CrimProf Blog

"The Danger in Disrespecting Jurors"

Andrew Guthrie Ferguson has this guest post at ACSBlog. In part:

For the ninety-fifth time, a duly constituted local Alabama jury spared the life of a defendant facing the death penalty. In Woodward v. Alabama, the jurors voted 8-4 to sentence Mario Dion Woodward to life in prison without the possibility of parole. A single judge overrode the decision and sentenced Mr. Woodward to death. 

. . .

However the Supreme Court ultimately decides the constitutional issue, I see a broader problem focusing not on the accused but on the citizen. Simply stated, a judicial override process devalues civic participation and threatens to undermine the legitimacy of the jury system. By disrespecting the jury verdict, the judge is disrespecting the juror’s role in the criminal justice system.

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

• U.S. v. Apel: Whether 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement.

"Should reform advocates welcome latest DEA raids of hinky medical marijuana facilities in Colorado?"

Doug Berman has this post at Sentencing Law & Policy. In part:

I think advocates for legalizing and regulating marijuana ought generally be pleased when the feds go after the most shady operators of marijuana facilities. I suspect businesses that follow the law in any industry can and do generally hope that those competitors cutting corners will get in trouble for regulatory failings. And, with respect to state-legalized marijuana industries, even advocate for a regulatory scheme instead of prohibition may still find it useful and beneficial for there to be the ever-present threat of the feds bringing a severe criminal justice hammer down on those businesses getting the most out of line.

First on the Export of U.S. Antitrust Remedies

Harry First (New York University School of Law) has posted Your Money and Your Life: The Export of U.S. Antitrust Remedies (Competition Law and Development (D. Daniel Sokol, Thomas K. Cheng, and Ioannis Lianos, eds.) (Stanford Univ. Press 2013)) on SSRN. Here is the abstract:

Substantive antitrust law has spread around the world. This has been a rather amazing turn of events in our post-cold war era, with more than 100 jurisdictions now claiming some form of antitrust legislation. Even though there is no global treaty framework for antitrust (similar, for example, to the TRIPs agreement for intellectual property), there does now appear to be broad international consensus on the basic principles of competition policy.

Substantive antitrust law may be one of the United States’ more popular legal exports, but how does the rest of the world view two very important remedy aspects of the U.S. antitrust enforcement system, private treble-damages suits for antitrust violations and incarceration of antitrust violators? As is well known, in the United States we take your money and your life. Conventional wisdom is that other countries do not.

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Kreit on the Duty to Seek Justice in Medical Marijuana Prosecutions

Alex Kreit (Thomas Jefferson School of Law) has posted Reflections on Medical Marijuana Prosecutions and the Duty to Seek Justice (Denver University Law Review, Vol. 89, No. 4, p. 1027, 2012) on SSRN. Here is the abstract:

Whatever else may be said of state medical marijuana laws, few would disagree that they have generated a wide array of difficult legal issues. During the sixteen years since California passed the first modern state medical marijuana law, the Supreme Court alone has reviewed two medical marijuana cases. Federal trial and circuit courts have considered a variety of issues, including whether sick and dying patients have a fundamental right to medical marijuana; whether physicians have a First Amendment right to recommend medical marijuana to patients; and whether a provision of the Controlled Substances Act (CSA) designed to provide immunity to state and local undercover officers also shields a medical marijuana grower deputized by the City of Oakland. State courts have faced an even more varied set of legal questions, with cases that present issues specific to state medical marijuana laws, as well as cases that call on courts to address the relationship between federal and state marijuana laws.

In the midst of these disputes, the application of rules of professional conduct to attorneys who practice medical marijuana law has received comparably little attention.

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Thomas on Substantive Habeas

Kimberly Thomas (University of Michigan at Ann Arbor - University of Michigan Law School) has posted Substantive Habeas (American University Law Review, Vol. 63, 2014, Forthcoming) on SSRN. Here is the abstract:

Substantive Habeas identifies the U.S. Supreme Court’s recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the U.S. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decisionmaking until recently. 

