think they brought it home like the show began.  So, a fan at first is a fan at last.

The message of the series, of course (and without containing any plot spoilers, which are evil), is balance.  To win at life, one needs both the offense of Cobra Kai (or Eagle Fang) and the defense of Miyagi Do.  And just as Daniel and Johnny ridiculously struggle over the seasons with the same problems again and again… most of us professors at least feel somewhat the same frustration at trying to balance our responsibilities of teaching, scholarship, and service.  I personally find myself often frustrated that the incentive structures of my school (and indeed to me the greater profession) so poorly align with seeking excellence in all three pillars.

But I suppose that’s what I’ll take from Cobra Kai.  When I want to once again mentally rail against ‘the system’ because I think it misaligned, I suppose to a neutral observer that’s as ridiculous as the ninety-third time Daniel is shocked that Nariyoshi Miyagi was not the messiah.  ‘Insanity is doing the same thing over and over and expecting different results,’ as they say, and with balance so difficult to achieve in anything, I suppose my efforts are much better spent looking inward than worrying about what the University of Oklahoma, or any other world institution, is doing.

I knew all that time watching TV would prove worthwhile.

Trump and the Federal Death Penalty

In a number of my posts, I will be addressing Trump’s extraordinary Executive Order 14164, titled “Restoring the Death Penalty and Protecting Public Safety,” signed on Jan. 20, 2025 [“the EO”], as well as the follow-up memo from Attorney General Pam Bondi, issued on Feb. 5, 2025, titled “Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions” [“the Bondi Memo”]. I want to focus on a particular angle that I have looked at almost since I began my academic career in 2004, the federal death penalty in non-death-penalty States.

Although I am not opposed to capital punishment generally, I have argued in a series of articles and amicus briefs that the Cruel and Unusual Punishments Clause, properly understood as a matter of original understanding, forbids the imposition of any punishment, including death, that is unauthorized by the State in which the crime occurred. This argument has not been addressed by many courts but it was rejected by a 2-1 vote in the Second Circuit in United States v. Aquart, 912 F.3d 1 (2018) (Judge Calabresi did not reach the merits of the argument so he did not join the part of the opinion rejecting it). At the very least, there are serious sub-constitutional federalism concerns that should not simply be brushed aside when the federal government purports to impose the death penalty in States that have rejected it.

That is one reason that I find the EO and, in particular, the Bondi Memo troubling and incredibly hypocritical. It is, after all, the Republican Party that has traditionally purported to value federalism. But we are no longer in an age of traditional Republicanism, and Trumpist Republicanism has bulldozed through all sorts of constitutional values once held dear by the GOP. To be fair, the Justice Department, under Presidents of both parties, even President Biden, has sought the death penalty for crimes committed in non-death-penalty States. But what is troubling about the Bondi memo is that it provides two recent examples of murders calling for the federal death penalty, if possible, and both occurred in non-death-penalty States: the killing of David Maland, a U.S. Customs and Border Patrol agent, in Vermont; and the killing of Debrina Kawam in New York. Kawam, you might remember, suffered the horrific fate of being burned alive on a New York City subway car late last year. These fit, respectively, into the two categories of cases that the EO and the Bondi Memo single out for special treatment: “[T]he murder of a law-enforcement officer and capital crimes committed by aliens who are illegally present in the United States.” Maland, obviously, was a “law-enforcement officer,” and the suspect in Kawam’s killing is Sebastian Zapeta-Calil, an undocumented immigrant.

The basis for a federal prosecution of Maland’s killer is pretty clear: 18 U.S.C. § 1114(a)(1) forbids the murder of “any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties.” But the same cannot be said of Kawam’s killer, which is why the Bondi Memo wisely adds the proviso “to the extent these are federal capital crimes.”

What deeply troubles me is the ability of clever federal prosecutors to shoehorn what are state-law crimes where there is no apparent national interest to fit within federal statutes that are designed for other purposes. (This includes the federal indictment of Luigi Mangione in New York, which will be the subject of a future post.) As horrific as it was, the murder of someone riding the New York City subway implicates only very tangentially any national interest; that it made national news should not be enough. It falls instead within the purview of the People of the State of New York, as represented by the District Attorney of Kings County (Brooklyn) to prosecute. And the People of the State of New York, for better or worse, have rejected the death penalty.

But could Zapeta-Calil be prosecuted in federal court? Perhaps.

Continue reading

A Hidden Seizure Issue in Barnes v. Felix

I want to thank Steve Henderson for inviting me to blog once more on CrimProfBlog. According to my CV, which I have no reason to doubt, I last was a contributing editor here in 2009.

