Recently in Criminal Procedure Category

Miranda Warnings for Terror Suspects?

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Since the capture of Ahmed Khan Rahami for the weekend bombing in NYC that injured 29 people, it has become clear that Rahami is a Jihadist.  A couple of years ago, his father said point-blank that he was a terrorist; he has traveled abroad to become steeped in radicalism, and his social media writings suggest the typical Jihadist hatred for the United States.

For fifty years, we have been required to give Miranda warnings to suspected criminals undergoing custodial questioning.  The question is whether that requirement should be extended beyond the standard criminal to a man more appropriately looked upon as an enemy combatant.

I addressed this issue once before, discussing the underpants bomber captured at the Detroit airport.  Some readers have asked me to link that discussion, and I do so here.

Amending the Bill of Rights

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The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

Williams
v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.

Speedy Trial Rights Post-Trial?

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The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.
The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."
Yesterday's big criminal law news was the U.S. Supreme Court's decision in Montgomery v. Louisiana.  See my prior post and today's News Scan.  However, the decision in Musacchio v. United States, No. 14-1095, is also worth noting.

A conviction can be reversed on appeal if the evidence at trial is clearly not sufficient to establish the elements of the crime.  In Jackson v. Virginia (1979), the Supreme Court made this a federal constitutional rule.  Suppose (1) the elements of a crime are A, B, and C; (2) the judge erroneously instructs the jury they must find A, B, C, and D; (3) on appeal the appellate court finds plenty of evidence to support elements A, B, and C but none on D.  Is that reversible Jackson error?  No.  Jackson concerns only what the elements the jury should have been instructed on, not what they were instructed on.

If the defendant didn't raise a statute of limitations defense at trial, can he raise it on appeal?  Not unless Congress has made the time limit jurisdictional, which it rarely does and did not do for the crime involved in this case.  How about the plain error rule?  No.  If the defendant does not bring it up, the failure of the trial court judge to do so sua sponte is not error, plain or otherwise.

That's the short version.  For a longer version, see Rory Little's post at SCOTUSblog.
Former USAO appellate chief turned National Review analyst Andy McCarthy uses the curious Dennis Hastert case to pull back the curtain on what is really going on with "sentencing reform."  He notes:

Mandatory minimum sentences and strict sentencing guidelines for serious offenses were enacted precisely because judges, often in collusion with prosecutors [Ed. note: and virtually always at the urging of defense counsel], were systematically releasing serious offenders, allowing them to continue preying on society. While the "man-mins" and guidelines helped dramatically reduce crime, the left-leaning legal profession agitated against them. One result is "fact" pleading -- the sort of shenanigans that we see in the Hastert case: a willfully false rendition of the facts in order to sidestep sentencing enhancements required by law.

That is what sentencing "reform" has in store for us. The proposals may call for careful judicial fact finding before a felon is released. But the law already calls for careful judicial fact finding when the felon is sentenced. What we frequently get, instead, is careful judicial evasion -- often aided and abetted, it must be noted, by the Justice Department. It may be that careful fact finding would result in the release of some prisoners who should be released; but the breed of "fact" finding we are apt to get from sentencing "reform" will result in the mass release of incorrigible, violent criminals.

McCarthy's article is a goldmine about how the federal criminal justice system works on the inside, and well worth your read.  Sentencing reform is getting as far as it is only because the public has no idea about how many breaks for criminals are already built into the system, though hidden from view.

Should Legal Outcomes Reflect the Truth?

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The title of this post asks a question to which the answer should be unanimous.  Of course legal outcomes should reflect the truth.  What's the alternative?  Fiction? Lying?

As this entry on SL&P shows, however, legal outcomes very often reflect a fable agreed to by the lawyers, rather than the truth.  In criminal cases, the great majority of outcomes  --  over 90%  --  are ordained in plea agreements.  As the article shows, however, in at least one category of cases (and in truth many others), plea agreements typically deep-six the truth in favor of some sanitized account  --  an account that, in the words of one frustrated judge, bears "no factual resemblance to what occurred."  The article notes:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim -- a scenario common in a drunken bar fight but wildly inconsistent with rape. "It's sidestepping the truth. It's legal fiction, nothing more than a lie," said Donnelly, a Cuyahoga County Common Pleas Court judge. "No one can defend this process. There is no ethical defense."


I regret to report that fictionalized and sanitized accounts of the defendant's behavior are hardly limited to sex cases.  They are epidemic.  Indeed they have a name: "swallowing the gun."  At the urging of defense counsel, prosecutors routinely agree to a dumbed-down  --  and, let's face it  --  largely whited-out account of the defendant's behavior in order to move the case and get to the next in a very long line.


Something needs to get done to change this. 





Spoilation of Evidence and Secretary Clinton

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CJLF is not a partisan organization, although it's obvious it more frequently sides with Republicans than Democrats, particularly on matters of judicial selection.  I, as a guest contributor, have not been shy about strongly taking on such Republican stalwarts as Rand Paul, Mike Lee, and occasionally my brilliant friend from years ago  --  and a courageous man in my view  --  Sen. Ted Cruz. I have had very little to say about some prominent Democrats, in particular leading presidential candidate Hillary Clinton.

This is, however, a criminal law blog, and one of the most important factors in preserving the legitimacy and public repute of criminal law is that it be applied as equitably as possible toward both the strong and the weak.  Thus, when powerful but corrupt Republicans like George Ryan, Duke Cunningham and Bernie Kerick got sentenced to prison, my reaction was:  Fine.  They want to behave that way, they can live with the consequences.  