In the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas.

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Schloenhardt & Lynch on A Case of Sexual Slavery

Andreas Schloenhardt and Laura-Rose Lynch (The University of Queensland - T.C. Beirne School of Law and The University of Queensland - T.C. Beirne School of Law) have posted McIvor and Tanuchit: A Truly 'Heinous' Case of Sexual Slavery ((2012) 35 (1) University of New South Wales Law Journal 177-202) on SSRN. Here is the abstract:

The proceedings against Mr. Trevor McIvor and Ms. Kanakporn Tanuchit are among the very small number of reported cases of trafficking in persons in Australia. It also marks the first convictions for slavery offences in New South Wales. In June 2006, five Thai women were discovered in a secret room in the basement of a licensed brothel owned by Mr. McIvor and Ms. Tanuchit. In December 2010, the pair was convicted of five counts of possessing a slave and five counts of exercising over a slave powers attaching to the right of ownership, contrary to section 270.3(1)(a) of the Criminal Code Act 1995 (Cth) schedule 1 (‘Criminal Code’). When questioned about the crime, the Crown Prosecutor for the case, Mr. Bruce Levet, described the actions of the couple as ‘heinous’.

Barnard on Causes of Spectacular Frauds

Jayne W. Barnard (William & Mary Law School) has posted Shirking, Opportunism, Self-Delusion and More: The Agency Problem Lives On (Wake Forest Law Review, Vol. 48, 2013) on SSRN. Here is the abstract:

What factors explain the behaviors of corporate leaders who engage in spectacular frauds? Is it greed? Is it power? Are these leaders, as some critics allege, simply psychopaths? Or is something else going on? In this Essay created for a symposium on the “agency problem,” Professor Barnard explores the greed, power, and psychopathy theories. She also suggests that a hormonal phenomenon – an overabundance of testosterone – may explain these men’s behavior. In many animal populations, success in competition leads to an elevation of testosterone. Repeated successes – accompanied by increasing levels of testosterone – often lead to rash, ill-considered, and dangerously risky behaviors. Animal biologists call this progression “the winner effect.” Barnard suggests that a similar progression may be seen in human competitors, both in athletic environments (think Lance Armstrong) and in business environments (think Jeff Skilling, Richard Scrushy, and Rajat Gupta). She concludes that some agency problems may be physiologically driven.

Polando on Lafler

Graham Polando (Manchester University) has posted Being Honest About Chance: Mitigating Lafler v. Cooper's Costs (3 HLRe 61) on SSRN. Here is the abstract:

A criminal defendant gives up more than constitutional rights when pleading guilty: he foregoes an opportunity for acquittal. That acquittal may be improbable, factually unjustified, or legally indefensible, but once realized, is forever immune from review. The Supreme Court in Lafler v. Cooper, however, recognized only the defendant’s constitutional concessions. Their remedy for when the plea process goes wrong, then, was simple: restore the procedural rights the Defendant had previously waived. But how to account for the acquittal chance the Defendant already redeemed? By not recognizing the amount of chance inherent in a jury trial, the Court may have changed plea offers from a means to resolve litigation to a handy backup when that litigation goes wrong.

Sankoff on Provocation

Peter Sankoff (University of Alberta - Faculty of Law) has posted R. v. Cairney: Predictable Responses and the Shrinking Defence of Provocation on SSRN. Here is the abstract:

This commentary focuses on the Supreme Court of Canada's latest decision on provocation, the Cairney judgment from Alberta. In it, I critique the majority’s approach to the “suddenness” element in provocation, suggesting that it was: (1) questionable in light of the statutory language, jurisprudence and historical rationale of the defence; (2) troublesome given the facts of the case; (3) likely to have undesirable ramifications in future for a host of actors who might otherwise claim provocation; and (4) wrongly driven, at least in part, by a mistaken desire to assess provocation as a justification based defence, rather than an excuse.