For my first blog post in sixteen years on CrimProfBlog, I wanted to discuss Barnes v. Felix, argued in the Supreme Court on January 22, 2025. Barnes is a § 1983 action alleging a violation of the Fourth Amendment. The facts are fairly straightforward. In April, 2016, Ashtian Barnes was driving a rental car near Houston, Texas. Unfortunately for Mr. Barnes, the rental car had, unbeknownst to him, accrued some unpaid toll fees. Respondent, Officer Roberto Felix, Jr., initiated a traffic stop and asked Barnes to step out of the car. The car started moving forward with the driver’s side door open, likely because Barnes was trying to escape. In rapid succession, Felix drew his gun, jumped onto the door sill of the moving car, and shot Barnes twice. The car came to a stop and Barnes died within minutes. The dashcam video of this brief and disturbing encounter can be seen at https://youtu.be/9gbM_22fUbY.

Petitioner, Barnes’s mother brought a § 1983 action alleging that Felix unreasonably seized her son by shooting him dead. The district court granted summary judgment to the officer and the Fifth Circuit affirmed, using the “moment of the threat” doctrine. The Supreme Court in Graham v. Connor instructed courts to look to the totality of the circumstances to determine whether an officer’s seizure by use of force was reasonable. However, in cases where police face an imminent threat of harm to themselves or others, courts that follow the “moment of the threat” doctrine – including apparently the Second, Fourth, and Eighth Circuits – look only, as the name suggests, at the instant before force was used by the officer. Thus, the courts here looked only at whether it was reasonable to use deadly force to prevent Barnes from driving away with Felix standing on the doorsill, which obviously posed a great risk of harm to Felix. In determining whether Felix’s actions were reasonable, they ignore Felix’s own unwise decision to place himself on the doorsill in the first place.

It was fairly clear from oral argument that the Court was going to reverse and remand on the ground that a strict “moment of the threat” doctrine is inconsistent with Graham’s “totality of the circumstances” approach. Any real uncertainty revolves around how much more the Court, and any separate opinions, might say.

But I want to address a more fundamental issue: whether this is properly thought of as a Fourth Amendment case at all.

Continue reading

Bar Journals Censoring Criticism of State Judges

The issue is viewpoint discrimination in state bar journals, but that’s facts without any of the flavor.  Here’s the story –

This past August—meaning in August of 2024—my research dean sent out an invitation to write “a short piece … for the Oklahoma Bar Journal’s April 2025 issue on Constitutional Law.”  I can’t claim to being particularly involved in my state bar; indeed, while I’ve long been a member of the bar in Texas, and then in my later home state of Pennyslvania (now inactive), I never took the time (and money) to be licensed in Oklahoma.  When I first moved to the state in 2011, I did make a few attempts to get involved in local matters—for example, trying to improve the Oklahoma system of civil forfeiture, and then its regulation of drone flight—but I can’t say I found the work sufficiently effective to be personally worthwhile, and so I focused my work elsewhere.

Until July of 2024, that is, when I turned over a new leaf and became a card-carrying member of the Oklahoma state bar.  And I accepted an invitation to serve on the Committee appointed by our relevant high court (more on this in just a bit) to draft uniform jury instructions.  It’s ever time to try and do a little good in one’s local world, I suppose … and here I went!

So, when I received that August invitation to write for the Oklahoma Bar Journal?  You got it.  The ‘new me’ bit.  “I could write something about how Oklahoma lags behind in independent interpretation of its state constitution,” I explained to the Oklahoma Bar Journal rep who was the source of my dean’s invitation, “particularly in regard to protections against unreasonable search and seizure.  It’s a topic about which I’ve written over the decades, and which I’m currently in the midst of reprising for NYU’s Brennan Center.”  Which is, naturally enough, true—one of my very first law review articles, published in 2006, was a fifty-state survey regarding state constitutional interpretation of Fourth Amendment analogs, and I’ve been happy to recently contribute to the Brennan Center’s State Court Report.

The newly Oklahoma-inclined me was chuffed to received kind replies.  From my associate dean—simply because she is one the world’s nicest people—there was this: “You are amazing.  Thank you.  Thank you.”  I of course realized then—as I realize now—that I am not amazing.  Still, it’s nice to hear otherwise from kind people.  From the Bar Journal was this: “What a fascinating subject!  And what a great line: ‘Once a monolith is fractured, more cracks are likely to follow.’  [Kindly quoting a bit I wrote for the Brennan Center.]  I think this would make an excellent topic for the Constitutional Law issue.  Thank you so much for your interest and willingness to contribute. … I look forward to working with you!”

