Recently in Criminal Procedure Category

The key to understanding the correct outcome in Lafler v. Cooper rests, in my view, on understanding the difference between an outcome secured by a windfall versus one secured fair-and-square.

I accept that a defendant has the right to effective assistance of counsel at the plea bargaining stage. Bargaining is now the principal means through which charges are resolved, and thus ought fairly to be considered a stage of the prosecution covered by the text of the Sixth Amendment.  The question is: Who pays the price if the defendant does not get effective assistance at that stage, and the matter comes up only after the public has paid the bill for a trial whose conduct and outcome are perfectly legal?

Trials are the method designated by the text of the Constitution for the resolution of criminal charges. Once the defendant gets such a resolution, he has received the principal item guaranteed him. It's difficult to understand why a person who gets a legal sentence after a fair trial has a claim enforceable against the government. In any other context, it's unheard of to punish one party for the fact that the opposing party got bad advice from his own lawyer about how to negotiate.

A guilty plea waives most of the rights that go with a trial -- trial by jury, proof beyond a reasonable doubt, privilege against self-incrimination, etc.  So of course for such a grave decision to be valid it must be knowing and voluntary.

What makes a plea involuntary?  Well, the Godfather method of "either your signature or your brains are going to be on that paper" would do it.  But voluntariness has been watered down below that.  The "knowing" part includes a knowledge of what the defendant is pleading to and the sentence (or range of possible sentences) that will follow.  Last year the Court added immigration consequences as well in Padilla v. Kentucky.  This inquiry is wrapped up with the right to effective counsel, as counsel is supposed to explain all this before the defendant pleads.

But is a plea unknowing or involuntary when the defendant knows everything the Court has said he is supposed to know and voluntarily chooses to accept the deal, but unknown to him he could have gotten a better deal earlier under a now-expired offer that his lawyer failed to tell him about?  That was the question argued before the US Supreme Court today in Missouri v. Frye.

Last week, Bill had a post on the book by the late William Stuntz titled "The Collapse of the American Judicial System."  The book had been reviewed by Justice Stevens.

Today, Paul Cassell has a review of the book in the WSJ.  From Cassell's review, the book may be better than one would infer from its unfortunate title.

Perhaps aware that "collapse" in the book's title requires justification, Mr. Stuntz begins by reviewing some statistics. As he shows, in the 1950s, 1960s and early 1970s, amid the largest crime wave in American history, the U.S. prison population declined. Imprisonment rates plummeted to some of the lowest ever seen in the modern Western world. High-crime neighborhoods, as Mr. Stuntz puts it, were "abandoned to their fate."

*                         *                      *

Mr. Stuntz readily acknowledges what many legal scholars do not: America's current lock-'em-up philosophy has dramatically helped to reduce urban crime.... Even so, Mr. Stuntz counts these declines as a pyrrhic victory, given that violence per capita in the U.S. today remains significantly higher than in 1950.

The U.S. Supreme Court this morning denied a stay pending certiorari to a person resisting a grand jury subpoena for records regarding his Swiss bank accounts.  The case raises issues regarding the Fifth Amendment Self-Incrimination Clause, the required records doctrine, and the Bank Secrecy Act of 1970.  The investigatee, identified only as M.H.,  is represented by Erwin Chemerinsky.  The introductory portion of the Ninth Circuit opinion follows the jump.

A Massachusetts prosecutor gets his case back to do over again for trying to do amateur probability analysis in his closing argument.  Joe Palazzolo has this post at WSJ Law Blog.  Kyle Chesney has this story for State House News Service.  We can't link directly to the opinion due to Massachusetts' quirky opinion system.  The case is Commonwealth v. Ferreira, SJC-10902.  It is under "Slip Opinions" on this page for the time being.  Later, you will need to search the archives for it.

Q:  What's even better than a suppression motion?

A:  Offing the government's star witness.  That way, you don't have to worry about an appeal.

The feds have indicted a prominent New Jersey defense lawyer, Paul Bergrin, for murdering a government witness in a case he was defending, a fellow named Kemo McCray.  I have no personal knowledge of the case, and the judgment about Bergrin's guilt vel non will, obviously, have to await a jury's consideration.  But New York magazine has a fascinating article about it.  For example, these two paragraphs:

" 'No witness, no case'--that was Paul's motto," said one attorney [who knew him]. "There was this guy with a tattoo of the scales of justice on his back. Below the scales was the quote, 'No witness, no case--Paul Bergrin.' When your customers are all criminals, what's better advertising than a prison tattoo?"

Everyone had his Paul Bergrin ­story--how he started off with one client, then switched to another defendant in the same case, got the second guy to flip against the first, and kept the money from both. There were tales of how Bergrin planned to open a $30 million gambling casino in the Costa Rican cloud forest. And of course, there was the whorehouse deal. Bergrin had taken control of one of Manhattan's ritziest escort services and started bringing a steady stream of cops, lawyers, and even a prison official to the brothel's Worth Street headquarters, where the samples were free.

The trial wll be fascinatng to follow, if the government can persuade anyone to testify.

