Recently in Criminal Procedure Category

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

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. ยง2254(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: 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

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. 

A National Criminal Justice Commission?

Senator Lindsey Graham of South Carolina has proposed establishing a National Criminal Justice Commission.

I have doubts about such commissions.  I can't recall one that actually did any good for all the money that was spent on it.  What seems to happen is one of two things: Either it makes decently sensible suggestions that go nowhere (like the Bowles-Simpson Commission); or it makes poor suggestions some of which might get adopted (see, e.g., the Sentencing Commission's parade of defendant-friendly proposals over the last few years).

I have no idea whether there's much chance Sen. Graham's Commission will get created, but I have a couple of ideas, with more doubtless to come, about how such a Commission might approach its job if it ever comes into existence.
There is one person we often don't hear from in death penalty cases:  the killer.

The Fifth Amendment of course shields the killer, and every defendant, from having to take the stand in either the guilt or penalty phases of his trial.  So there is no means of forcing him to say anything; that is as the Framers intended.

Still, wouldn't it improve both the system as a whole and the prospects for justice in the individual case in we could hear from the most important person in the courtroom?  The one whose silence is at the center of the case?

I tend to think so.  Thus I make the following suggestion should the jury return a recommendation of death for Dzhokhar Tsarnaev.  

The Elephant in the Room, Part II

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I am undoubtedly remiss in having omitted from my earlier post the reigning definition of probable cause.  It was set forth in Illinois v. Gates, 462 U.S. 213 (1983), in the quotation that follows.  I think it to be particularly ominous for the Baltimore prosecution in light of the final phrase, emphasizing that the police are given wide latitude in assessing the circumstances confronting them.  And Freddie Gray was no stranger to the police.

Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is also applicable to the probable-cause standard:

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and [462 U.S. 213, 232]   so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

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.

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