That individual might not generally be as wonderful as my then-associate dean—few are—but, hey, newly-Oklahoma-inclined me appreciated her enthusiasm all the same.

And so I went to work.  And—wonderful plus!—the topic was more interesting than expected.  Oklahoma is one of only two states bifurcating its high courts along the civil/criminal line, and, when it comes to state constitutional search and seizure … Oklahoma’s two high courts disagree!  The Oklahoma Supreme Court interprets the state Fourth Amendment analog to give greater rights than the federal counterpart.  But the Oklahoma Court of Criminal Appeals interprets the state provision in lockstep with the federal.  Bizarre.  So, I completed and turned in my draft:

Attached should be the draft of my article.  It’s quite an interesting area given the split between the Oklahoma Supreme Court and the Court of Criminal Appeals.

I presume there is an editing process in which I get a redline?  Perhaps like you, I am very jealous of my writing, so I will want to review and ponder all changes—including because sometimes if change is beneficial a third construction is ideal.

Thanks for reaching out to the law school; I enjoyed writing this and appreciate the opportunity to have a small role in what is happening (or could happen) in Oklahoma.

Self-evidently, the newly-Oklahoma-inclined me remained pretty pleased about these developments.

I was less pleased, however, when the response was this:

The article will next be submitted to the Board of Editors of the bar journal for review and a vote.  At our next meeting (early January), the Board will either accept, reject, or accept subject to requested changes.

Now, sure, perhaps my ego is too large … but to have an invited contribution rejected by the state bar journal?!  Yikes.  That would be a career low.

Yet it happened.  And while that would be of interest only to me (and maybe my mom would feel a bit bad for me as well … well, no, she really wouldn’t), the reason should be a stunner for nearly everyone:

The board thought the article was interesting and of course well-written.  There was concern, however, about the tone/approach towards the Court of Criminal Appeals.  One of our editors will be contacting you shortly to discuss proposed revisions.

Wtf?!  My “tone/approach towards the Court”?!  Now, some people do say some awful stuff about courts and judges, and so one might understandably assume I must have done the same.  But far from it.  I’ll let the essay speak for itself in that regard.  No, the reason was more sinister—and, since this is a policy of Oklahoma’s mandatory bar/the Oklahoma Supreme Court—the reason strikes me as unconstitutional.  Here’s the follow-up from the Oklahoma Bar Journal when I complained and made clear that they could not print a censored version of my work:

The Oklahoma Bar Journal has a policy of not printing articles directly critical of the Courts in our state.  While the Board had hoped that you would be willing to eliminate those portions that were critical of the Court of Criminal Appeals so that the lawyers in the state could benefit from the article, we respect your choice.

Holy you-know-what, Batman!  A policy of “not printing articles directly critical of the Courts in our state”?!  And remember—this was for an issue dedicated to constitutional law!  Such an editorial policy is therefore as richly ironic as it is terrible idea.  Applied here, it seems explicit viewpoint discrimination in violation of the First Amendment.  (We have a mandatory state bar association in Oklahoma, some recent litigation regarding which can be found here.)  And, again, my essay isn’t directly critical of state courts, making the application of the policy doubly strange.  Besides, what’s the policy even mean?  As a friend asked, “Can one not write about an appellate reversal, because that is ‘directly critical’ of the judge below?”  So, lots of issues—but viewpoint discrimination is certainly the most significant.

All of which makes me curious … do other state bar journals similarly engage in viewpoint censorship?  I hope not, but I’d love to learn.  How uniquely poor are these Oklahoma powers-that-be?

Share your teaching materials with new crim teachers!

Remember when you were just starting out as a new criminal law / procedure professor and you had no idea what you were doing and would have relished the chance to review what other, more experienced professors were doing in their classes? And perhaps to "borrow" materials from those more experienced professors? And to do all of this without the inconvenience and social barriers involved in cold-emailing more senior academics in your new field?

(Or perhaps you are one of these new professors. If so, you, too, should read on.)

Well, now there is a digital resource that new criminal law/procedure professors can access, sponsored by the AALS Criminal Procedure and Criminal Law Sections, that will let them instantly peruse the teaching materials of (we hope) many other professors so these new teachers can quickly get their bearings and flatten the learning curve.

But this new resource DEPENDS ON YOUR GENEROSITY! It doesn't take all that long to collect teaching materials you're willing to share (for some it might just be a syllabus; others, we hope, will share practice problems, lecture notes, past exams, etc.) and send them to the AALS Crim Pro Section so we can include them in this digital repository. I hope that you will consider taking a few minutes of your time to do this; it will be a real service to junior scholars in our field.

