Recently in Criminal Procedure Category

Federal District Judge Amy St. Eve (ND Ill.), Illinois Circuit Judge Charles Burns, and Michael Zuckerman have this article with the above title in Duke Law & Technology Review.  Here is the abstract:

This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, we have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media. Our results support the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media.  We conclude with a set of recommended best practices for using a social-media instruction.
The introduction section (footnotes omitted) follows the break.
Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property.The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
Unusual lineup on this one.  Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.

White v. Woodall Argument

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The argument transcript for White v. Woodall is available.  In a post last week, I explained what I think is the most important aspect of the case, applying the AEDPA standard of 28 USC §2254(d) to a case where the habeas petitioner needs to extend rather than just apply existing case law to make his claim.

The argument spent less time on the AEDPA standard than I would have liked.  On page 31 the Chief Justice says, "No one's talked about the standard yet."  Then they talk about it.

No clear winner emerges from the argument.  If the underlying issue were before the Court on direct appeal, it actually would be a close call.  As I've said before, though, when the underlying issue is close, the AEDPA issue is easy.  At least it should be, if judges would apply §2254(d) the way it is written and the way it was intended.  Stay tuned.

Obstruction Sausage, Meet SCOTUS Grinder

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Kent noted yesterday that an exceptionally vile murderer, Joseph Paul Franklin, had been granted a stay of execution by a federal district judge in Missouri in order, so it was claimed, to allow the judge time to review Missouri's new execution drug protocol.  As Kent put it:

I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge.  It shouldn't be.  A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.

The Supreme Court should listen to Kent more often.  I'm delighted to say that it appears to have been listening last night.  It upheld the Eighth Circuit's overturning of the lower court's stay (there were two of them, actually).  The execution has now been carried out, as recounted in this Washington Post story.

For the reasons Kent suggested, the Court's action is potentially very important. Many states have adopted new (usually single-drug) protocols post-Baze.  Defense lawyers were licking their chops, ready to file boatloads of speculative claims about the supposedly excessive risk of severe pain that the new, "untested" protocols might bring about.  The Supreme Court's refusal to indulge yet more delay on account of such claims is, at the least, a hopeful sign that this obstructionist tactic will be stillborn.

[Editor's Note:  Orders are here and here.  No dissent noted.  Scalia recused.]

Miranda for Terror Suspects?

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Kent and I have blogged a number of times about the Administration's missteps in dealing with captured terror suspects and, in particular, whether and at what point they should be advised of Miranda rights  --  advice that is likely to bring to a halt whatever cooperation they might have been giving.

The Administration seems to have gone through fits and starts on this question, seemingly never able to reconcile (1) its ill-advised determination to view terrorism as a matter for standard civilian trials and the accompanying rules of domestic criminal procedure, with (2) the unwelcome but central fact that terrorism is the front line in a war, and captives we take are less criminals violating our law than enemies aiming to replace it.

A week ago today, I had the privilege of talking through this question with a large and eclectic audience at a Federalist Society event at Columbia Law School in Manhattan.  The conversation was not recorded, by my opening remarks are set forth after the break.

Defense Bar Shoots at Puppy, Misses

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One of our readers, notablogger, is a supervisory attorney at a big city prosecutor's office. One of her colleagues prosecuted a defendant who cruelly and ruthlessly, and over an extended period of time, exploited a mentally disabled man. The defendant betrayed the victim, wiped him out financially, and treated him as if he had no value as a human being. The story of the defendant's callousness is hard to believe, even for those of us who have been at the business a long time.  It's all set out in the Washington Supreme Court opinion filed today.

The victim has the functioning and vulnerabilities of an elementary school-age child. Accordingly, during his testimony, and at the prosecution's request, he was accompanied by a dog, which helped keep him less anxious and more composed than otherwise would have been possible.

The defendant's cruelty, however, persisted right into the trial, so an objection was made to the dog's presence  --  the defendant preferring, I guess, to effectively disable the victim from telling his story or, if nothing else, just to add to his misery while he struggled to get it out.

After conviction, the defendant continued complaining, right into the state's highest court, which, I am delighted to report, entered a unanimous judgment for the prosecution. Notablogger argued the case.  Judging from the court's excellent opinion, she did a spectacular job.

Hearty congratulations and thanks to her.  Her work will now give us all an unanswerable reply when the defense bar gets on its high horse about who is for, and who is against, compassion for the vulnerable.

The Truth Optional System

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Yahoo News carries the story of a fellow, Matthew Cordle, who made a widely circulated YouTube confession that he killed a man in a drunk driving collision. He said at the time that he took full responsibility and would plead guilty.