 

A:  Because there's too much of it and it's too complex.

The purpose of criminal procedure is to allow the tribunal to discover the truth about the defendant's charged conduct.  In the huge majority of cases, the basic question is simple:  Did he do it or not? 

Of course it's not quite that simple.  The court's factual determination has to offer the accused essential fair play.  Thus, as everyone agrees, he needs to be apprised of the charges against him, be given the opportunity to select an unbiased jury and confront and cross-examine his accuser, and be allowed to call witnesses in his defense.  He has the right to a lawyer and to obtain exculpatory information in the government's possession.  He has the right to a public trial.  He can't be forced to testify against himself (even though he's virtually always the person who knows the most about the crime).  His guilt must be determined beyond a reasonable doubt.  If he probably did it, that's not good enough.  If there's an erroneous acquittal, tough luck for the government.

That is not an inconsiderable list, and it's not a complete one either  --  I'm sure I've missed more than a few things.  But you get the point.  The basics of fair play are not that hard to figure out or put down on a piece of paper.

So why is my book of the Federal Rules of Criminal Procedure two inches thick with over 1000 pages of fine print?  Why does it take months or (more commonly) years to litigate a felony indictment?  Why have the burdens of litigation come to the point that ninety percent of cases are disposed of by the dumbed-down charges that find their way into plea bargains?

Principally because, in the quest for unerring justice, we have devised a system so larded with complexity that it's increasingly incapable of delivering basic justice. 

Jury nullification is a bad idea because law should be made under established and visible procedures and in legislatures accountable to the electorate, not ad hoc by micro-legislatures deliberating in secret and accountable to no one.  The latter, in slightly different and earlier forms, had a pretty well known name:  Vigilantism. 

Today, however, I ran across another reason to oppose jury nullification.

The Supreme Court's decision the term before last in Berghuis v. Thompkins has caused the Second Circuit to reverse itself and admit an uncoerced statement over a Miranda/Edwards objection.

Basil Katz has this report for Reuters.  CJLF's brief in Thompkins is here.

Bob Egelko reports in the SF Chron:

Jurors in California will soon be reminded not to conduct online research during the trial, and to resist the temptation to tweet their friends about how boring the testimony is or how guilty the defendant looks.

Gov. Jerry Brown signed legislation Friday requiring trial judges to tell jurors that existing bans on conducting their own research about the case, or talking to outsiders about it, applies to electronic and wireless communication. Violations by jury members will be punishable by up to six months in jail for criminal contempt.

AB141 by Assemblyman Felipe Fuentes, D-Los Angeles, effective next year, was prompted by numerous reports around the country of jurors' using cell phones and other devices to sidestep judges' warnings against outside research or contacts.

AP reports:

The 9th U.S. Circuit Court of Appeals has thrown out the death penalty of Joseph Edward Duncan III, saying he should have been given a competency hearing before he was allowed to waive his appeal.

The appellate court handed down the ruling Monday, ordering U.S. District Court Judge Edward Lodge to hold a retrospective competency hearing for Duncan.

Duncan was sentenced to die in 2008 for kidnapping, torturing and murdering a 9-year-old Coeur d'Alene boy in 2005. Prosecutors said Duncan snatched Dylan Groene and his 8-year-old sister from their northern Idaho home after killing their older brother, mother and mother's fiance. Duncan kept the children at a remote Montana campsite for weeks before killing Dylan and returning with Dylan's sister to Coeur d'Alene, where he was arrested.

"Thrown out" is not correct.  USCA9 did not reverse the sentence.  They sent the case back for a new competency hearing.  Opinion is here.  The trial judge had already held extensive competency proceedings when Duncan wanted to represent himself, so the notion that this has to be done all over again when he wants to waive appeal is a bit odd.

Should the prosecution seek further review of this decision or just go ahead with the hearing so the trial judge can find Duncan competent again?

Update:  Rebecca Boone of AP has a corrected story here.

I reported a few days ago about a bus crash that killed four passengers.  Driver fatigue was apparently the principal cause.  What made the story relevant for this site is that the bus company's safety record can fairly be described as criminally negligent, yet nothing had been done:   The tour company had been involved in several crashes in less than 20 months, and had been cited 46 times for allowing fatigued drivers to take the wheel, but the fleet was still on the road.

It now comes out that the Department of Transportation was, it claims, about to shut the company down, but gave it extra time to appeal its "unsatisfactory" safety rating:

A timeline released Wednesday by the department indicates that without the extension Sky Express of Charlotte, N.C., would have been shut down before the crash that killed four passengers and injured dozens of other people****

According to the timeline, Sky Express' authority to operate would have been revoked last Saturday. The department gave the company an extra 10 days to appeal.  Since the fatal crash, the bus company has been shut down...Federal records show Tuesday's fatal Virginia crash was the fifth highway accident involving the Sky Express bus company since last July.

The fifth accident since last July?  And the company was still operating?  And given extra time to appeal?