Shniderman on Neutralizing Negative Pretrial Publicity

Adam B. Shniderman (University of California, Irvine - Department of Criminology, Law and Society) has posted Neutralizing Negative Pretrial Publicity: A Multi-Part Strategy (The Jury Expert, Vol. 25, No. 5, November 2013) on SSRN. Here is the abstract:

Cable news, the internet, twenty-four hour news cycles, social media websites including Facebook and Twitter, newspapers, expert and not-so-expert television commentators, interviews of and media releases by participants and observers -- some of whom may have agendas which extend beyond the case at hand -- have significantly increased the amount of information, speculation, and theories made available to the public, and thus potential jurors, about pending cases. This is all the more true with high profile cases. Consultants and lawyers have long intuitively known what psychological research shows -- pretrial publicity can have significant impact on jury verdicts. 

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"Corrupt Massachusetts lab analyst gets (significant? inadequate?) state prison term for misdeeds"

Doug Berman has this post at Sentencing Law & Policy. From the excerpted newspaper article:

By all accounts, the scandal at the Hinton laboratory in Jamaica Plain is the worst to hit the state’s criminal justice system in recent memory, and is still deepening. Officials have determined that Dookhan was involved in more than 40,000 cases at the lab from 2003-2012, possibly tainting the integrity of the evidence in those cases.

Defendants have asked that their convictions be tossed, or that they be released from prison as they seek new trials. Public safety officials feared their release would create a crime wave. So far, the state has spent $8.5 million reviewing the drug cases and holding special hearings for defendants, and officials have budgeted an additional $8.6 million, expecting the costs to increase.

"N.S.A. Report Outlined Goals for More Power"

From The New York Times:

Officials at the National Security Agency, intent on maintaining its dominance in intelligence collection, pledged last year to push to expand its surveillance powers, according to a top-secret strategy document.

In a February 2012 paper laying out the four-year strategy for the N.S.A.’s signals intelligence operations, which include the agency’s eavesdropping and communications data collection around the world, agency officials set an objective to “aggressively pursue legal authorities and a policy framework mapped more fully to the information age.”

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	409	In God's Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities  Michal Gilad,  University of Pennsylvania Law School,  Date posted to database: October 29, 2013
2	240	Stupid Juror Questions?  Steven Lubet, Kevin Chang,  Northwestern University - School of Law, Unaffiliated Authors - Independent,  Date posted to database: October 5, 2013
3	214	Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning  John Monahan, Jennifer L. Skeem,  University of Virginia School of Law, University of California, Irvine,  Date posted to database: September 27, 2013
4	210	Moving Money: International Financial Flows, Taxes, & Money Laundering  Andrew P. Morriss, Richard K. Gordon,  Case Western Reserve University School of Law, University of Alabama School of Law,  Date posted to database: November 4, 2013
5	196	License, Registration, Cheek Swab: DNA Testing and the Divided Court  Erin Murphy,  New York University School of Law,  Date posted to database: September 29, 2013
6	157	Criminalizing Revenge Porn: A Quick Guide  Mary Anne Franks,  University of Miami School of Law,  Date posted to database: October 12, 2013 [9th last week]
7	157	The Mens Rea of Accomplice Liability: Supporting Intentions  Sherif Girgis,  Princeton University Department of Philosophy,  Date posted to database: November 4, 2013 [new to top ten]
8	151	Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience  Dennis Patterson, Michael S. Pardo,  University of Alabama School of Law, European University Institute,  Date posted to database: September 27, 2013 [7th last week]
9	149	(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform  R. Michael Cassidy,  Boston College Law School,  Date posted to database: September 19, 2013 [6th last week]
10	115	Informal Collateral Consequences  Wayne A. Logan,  Florida State University - College of Law,  Date posted to database: November 4, 2013 [new to top ten]

"O.C. Crime Lab finds more errors in DUI testing"

From the L.A. Times:

The new discoveries come just weeks after the lab acknowledged inaccurate blood-alcohol test results in 2,200 driving-under-the-influence cases. Prosecutors responded by sending letters to drivers charged with DUIs, including 900 who already had been convicted.