Same deal with the Democrats.  Today, I could not help but take note of this story, "Clinton Lawyer Says Her Server Was Wiped Clean."  

When the Defense Is Correct

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This last July saw a "Blue Moon," i.e., two full moons in a month.

This happens as often as my agreement with the defense in a criminal case.  So I guess it's fitting that I agree with it in this one, as reported by the NYT.

It's a Brady case.  An amicus brief taking the view that the Supreme Court should grant cert was signed by, among others, former Attorney General Michael Mukasey and Peter Keisler.  Mr. Mukasey was my debate partner last year on sentencing reform, and Peter is a friend of mine of many years, having been both Acting Attorney General in the Bush Administration and, along with my wife, a co-founder of the Federalist Society. 

And I have a confession.  I have not read either the petition or the Third Circuit's opinion, which sided with the government (as have other circuits on the question presented).  If Mr. Mukasey and Peter Keisler say so, that's good enough for me. The amicus brief was also signed by Seth Waxman, the Solicitor General toward the end of Blll Clinton's term, and a learned man of many bad ideas but widely and correctly respected integrity.
The Supreme Court in Davis v. Ayala held, 5-4, that the Ninth Circuit erred in granting habeas to a California triple murderer.  The case is most notable, in my view, for its disciplined application of the harmless error doctrine and its respect for the AEDPA.  I also can't help thinking that the Court is becoming impatient with interminable delays fostered by years of procedural disputes long past the time, and having next to nothing to do with, the ascertainment of the defendant's factual guilt. Thus the majority opinion, written by Justice Alito, begins:

A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala's application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit's decision was based on the procedure used by the trial judge in ruling on Ayala's objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution's peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy.  On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt.  The Ninth Circuit, however, held that the error was harmful.

The Ninth Circuit's decision was based on the misapplication of basic rules regarding harmless error.  Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).

I learned of this today:

An Ad Hoc Committee to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act (CJA) has begun accepting public comments at the following address: CJAStudy@ao.uscourts.gov. It also is anticipated that in the course of its work the committee will hold public hearings.

The CJA was enacted to create a system for providing defense services to financially eligible federal criminal defendants. It became effective fifty years ago this year. Judicial Conference policy supports a periodic, comprehensive, and impartial review of the CJA program.

My own view is that those who undertake CJA defense are, on the whole, quite good, and earn all they get if not more.  I also think, however, that if we can afford more for the defense of criminals, we can afford more to keep them, after conviction, incarcerated and away from the public.

The constant refrain that "we just don't have the money for prison" is tripe. The BOP budget, like every aspect of the federal government's budget, is less a description of fiscal reality than of political priorities.  If this Administration wanted to shift its priorities toward keeping the crime rate low (rather than, for example, funding its gargantuan clemency initiative), it could easily do so.  And should.

So Long to the False Arrest Charges

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Apparently the Baltimore State's Attorney read Crime and Consequences before she met with the grand jury. Very good. It might have been better, though, if she had read it before her earlier, courthouse steps carnival announcing charges against six city police officers.  

Although she originally made a point of the supposed illegality of Freddie's Gray's arrest, we now see that false arrest (or false imprisonment, as it is put) charges against the arresting officers have disappeared.  The prosecutor gives no explanation. But this Reason article does:

Of the criminal charges proposed by Marilyn Mosby, the state's attorney for Baltimore, in connection with the death of Freddie Gray, three are notably missing from the indictments approved by a grand jury today. The Washington Post reports that "charges of false imprisonment against three of the officers are no longer part of the case." That change presumably reflects the dispute over whether the knife Gray was carrying, which was the official justification for his arrest, qualified as an illegal switchblade.


Judging from the way police described Gray's knife ("a spring-assisted, one-hand-operated knife"), it did not fit the state's definition of a switchblade (as Mosby noted) and probably did not fit the city's definition either. But the latter point--which Mosby did not publicly address, even though Gray was charged with violating the city ordinance--is open to debate, which suggests that the officers who arrested him might reasonably have believed the knife was illegal. If so, they could not be convicted of false imprisonment, since to arrest Gray they needed only probable cause to believe he had broken the law.



Mr. Tsarnaev, Tear Down These Appeals

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One of the arguments against the death penalty for the Boston Marathon bomber was that it would result in years of appeals and collateral review, renewing the anguish of survivors and the families of the dead.

Of course there is an obvious way to avert this problem:  Tsarnaev could waive further review and accept what he earned.

I note that the adverse coverage of the sentence, for example, here and here, never so much as mentions this possibility.  The abolitionist assumption is what it always is: The problem is not the killer.  The problem is us.  He's not the sadist. We are.  Years of review are needed to advance the admittedly tiny hope that our racist, brutish, wahoo, etc., country will come to its senses.

As Kent has noted, it is anything but a foregone conclusion that review will take its usual length.  This is the feds.  McVeigh was executed less than four years after he was sentenced.

And then there's the fact that no one has cited a ghost of a plausible reason to believe the results of the trial or sentencing will be overturned.

Ronald Reagan famously said, "Mr. Gorbachev, tear down this wall."  Perhaps, in the unlikely event those upset with the prospect of further victim suffering are sincere, they will join me in saying, "Mr. Tsarnaev, tear down these appeals."

For once in his young life, perhaps Tsarnaev could show an ounce of decency. 

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