Recently in Criminal Procedure Category

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.

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.

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.

[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. 

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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.

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.

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?"

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.

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.

[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.

Kent is correct in noting that there is no freestanding requirement to give Miranda warnings.  The authorities only need give them if they want to use the ensuing statements in a criminal prosecution.

Another case apparently relisted in Friday's Supreme Court conference (see post earlier today) involves instructing the jury not to draw adverse inferences from the defendant's failure to testify.

In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court decided that, in the guilt phase of a trial, the defendant is entitled to such an instruction on request.  Not all defendants request the instruction, though, because it highlights the fact that the defendant has not testified.  Telling people "don't pay attention to this" is a pretty good way of getting them to pay attention to something.

Does the Carter rule apply to a case where the defendant pleads guilty to the crime and admits the eligibility circumstance, so the jury is impaneled only to decide whether an admittedly death-eligible murderer should be sentenced to death?  The trial judge in the case of Robert Woodall did not think so, and neither did the Kentucky Supreme Court.  The federal district judge did, though, and a majority of a three-judge panel of the Sixth Circuit decided that the state court's contrary decision was contrary to clearly established Supreme Court precedent, the standard established by Congress for a lower federal court to overturn a state court decision on habeas corpus.  Judge Cook did not agree:

The California Supreme Court today upheld the retroactive application of parole changes in Proposition 9 of 2008, Marsy's Law.  The decision is In re Vicks, S194129.

The law in this area is largely set by two US Supreme Court decisions, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000).  (CJLF filed an amicus brief in Morales.)

Vicks is a poster boy for the kind of criminal whose release victims should not have to go back and oppose more than once in a great while, if ever.  He committed a string of violent offenses including kidnapping, armed robbery, and gang rape.  He received well-deserved sentences of life with parole and 37+ years, consecutive.  His minimum parole eligibility date was 2010 for 1983 crimes.

California's law of parole was once so criminal-friendly as to require preposterous annual parole hearings, even for multiple murderers.  This has been tightened up since, once by the law at issue in Morales and again in Marsy's Law.  Under the Morales and Garner precedents, a change in parole consideration intervals can apply retroactively if it does not add too much risk that a prisoner will be denied parole at a time when he would otherwise have been granted it.

Marsy's Law sets a presumptive interval of 15 years, but it allows some discretion for setting shorter intervals and for reconsideration upon receipt of new information or a change in circumstances.  The court has to make some pretty generous assumptions about how this discretion will be used to get under the "significant risk" bar.  The facial attack has been rejected, and Marsy's Law has been upheld for now, but we are not out of the woods.

...yes, that Conrad Black, of Black v. United States, the follow-up case to Skilling, in which the Supreme Court upheld, with important judicially imposed modifications, the Honest Services Statute, 18 USC 1346.

The defendant, Lamar Evans, was in the middle of a jury trial for arson when his lawyer argued to the judge, erroneously, that the state had to prove that he burned down a "dwelling," and had introduced no such proof. The judge agreed, and granted a directed verdict of acquittal. The question before the Supreme Court was whether, under the Double Jeopardy Clause, Evans could be retried after the erroneous acquittal. By a vote of 8-1, with Justice Alito as the sole dissenter, the Court held that he could not.

Justice Sotomayor, writing for the Court, held that the Double Jeopardy Clause prohibits retrial following a court-decreed acquittal, even if the acquittal is "based upon an egregiously erroneous foundation." The Court noted that several of its precedents had applied this rule in cases closely resembling Evans's. The Court declined to extend to instances in which an acquittal has been granted a rule it developed for mistrials brought about at the defendant's instigation. In such instances, the Court has allowed retrials because the defendant himself sought a pre-verdict termination of the proceedings, thus effectively waiving his right to the one-fair-shot-only rule that lies at the heart of Double Jeopardy protection. 

Lots of criminal law action from the high court this morning:

Chaidez v. United States held that the Supreme Court's extension of ineffective assistance claims to cover misadvice or nonadvice about immigration consequences of conviction in Padilla v. Kentucky was indeed a "new rule" and hence not retroactive on habeas corpus to overturn final convictions.  CJLF filed an amicus brief in this case.

Evans v. Michigan held that a directed verdict of acquittal bars retrial under the Double Jeopardy Clause, even if the directed verdict is based on an error of law.

Johnson v. Williams held that when a state court rejects the defendant's state-law arguments and does not expressly mention a federal claim, the court is rebuttably presumed to have rejected the federal claim on the merits for the purpose of the federal habeas "deference" rule, 28 U.S.C. §2254(d).  In this case the presumption was not rebutted because the state court of appeal applied a state supreme court decision that did consider the federal implications.

Henderson v. United States held that, for the purpose of the "plain error" rule allowing a party to raise on appeal a plain error he did not raise in the trial court, "plain" is determined at the time of the appeal, not the time of the trial.  A trial court decision contrary to a later Supreme Court decision can thus be a "plain error."

The Aaron Swartz case has raised a firestorm of criticism about the use of prosecutorial discretion.  The gist of most of it has been that prosecutors routinely use "draconian" sentencing (have you ever heard of any other kind?) to extort guilty pleas from innocent people  --  or, if not innocent exactly, mostly innocent.  These "overzealous" prosecutors (have you ever heard of any other kind of that, either?) do this sort of thing in order (1) to tack another scalp to their office wall, or (2) get a good press release.

Can a state retroactively abolish a defense, even a "partial" defense such as diminished capacity?  If it is purely a legislative change, clearly not.  That is the heart of the constitutional prohibition of ex post facto laws.  A statute enacted after the crime that makes previously legal conduct criminal or increases the punishment of previously illegal conduct cannot be applied.

But how about a court's reinterpretation of a previously enacted statute?  Tougher question.  The Supreme Court has found a due process protection against court-made changes to substantive criminal law, but it is not exactly congruent with the ex post facto rule for statutes.

The Michigan Legislature passed a law in 1975.  Burt Lancaster [no, not that one] killed his wife in 1993.  The Michigan Supreme Court decided in 2001 that the 1975 law had abolished diminished capacity, a much-criticized doctrine under which a mental problem is claimed to negate the capacity to form a mental state such as "malice," typically reducing murder to manslaughter despite otherwise objective indicia of malice.  Lancaster's first conviction was overturned on habeas, and on retrial the trial court precluded the diminished capacity defense. 

The state court of appeals was okay with that.  Federal judges split 2-2, with two judges on the court of appeals panel saying the state court decision was both wrong and unreasonable.  The third member of the panel and the district judge disagreed.  Panel opinion is here.  Today, the Supreme Court took up the case as Metrish v. Lancaster, No.12-547.

Diminished capacity, BTW, is often known as the "twinkie defense."  The term comes from the notorious manslaughter verdict for Dan White, who killed San Francisco Mayor George Moscone and Supervisor Harvey Milk.  Twinkies were not actually part of the defense, but the term has stuck, and the low reputation of the defense is entirely justified.

The US Supreme Court today decided Smith v. United States, No. 11-8976:

Upon joining a criminal conspiracy, a defendant's membership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defendant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period.

Answer: no.

Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.

Justice Scalia delivered the unanimous opinion.