And one more thing: please start spreading the word about this resource to any junior scholars and mentees you come across who might find it beneficial. We'll be going live soon!

Details to contribute can be found below.

--

Hi Everyone, Thanks very much to those of you who have already emailed me to explain your coursebook choice(s), shared your materials using the Dropbox file request below, or both.  For those who haven't yet, I'm sending this email to encourage you to please do so.  We're trying to build a helpful tool for all of us-although especially new faculty.  But this tool will be only as good as the participation of our community allows it to be.  (And I will say that I have gotten several emails from new faculty expressing their excitement about the repository.)  We plan to upload the first wave of materials we receive later this week, but it's looking a bit sparse right now.  As a reminder, here's what we would like you to do: 1.                  Please reply individually to me ([email protected]) explaining which coursebook (if any) you choose for each of your criminal justice-related courses and why you choose that book.  We are creating documents for each course in the repository that contains for each book the explanations of why the amazing teachers in this group use.  We think these documents will help other teachers, especially new teachers, decide which book and approach best suits their needs before diving more deeply into the repository.  (Casebook authors, this is a good opportunity to pitch your book, although we hope that those who haven't authored casebooks will contribute too.) 2.                  Please post materials using this Dropbox file request: www.dropbox.com/request/u345Veuxh6ZdNEwymEZF.  Feel free to include any notes or context you believe would be helpful to those reviewing your materials.  Please include your name when you're submitting using the File Request to keep those materials organized on the back end for us, and please upload your files in one or more folders rather than individually.  Please separate your materials for each criminal justice-related course that you teach.  (Uploading a big batch of materials with sub-folders works well and so will separate uploads with a folder of materials for each of your courses.)  To be clear, as we receive your materials, members of the Executive Committees will organize and upload them into the repository that the AALS is hosting.  Dropbox is just the temporary holding location.  We're using the File Request feature on Dropbox so that only Executive Committee members will be able to see what you submit. Lastly, please feel free to forward this email to colleagues who may not be on the Crim Law or Crim Pro section listservs so that they can participate too. Warmest regards, Russell Russell M. Gold Frank M. Bainbridge-Walter L. Mims Professor of Law The University of Alabama School of Law

Reply to Sender   View Thread

------------------------------------------- Original Message: Sent: 1/21/2025 1:36:00 PM From: Russell Gold Subject: Shared Teaching Materials for Criminal Justice Related Courses It was great to see many of you in San Francisco!  (I apologize in advance for the length of this email, but please do read to the bottom where we ask for your help.) As Justin Murray mentioned in San Francisco, the Criminal Law and Criminal Procedure Sections are excited to share with you an initiative aimed at supporting our colleagues in the legal academy by creating a digital repository to house syllabi, course materials, textbook recommendations, practice questions, and other teaching resources related to criminal law and procedure courses. The repository's purpose is twofold: Assist new faculty as they design courses for the first time. Provide experienced faculty with a wealth of ideas and resources to refresh and enhance their courses. We aim for these materials to be accessible only to other faculty members.  To that end, access to this repository will be limited to members of the Criminal Law and Criminal Procedure sections.  If you are mentoring people who want access to the materials, please encourage them to join one or both sections. For the repository to be the invaluable resource we envision, we need you're your help!  Please contribute materials for all of the criminal justice-related courses that you teach (including doctrinal courses, clinics, seminars, and externship seminars).  Materials to share might include: Syllabi Teaching notes Classroom slides Sample assignments, exams, or practice questions Classroom exercises Supplemental materials (podcasts, videos, articles, URLs for websites) If you are willing to contribute, here's what we would like you to do.  In the next two weeks: Please reply individually to Russell ([email protected]) explaining which coursebook (if any) you choose for each of your criminal justice-related courses and why you choose that book.  We plan to create a document for each course in the repository that contains for each book the explanations of why the amazing teachers in this group use.  We think this document will help other teachers, especially new teachers, decide which book and approach best suits their needs before diving more deeply into the repository. Please post materials using this Dropbox file request: www.dropbox.com/request/u345Veuxh6ZdNEwymEZF.  Feel free to include any notes or context you believe would be helpful to those reviewing your materials.  Please include your name when you're submitting using the File Request to keep those materials organized on the back end for us, and please upload your files in one or more folders rather than individually.  Please separate your materials for each criminal justice-related course that you teach.  (Uploading a big batch of materials with sub-folders works well and so will separate uploads with a folder of materials for each of your courses.)  To be clear, as we receive your materials, members of the Executive Committees will organize and upload them into the repository that the AALS is hosting.  Dropbox is just the temporary holding location.  We're using the File Request feature on Dropbox so that only Executive Committee members will be able to see what you submit. Lastly, if you have materials that you'd like to contribute but have any technical difficulties in so doing, please reach out to Russell individually ([email protected]). Warmest regards and many thanks, Russell Gold, Justin Murray, Melissa Redmon, Ben Levin, Evelyn Malavé, Maybell Romero, and Valena Beety