When he made his appearance today, no such luck.  He pleaded "not guilty," notwithstanding the fact of his (extremely) public confession.  So what gives?

His attorneys told ABC News that it's a common maneuver to get the legal ball rolling, and that they planned on changing the plea to guilty immediately....Judge Lynch said that Cordle's attorneys are trying to game the system. Under Ohio law, entering a guilty plea locks in the judge -- in this case Lynch. She said that she believes Cordle's team got spooked after she told them she didn't know how she'd sentence Cordle, who faces anywhere from two to eight and a half years in prison.

Here's the explanation:

ABC News Chief Legal Affairs Anchor Dan Abrams said that these factors can all make a difference in sentencing.  "It seems pretty clear he's going to plead guilty," Abrams said. "Once you commit to pleading guilty, there are only one a few questions left: What's going to be the sentence? And who determines that? The judge -- and which judge you get -- can make a big difference."

The Kentucky capital case of White v. Woodall, No. 12-794 has apparently been relisted yet again. The case involves the defendant's claim that he was entitled, in the penalty phase, to a jury instruction not to draw adverse inferences from his failure to testify.  See prior post from April 15.

Since the April post, the case has been on the Supreme Court's conference list seven more times without action by the Court.  That often (but not always) means a summary reversal is being prepared but the Court is having difficulty coming to agreement on the opinion.
The US Supreme Court has reversed the decision of the Eleventh Circuit in United States v. Davila, No. 12-167. The lower court held that the judge's participation in plea bargaining voided the plea.  The Supreme Court found no prejudice.

Other cases decided today are civil, including the much-awaited gene patenting case.  Isolated, naturally occurring genes are not patentable.

No Quick and Dirty Deals

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Understanding that their client faces the realistic possibility of execution, Dzhokhar Tsarnaev's lawyers, now including death penalty expert Judy Clarke, are reported by NBC News to have hustled into discussions with the government to take capital punishment off the table in exchange for Tsarnaev's cooperation.

I was a federal prosecutor for a long time.  I was also, at one point, a member of White House Counsel's Office concerned, as everyone in the Office is, with national security.  I would not even consider this "deal."

First, it's not at all clear that Mr. Nicey has anything worthwhile to tell us.  The defense story thus far is that he's nothing but the last-minute, teenage tag-along to his older brother, who did such planning as there was.  Whether that's true or not, and I have no idea, there is not a single reason in the public domain to believe that Tsarnaev ever had actionable information, and still less information that hasn't become stale.

Second, so far as is known, we have not come close to exhausting other sources of information  --  his friends, classmates, his brother's wife, his uncles, his computer, his correspondence, credit card statements, school records, Facebook  entries, and a great deal more.  Why give up something of value for information (if there is any) you can very likely get from alternative sources?

Third, with any known or even rumored exigency having passed some time ago, rushing into a deal is hardly essential (and it will get less essential as time goes by). Thus, if a deal were ever to be considered, the time to do it would be when the government is in a stronger position  --  i.e., at the minimum, when the government has finished what is certain to be a powerful case at trial and little Dzhokar has to sit there waiting to see if he gets a death verdict.  That will focus his attention much more directly than the off-in-the-distance threat he sees now.

Defense lawyers ceaselessly complain that plea bargaining is rigged in favor of the government.  Now is the time to give them their answer:   In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do.
Mike Rogers, Chairman of the House Intelligence Committee, has some questions for Eric Holder about how it came to pass that a Magistrate Judge, with an Assistant US Attorney in tow (or was it the other way around?) manages to show up in Dzhokhar Tsarnaev's hospital room to make sure he lawyers up, and thus clams up, in the middle of what had been a productive FBI interrogation about Dzhokhar's imminent terrorist plans  --  plans that we now know included a trip to Times Square to continue the fun.

Chairman Rogers' letter reads, in part:

I would like more information as to who determined that the proceedings [in a hospital involving the magistrate judge who Mirandized Rogers] would occur at that time and place while [FBI] questioning was still ongoing. I have received information suggesting that the Magistrate Judge may have appeared sua sponte to conduct the proceeding in a way that may have not been fully coordinated with the intelligence needs of the FBI. My understanding is that the normal practice places the duty to take the defendant to court (and accordingly discretion as to timing consistent with the rules) on law enforcement, and not the court.
Up to now, I have not heard anyone ask how, exactly, a magistrate judge and an Assistant US Attorney happened to wind up in the Boston bomber's hospital room to conduct an initial appearance hearing, and to do so before the pre-Miranda interrogation was anything close to competed.

