Recently in Criminal Procedure Category

For Appointment of Counsel: Get Moving

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Kent may have more to say about one of the cert. denials this morning, that being in Redd v. Chappell, No. 14-6264.

Justice Sotomayor, joined by Justice Breyer, wrote a statement respecting denial of cert. The State of California has not appointed counsel to represent this capital inmate in his state habeas proceedings seventeen years after he was sentenced to death and four years after the completion of his direct appeal. This is so notwithstanding a state statute that requires such appointment.  (The state court prohibits pro se submissions when the inmate has a continuing right to representation).

I will leave it to others to decide whether there should be a right to a lawyer to pursue collateral relief after the defendant has received one comprehensive and fair review of his claims.  But when California by statute provides for such a right, it's obvious that the state needs one more statute  --  one that provides for appointment to be made within 90 days of the time direct review becomes final, and that the habeas brief be filed a maximum of six months after that.  The penalty for any lawyer who refuses court appointment or misses the deadline will be suspension from practice for one year.

There might be good reasons for some aspects of the delay in capital cases. There is none for appointing counsel and getting your work done.  Abolitionists live off the delay they egg on.  It is time for this game to stop.

Complexity, the Enemy of Justice

Kent yesterday had an entry in which he noted that a man who shot and killed his wife and her brother twenty one years ago was due to be executed, but was fighting it off with a (typical) blizzard of last-minute procedural motions.  As Kent put it:

So when you are stone cold guilty of a crime for which the death penalty is clearly appropriate, what do your lawyers argue about at the last minute?  Drug expiration dates.  Really.

This got me to thinking:  Why has criminal justice system  --  not just capital punishment, although certainly that too  --  tied itself up with manufactured procedural issues that wander at increasingly huge distances from the central question:  Are we being careful enough to be sure we've got the right guy?

I think it's because we've become entranced with the idea that moral confidence in the system requires perfection or something very close to it, and that perfection requires the kind of microscopic complexity that now stretches on year after year after year.

But this is all wrong.  The quest for perfection is a fool's errand no matter what our punishment scheme is.  For starters, it's unattainable.  And it has reached the point that the complexity it spawns produces more injustice than it averts. Prof. Richard Epstein explains the point brilliantly in the excerpt after the break.  (Simple Rules for a Complex World,  Harvard University Press, 1995; emphasis mine).
I previously noted how frivolity beat sobriety in deciding to treat the terrorist murderer in the Benghazi case, Ahmed Abu Khattala, as a defendant to be tried in civilian court rather than as an enemy combatant.  But it's worse than I thought. Andy McCarthy, the former AUSA who convicted the Blind Sheikh, explains why as only a sharp-eyed and experienced prosecutor could.  The basic problem is that  -- for reasons that cannot be other than political  --  the indictment omits essential background information needed to get the whole truth before the jury:

Khatallah has been identified by the State Department as a "senior leader" of Ansar al-Sharia, one of the al-Qaeda-tied franchises in Libya. Yet there is no mention of Ansar al-Sharia in the indictment, much less of al-Qaeda or the Islamic-supremacist ideology that ties jihadist affiliates together. In fact, the indictment does not even accuse Khatallah of being a terrorist.


Nothing about a long-running, ongoing jihadist war against the United States.

Instead, the indictment is written to portray a sudden, spontaneous eruption of violence, without much planning or warning, in which Khatallah -- who knows . . . perhaps inspired by a video -- abruptly joined a disgruntled group of protesters that turned out to include some shady terrorists motivated by . . . well, who can really say? All we know is the violence started without warning and, before you could scramble a fighter-jet or fuel up Air Force One for a Vegas campaign junket, it was all over.

There are a lot of downsides to giving enemy-combatant terrorists all the majesty of American due process. But at least it used to mean that, by the end, you'd have the truth, the whole truth, and nothing but the truth. Now, it's starting to look like what you get on the Sunday shows.

Is Plea Bargaining Just?

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At Law and Liberty, psychiatrist and former prison doctor Theodore Dalrymple posts an essay severely critical of plea bargaining.  His focus is on capital cases, but the analysis is applicable across the board.

I disagree with most of what he says, and I think he simply refuses to come to grips with the realities of the criminal justice system, particularly the limitations on its funding and the scope of the social problem it is designed to attack.  But the article struck a chord with me, as it makes a case I have long thought appealing:  That plea bargaining is deeply unsatisfying if not, at some level, unjust.

As the author says, "[P]lea-bargaining is intrinsically unjust because it may induce the innocent to plead guilty and the guilty to hold out for a lesser punishment than they deserve."  I have lots of doubts about the first part of that sentence, although there may be rare cases in which it is true.  The second part, however, is true in spades, although hardly ever mentioned in today's debates.  Simply because the money is not there to take anything but a small percentage of cases to trial  -- and because trials have become so time consuming, complex and expensive  -- criminals routinely get lesser punishment than their behavior has earned or the law (at least theoretically) provides.

Is the Criminal Justice System Broken?