 

On Glossip and Oklahoma Criminal Justice

Well, the decision is in, and Glossip v. Oklahoma, No. 22-7466, doesn’t hold any punches.  The Court’s opinion (basically 5-3 in critical part, as Gorsuch sat this one out) reads like a ‘how to’ manual in unethical investigation and prosecution, from initial suspect interrogation (feeding the killer what the State wished to hear, instead of asking what he had to say), to pretrial ethics violations (failure to disclose known defense-favorable evidence), to trial ethics violations (communications with a sequestered witness in attempt to alter testimony and failure to correct State witness known perjury), to post-trial ethics violations (destruction of potentially defense-favorable evidence and shifting stories to better negate revelations).  It’s what happens when a State engages in a search for convictions, rather than a search for truth.  As a result, we can never know what happened on that January day in 1997.  That’s what results when police and prosecutors irretrievably taint an investigation and prosecution, and it is a result nobody—not the victim’s family, not the defendant, not the defendant’s family, and not any citizen of Oklahoma—should accept.

So much has already been written about the case, and the Court’s opinion is so comprehensive, that I won’t attempt to add much here.  But it is worth emphasizing how bad this one is: because the Court found a Napue violation (failure to correct known perjury), it didn’t even consider the more-commonly-problematic Brady claims.  In other words, this one was so bad that the Court didn’t need to even consider other, likely also independently meritorious claims.  As Justice Marshall explained for a unanimous Court in California v. Trombetta, 467 U.S. 479 (1984),

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

Quite right.  Glossip found “the most rudimentary of the access-to-evidence” constitutional violations, and so was able to stop there.  (Also, for those ‘in the weeds’ of criminal procedure, the Glossip Court made some important moves to make it easier for a defendant to win a new trial in the Mooney/Napue situation, sensibly pushing what was a sui generis rule of reasonable likelihood into the more favorable beyond a reasonable doubt standard typically used for constitutional trial error.)

So, where do we go from here, Oklahoma?  We ought to consider how the Oklahoma Court of Criminal Appeals could get this one so wrong, again and again, even as ever more damaging evidence came to light.  And, more generally, how do we learn from this?  How do we improve?  Given that the Glossip investigation and prosecution demonstrate massive failures, how do we not only, insofar as we are able, remedy those errors in this particular case, and then in all existing cases like it, but further enact safeguards to minimize the likelihood we will repeat such unacceptable practices in the future?

Finally, as to the Thomas/Alito/sometimes Barrett Glossip dissent?  I’m content to quote Justice Gorsuch, writing in Gamble v. United States, 587 U.S. 678 (2019): “Really?”  How could anyone have so low an estimation of what criminal justice—let alone capital-case criminal justice—ought to demand?

How About a Commentary for the Ohio State Journal of Criminal Law?

I want to take this opportunity to invite you to consider submissions to the Ohio State Journal of Criminal Law (OSJCL), in particular here to our Commentary section.  As many of you know, we publish high-quality symposia, book reviews, “Term Papers” that focus on a recent United States Supreme Court criminal justice opinions, as well as other articles. But our Commentary section is unique. For those of you who are not familiar with our Commentary essays, let me explain. First, Commentary essays are shorter than traditional articles: we accept only essays that are 10,000 words or less. Often Commentaries are as short as 5,000 words.

But what makes Commentaries special, beyond their comparative brevity, is that we invite essays that discuss topics that would not be considered by other law journals or that discuss topics in a unique manner. For example, Professors Carol and Jordan Steiker published a 2003 essay, “Abolition in Our Time,” which consisted of a hypothetical 2022 United States Supreme Court death penalty opinion that they predicted or hoped might represent the future of capital punishment 20 years thereafter. Another one of our Commentaries involved an author who reflected on his experiences serving on a jury in a criminal trial; still another author wrote about her experiences as a grand juror. In one of our early Commentaries, Professor Robert Batey wrote, “Minority Report and the Law of Attempt,” which reviewed the then-circulating science fiction movie and in which the author reflected on how the law might handle persons apprehended under the movie’s version of “precrime.”

This is not to say that a Commentary submission must be unique as in the examples above. The point is that we welcome all types of “shorter” essays.

The OSJCL is a high-quality, often-cited, criminal law journal. I hope you will consider submissions of any sort to us. Authors should submit their manuscripts to [email protected].