Paul Mirengoff at Powerline is the first to show some curiosity:

[A]re judges supposed to read suspects their Miranda rights while they are in police custody? I wouldn't have thought so, and not just because I haven't seen it done on TV. As Bill Otis reminds us, Miranda restricts the government's ability to use evidence collected absent the warning. But it's the government's call as to whether it wants to run the risk of having evidence excluded in order to obtain potentially valuable evidence from a suspect. 


I can't help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn't it the prosecutor who brought the judge to Tsarnaev's hospital room in the first place? And isn't it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the highest level of the Justice Department? Line prosecutors don't make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

Bingo.    As Paul concludes:

The end of the FBI's ability to obtain information from Tsarnaev is only the latest consequence of the left's exaltation of undue process over considerations of national security and public safety. For congressional lawmakers who are demanding an explanation for the handling of the Tsarnaev interrogat[ion], there it is.
I noted yesterday that the vaunted "public safety exception" to Miranda's warning requirements went down the drain when a federal magistrate judge told the surviving Boston bomber, in his hospital room, that he had the right to remain silent.  This was before the interrogation team had finished its questioning, and as he was beginning to provide important information.  He immediately stopped talking, so now we'll never know what else he might have been willing to divulge.

One of our readers has taken me to task for ignoring Fed. R. Crim. P. 5(d)(1).  I explained that the Rule creates a right not to make a statement specifically during the initial appearance, not a general right to silence.

Apparently I am not the only one who was taken aback at how carelessly the interrogation was halted by the magistrate judge (possibly with DOJ's acquiescence, although this is unclear).  Rudy Giuliani, a former Deputy Attorney General, and a man thought to know something about dealing with terror attacks, shares my consternation.  This report carries the story:

Former New York Mayor Rudy Giuliani said it was "ridiculous" that a judge stopped the questioning while the 19-year-old was talking to FBI agents.

And House Intelligence Committee Chairman Mike Rogers called the decision to intervene a "God-awful policy."

Lawmakers are demanding to know why Tsarnaev, who has confessed to being involved in the planting of two bombs near the Boston Marathon finish line, was read his Miranda rights in the middle of his interrogation.

"That's just mind-boggling," Giuliani said in an interview with Fox News' Greta Van Susteren.

"This guy is kind of telling you about how he's coming to New York and do a bombing, a judge walks in and we cut off the questioning?" Giuliani said. "What are we, crazy?"

Great question.  And how much did the higher-up's at DOJ know about this? 

So Much for the Public Safety Exception

Kent and I have noted, here and here, that Miranda does not create a freestanding right to be warned before custodial questioning.  Miranda is an admissibility case; if a defendant's custodial statement is to be admitted, it must be preceded by the warnings.

The theory of the exception to Miranda created in Quarles was that the authorities may legitimately decline to, in effect, invite the suspect to clam up about information immediately vital to public safety.  They may delay the warnings until after (an undefined) reasonable time in which they will have had the chance to obtain such information.

Someone needs to tell this to federal magistrate judge Marianne Bowler, who decided on her own to give the warnings before the interrogators were finished their job.

The surviving bomber of course immediately clammed up when the warnings were given.  Who knows what information we will now never get?
Kent and I have posted on the law governing terrorist interrogation.  The rules are unsatisfactory, largely because neither Miranda nor the limited exception to Miranda explained in Quarles was designed for the world of terrorist warfare.

Another sensible explanation is set forth in this article in Atlantic magazine.  Its penultimate paragraph is a good sample:

[I]n a case such as this one, where it seems likely both that the government will have overwhelming evidence to convict (without relying on any post-arrest statements) and that Tsarnaev may be in possession of valuable information that implicates national security, the rationale behind the government's choice emerges: Even if the public-safety exception is determined to have been wrongfully invoked, this would not threaten the government's case in a meaningful way. One may certainly contest whether the Court's shifting on Miranda is correct or whether the government's choice not to Mirandize Tsarnaev is desirable as a policy matter. Nor have the media been wrong to question the government's broad interpretation of the public-safety exception. But it is misleading to paint the decision not to Mirandize as trampling Tsarnaev's constitutional rights as an American citizen.

In fact, and as I expect to explain in a later post, Eric Holder is on shaky ground in thinking that the Quarles exception will carry him as far as he seems to think it will.  It might or it might not.  What is actually needed is for the Court to revisit Miranda itself, which was incorrect the day it was decided and is increasingly a relic of a different time in any event.  But that is beyond the scope of my present ambition.

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