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According to Eric Holder, it is.  According to the vastly more fair-minded and intelligent approach of Judge J. Harvie Wilkinson of the Fourth Circuit, it isn't.  As Judge Wilkinson puts it in his article in the Vanderbilt Law Review:

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

Simply put, in calling for an overhaul of our criminal law and procedure, the critics have failed to appreciate the careful balance our criminal justice system strikes between competing rights and values. They have failed to respect the benefits of the system's front-end features--namely, early process and early resolution. Moreover, they have sold short the democratic virtues of our system. The sensible tradeoffs reflected in American criminal justice are worthy of respect, and the system's democratic tilt is deserving of praise. The critics have extended neither. Ultimately, the often harsh tone of their indictment has done an injustice to the system of criminal justice itself.

The Rule of Lenity

The News Scan notes today's decision in United States v. Abramski, in which the Court affirmed, 5-4, the conviction of a straw purchaser for lying about the actual intended owner of the gun.

There is a strong dissent by Justice Scalia, relying in part on the rule of lenity, which, the Justice maintains, might as well be explicitly tossed overboard if it is not to be applied in favor of Mr. Abramski.

There  is something of a battle of the footnotes about this question, as pointed out in Prof. Josh Blackman's blog entry.  Although I most often agree with Justice Scalia and his three dissenting colleagues, in this instance I thought Justice Kagan got the better of the argument.

I would add only one thing.  If you don't want to get prosecuted for lying, don't lie. It's not that hard.
The Seventh Circuit has its own view, reported on here.  The text of the opinion, per Judge Posner, is here.
I would hope that whoever the defense lawyer is will have the minimal decency to accept this tribute to his client's 14 year-old victim, but legal culture is so obsessed with client-uber-alles that I'm taking no bets.

Double Jeopardy

There is one summary reversal on the U.S. Supreme Court's orders list this morning.  If the day of trial arrives, the jury is sworn, the prosecution is not ready and puts on no evidence, the defendant moves for acquittal, and the trial court grants it, can the defendant be retried?   Of course not.  The case is Martinez v. Illinois, No. 13-5967.  The opinion is "per curiam," meaning it is the product of the Court as a whole with no justice identified as the individual author (meaning, probably, it was actually written by someone on the staff).  There is no dissent.

Update:  In other SCOTUS action, the high court ruled unanimously for the police in the car chase/excessive force case, Plumhoff v. Richard, and the Secret Service v. protesters case, Wood v. Moss.  The court ruled 5-4 for the allegedly (but actually not) retarded murderer in the "error of measurement" case, Hall v. Florida.  I will have more on these cases later.

DOJ Extorts Another Guilty Plea

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We've all heard by now that prosecutors charge innocent defendants by the hundreds or thousands, then force them to forego their right to a trial by their peers. The guilty pleas thus produced don't reflect actual guilt, there being none (or, maybe, in an eensy-teensy number of cases, just a little).  They reflect the fact that prosecutors, basically because of character defects (defects that mysteriously vanish when they move on to make actual money as defense lawyers) can threaten defendants with draconian sentences.  Such mind-bending punishment makes it just too risky for Mr. Innocent to go to trial.

I'm sad to report that the fascists did it again today, this time to a foreigner who, so far as news reports disclose, was not so much as afforded a translator.

Is there anything these people won't do?
Recent years have seen a dramatic growth in the number of complaints, e.g., here, that criminal trials have all but disappeared in the United States and essentially have been replaced by plea bargaining.  Closely related to this complaint is the argument that, mostly just to make their jobs easier and marginalize judges, prosecutors brandish long mandatory minimum sentences to bully defendants  -- including the legion of innocent ones  --  into prison.  The idea is that defendants are offered the choice of taking a plea to a relatively lighter charge or going to trial on charges with much longer, and often mandatory, penalties. Defendants, even those with solid defenses, feel like they have no choice but to take the deal.

One thing seldom heard when the bellowing starts is even slight mention that exactly these arguments were presented to, and rejected by, the Supreme Court decades ago, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), with Justice John Paul Stevens casting the deciding vote.

But still, what the heck.  If this is what the defense bar and some of the bench think, is there something that could be done to address their concerns?

You bet.

Sticking to Procedure

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After the defendant, Siale Angilau, an alleged gang member on trial in federal court in Utah for racketeering conspiracy, became so disruptive today that the proceedings had to be ended, the judge sua sponte declared a mistrial, saying, "The court finds that this occurrence in the courtroom would so prejudice Mr. Angilau as to deprive him of a fair trial."

Well, yes, that's one way to put it. The "occurrence in the courtroom" was that Angilau charged the witness stand so suddenly and aggressively that a courtroom deputy had to shoot him. He died in the hospital shortly afterward.  CNN has the story.

And, yes, I suppose the thing to do is to declare a mistrial, since the jury might indeed draw some conclusions about Mr. Nicey.  On the other hand, I think the court can now withdraw the mistrial order as moot.

P.S.  Maybe the Innocence Project can add this one to their "exoneration" list, since the trial ended without a resolution favorable to the prosecution, and the government is unable to pursue a second trial.
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.

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