Time and again, we have seen in the context of the death penalty the travesty of drawn-out appeals, almost all of them of the run-the-clock variety.  We now see, in a different but still lethal context, the consequences when an hypnotic obsession with "due process" overrides just results.

It's time  --  past time  --  to change our priorities and get moving.  

 

A couple of weeks ago, I wrote that Congress should take a hand in revising Miranda rules to allow extended interrogation of terror suspects without Miranda warnings.  Simply changing Miranda's requirements by DOJ fiat would arrogate excess power to the executive branch, and is almost surely illegal in light of Dickerson v. United States.  In Dickerson, the Court held that since its own improvised Miranda rule was "rooted" in the Constitution, the elected branches had no authority to modify it.  Only the Court could modify it  --  as it had done, for example, in New York v. Quarles, 467 U.S. 649 (1984).

The Washington Post today editorializes that there should indeed be a relaxation of Miranda for terror interrogations; that the elected branches should compose the new rules; and, wisely, that those rules  should "allow a suspect to be questioned for a matter of days, rather than hours."  The Post adds that "this added measure of flexibility would come with a requirement that a federal judge be informed that the suspect was being questioned to ensure that the more malleable standards were not being abused."

This seems like a mostly sound proposal on its merits.  The problem is that it overlooks Dickerson, which would have to be overruled or significantly modified for the Post's suggestion to work.

Theoretically, of course, it's possible that the Post simply didn't know about Dickerson  --  but only theoretically.  In fact, at the time Dickerson was pending, the Post editorialized in favor of the obtuse result the Court reached, putting Miranda beyond the reach of democratic processes.  Beyond that, last week I submitted to the Post an op-ed suggesting largely the same changes to Miranda it endorsed today, but explicitly addressing the Dickerson problem and suggesting how it could be confronted.

If the Post didn't want to publish the op-ed, fine.  It's their paper, not mine.  But in order for its suggestion today to work, both it and the Court are going to have to eat a little Dickerson crow.  It won't be a tasty dish, but winning the intelligence war against al Qaeda is more important than optimal digestion. 

The Supreme Court today gave the prosecution a big win in Connick v. Thompson, described below in the Heritage Foundation summary:

In a 5-4 decision by Thomas, the Court held that a district attorney's office cannot be held liable under section 1983 for failure to train its prosecutors based on a single BRADY violation. 

Thompson was convicted of armed robbery, and later, capital murder.  He chose not to testify at his murder trial because of his prior robbery conviction.  A month before Thompson was to be executed, an exculpatory crime lab report was discovered relating to the armed robbery.  The execution was stayed, and his robbery conviction was overturned.  A Louisiana appellate court reversed Thompson's murder conviction, and he was acquitted when retried. 

Thompson sued the district attorney's office under section 1983, claiming they had violated BRADY by failing to disclose the crime lab report.  The equally divided Fifth Circuit court affirmed a liability finding on the theory that the violation was caused by the office's unconstitutional policy and its deliberate indifference to an obvious need to train its prosecutors on BRADY. 

In reversing the Fifth Circuit, the Court noted that a pattern of similar constitutional violations is "ordinarily necessary" to demonstrate deliberate indifference.  Thompson did not prove a pattern of BRADY violations, and mistakenly relied on the "single incident" theory of liability hypothesized in CANTON.  Deliberate indifference in this context requires proof that city policymakers disregarded the "known or obvious consequence" that a particular omission in training would cause the violation.  Here, failure to train prosecutors in their BRADY obligations did not fall under CANTON; the attorneys are trained in the law, understood constitutional limits, engage in continuing education, and must satisfy licensing and ethical obligations.  Failing to train prosecutors in the grey areas of BRADY does not amount to "a decision by the city itself to violate the constitution." 

Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan.  Scalia (with Alito) joined the Court's opinion but also filed a concurrence addressing the dissent.

Of course this sort of issue should never arise.  Criminal litigation is not a game.  Those who insist on putting the truth first and ending all the clever maneuvering will never have discovery issues.  When I was an AUSA, although the law and Departmental regs did not require open file discovery, I provided it in every case (except where witness safety was an issue).  It shouldn't take Brady or any office training.  It should take only the conscience that brought you into the prosecutor's office to begin with.

Defendants ordinarily have much to fear from the truth, because it tends to send them to jail.  Those on the prosecution side should welcome the truth and let the chips fall where they may.

 

 

No nation with even a rudimentary sense of survival would delay the questioning of captured terrorists to take time to advise them that they need not say a word and that a lawyer will be provided to assist them in clamming up.  I made that point earlier this month.

I'm thrilled that the Department of Justice is not as 100% clueless as it had seemed when Eric Holder couldn't give a coherent answer to Congress on the Miranda-and-terrorists question.  Now it's merely 90% clueless.

The key to understanding its cluelessness is in a paragraph farther down in the WSJ piece Kent cites:

The Justice Department believes it has the authority to tinker with Miranda procedures [by expanding the Quarles exception]. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

Rep. Schiff hits the nail on the head.  If there were anyone at DOJ capable of reading a Supreme Court case, this would be pellucidly clear.