. . .

Houlihan said the latest problem was uncovered while conducting a five-year audit of the lab's work in the aftermath of the initial error. Auditors, he said, discovered that a second machine at the lab had a calibration error that could produce blood-alcohol readings that were off by .001 of a percentage point. The faulty reading occurred between December 2012 and May 2013.

Hoeffel on the Jurisprudence of Death and Youth

Janet C. Hoeffel (Tulane University - Law School) has posted The Jurisprudence of Death and Youth: Now the Twain Should Meet (Tulane Public Law Research Paper No. 13-21, 46 Texas Tech Law Review __ , 2013, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama. This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings. While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.

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Stern on Law, Literature, and Criminal Law

Simon Stern (University of Toronto - Faculty of Law) has posted Law & Literature (As an Approach to Criminal Law) (Forthcoming in Markus Dubber & Tatjana Hörnle, eds., The Oxford Handbook of Criminal Law (Oxford UP 2014)) on SSRN. Here is the abstract:

This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell's "A Jury of Her Peers" and Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.

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Archibald, Jull & Roach on Corporate Criminal Liability

Todd Archibald , Ken Jull and Kent Roach (Osgoode Hall Law School - York University , Baker & McKenzie and University of Toronto - Faculty of Law) have posted Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer (2013 50(3) Criminal Law Quarterly) on SSRN. Here is the abstract:

The authors of this article argue that the Canadian model for corporate criminal liability is one that ought to be studied by other jurisdictions as an efficient model that strikes the right balance between the previous "directing mind" doctrine and the vicarious liability model that is utilized in the United States. This article reviews the recent cases of Global Fuels and Metron as case studies of how this model works.

Global Fuels was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. In the context of criminal negligence, the Ontario Court of Appeal in the case of Metron Construction has affirmed that the actions of an independent agent who manages an important aspect of a corporations' activities and qualifies as a senior officer may result in a conviction of that corporation for criminal negligence causing death where the agent demonstrates a marked and substantial departure from the standard that could be expected of a reasonably prudent person.

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Seamon on Implied Consent after McNeely

Richard Henry Seamon (University of Idaho - College of Law) has posted The U.S. Supreme Court Sidetracks Idaho's Implied Consent Law on SSRN. Here is the abstract:

This paper examines a State's "implied consent" law after the U.S. Supreme Court's decision in McNeely v. Missouri (2013). McNeely held that the metabolization of alcohol does not “presen[t] a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Current case law in Idaho allows warrantless, nonconsensual ("forced") blood testing of suspected drunk drivers on an alternative ground: as "consent searches." The theory is that, by operation of Idaho's implied consent law, a driver impliedly consents to blood testing by using Idaho's roads and that, once given, this consent cannot be revoked when a driver is stopped on reasonable suspicion of drunk driving and asked to submit to blood testing. This implied-irrevocable-consent theory results in the oxymoronic result of upholding admittedly "involuntary" blood testing as consent searches. This paper argues that the irrevocable-implied-consent theory conflicts with U.S. Supreme Court case law. It also argues, however, that State can (as Idaho does) constitutionally encourage suspected drunk drivers to submit to blood tests by imposing administrative penalties -- including license suspension for one year -- for refusing to submit to a test. The paper predicts the Court will uphold such administrative penalties under a Fourth Amendment "reasonableness" analysis like that used by the Court to uphold searches of probationers and parolees.

"Clear Names for the Last ‘Scottsboro Boys’"

From The New York Times:

ATLANTA — More than 80 years after they were falsely accused and wrongly convicted in the rapes of a pair of white women in north Alabama, three black men received posthumous pardons on Thursday, essentially absolving the last of the “Scottsboro Boys” of criminal misconduct and closing one of the most notorious chapters of the South’s racial history.

. . .

Thursday’s vote brought to an end to a case that yielded two landmark Supreme Court opinions — one about theinclusion of blacks on juries and another about the need foradequate legal representation at trial — but continued to hang over Alabama as an enduring mark of its tainted past.