Recently in Notorious Cases Category

The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
Kent has a thoughtful post about Judge Jon Newman's suggestions to broaden the means to hold police accountable for infringing the constitutional rights of citizens.  I would add for the moment only four brief points which, together, make me wonder whether Judge Newman's op-ed is fully forthcoming.

First, the Judge uses the Freddie Gray acquittal as a springboard to note the supposed inadequacies of present law, but never hints that Gray's family already filed suit and, ten months ago, received a multi-million dollar settlement.  It is impossible for me to believe either that Judge Newman did not know this or thought it irrelevant.

Second, the Judge likewise never hints that the issue of practical and legal immunity for the police has been considered carefully by the Supreme Court.  Kent remedies this deficiency, but it should never have been Kent's job.  Why is a federal appellate judge entirely failing to disclose to a lay readership the fact and the substance of the Supreme Court's thinking?

Third, Judge Newman simply assumes that the Baltimore police were liable for tortious, if not criminal, conduct.  He does this without quoting a single word from the Baltimore trial court's factually detailed opinion, which, to put it gently, puts Judge Newman's assumption in doubt.

Last, Judge Newman says this: "Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence." Yes, well, that might be because, as Judge Newman also full well knows, and in other contexts insists upon, "ample" evidence is insufficient to convict.  It takes evidence proving every element of the offense beyond a reasonable doubt.

Can we expect something more balanced than this from a veteran federal judge?

The Silence of the Civil Liberties Lambs

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When there is an acquittal in a high-profile prosecution  --  particularly a prosecution that reeks of political opportunism and racial edginess  --  the civil liberties and criminal defense bars often whoop it up.

There was such an acquittal yesterday.  But, from the usual criminal defense spokesmen, I'm not hearing any celebration. Indeed, I'm  not hearing much of anything. 

Why?

It's no big secret:  Because the person acquitted was a cop  --  the lead Freddie Gray defendant.

He was acquitted notwithstanding a hostile jurisdiction, a grandstanding prosecutor, a courthouse mob outside the building that could be heard inside, a poorly-hidden assumption of malice within the dominant culture, the widespread deep-sixing of the presumption of innocence, a long-ago trial and conviction in the media, and an overall circus atmosphere.

These are exactly the features of criminal justice that civil libertarians frequently condemn.  They do so in the name of providing a fair process to all, no matter how ugly the crime or how despised the accused.

Unless, that is, they're the ones doing the despising.  In that event, good luck in hearing, from the civil liberties lambs, a single BAAAA.
As Bill noted earlier today, Officer Caesar Goodson was acquitted today of charges arising out of the death of Freddie Gray.  Because Goodson chose to waive a jury trial and have his case decided by the judge, we have a full explanation of the verdict.  The transcript is here.

The case is State v. Goodson, Circuit Court for Baltimore City, No. 115141032.
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

Freddie Gray Prosecution Implodes

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Small-time Baltimore drug dealer Freddie Gray was alive when he was placed in a police van and all but dead when he came out (he died a few days later).  Six police officers, three white and three black, were charged with various crimes related to his death.

I said at the time (e.g., here, here, here and here) that the States Attorney, Marilyn Mosby, struck me as a politicized, grandstanding amateur who would be headed for trouble.  In any other context  -- that is, where the defendants were not police  --  her behavior, consisting of events indistinguishable from campaign rallies, would be scorched by civil liberties groups as unprofessional if not borderline unethical. But such groups have been quieter than the proverbial church mouse.  I guess cops aren't worthy of due process.

Here are the results so far:  In an overwhelming black and liberal city, the first officer got a mistrial.  The second got an acquittal on all counts. This morning, the third, against whom the most serious charged was lodged (negligent homicide), was likewise acquitted, also on all counts.

I have no personal knowledge of the facts of the case.  An acquittal does not mean the defendant didn't do it.  But to go to trial three straight times and get not a single count of conviction is, in my experience, nearly unprecedented.  I strongly suspect the court found this prosecution just as ill-conceived and ideological as I did and, more important for the purposes for which trials are convened, just as lacking in solid evidence of guilt.

Reactions to the Orlando Massacre

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All of us view the world through our own lenses, and those lenses are often polarized.  Was the terrible shooting in the Orlando nightclub

(a) An ISIS-inspired act of terrorism against the United States;
(b) A homophobic hate crime;
(c) The act of a mentally unbalanced person;
(d) Committed with a weapon that it is difficult to see why any law-abiding civilian has a legitimate need to own; or
(e) All of the above?
The defense bar is attempting to spin the narrative about the lenient sentence given Stanford rapist Brock Turner.

The problem, it tells us, was mostly a well-meaning but white tribalist judge.  The problem decidedly was not the defense-friendly sentencing submissions made in Turner's behalf  -- or, if they were a problem, it's because they were strategically inapt and tone-deaf. That they were morally bankrupt and odious plays second fiddle in the defense view, see, e.g., here and here (if they even get a seat in the orchestra). 

Still less of a problem is defense counsel's work.  This is notwithstanding that the entire purpose of that work was to get the rapist off with a trickster acquittal  --  or, failing that, to get a non-incarceration sentence.  In the latter, the defense very nearly succeeded. Yippee!

But rather than take a victory lap for this rare, chipper outcome, the defense bar  -- politically shrewd as ever  --  smells trouble and has commenced damage control. The public might, for once, show significant interest in, and concern about, how the victim got treated in court.. Thus, while much is said about the judge, the system, white privilege, class bias, jocks, drinking, fraternities, etc., etc., next to nothing is getting said about defense counsel's treatment of the victim.

Q:  Now why would that be?
I have previously argued that Judge Aaron Persky, who imposed a six-month jail sentence on the man who grossly violated an inebriated woman, should be recalled.

I advanced this position notwithstanding the opinion of the defendant's father that all his son did was "20 minutes of action"  --  a phrase that will live in infamy if I have anything to say about it, not because it's appalling, but because it's revealing.  In 40 years of practicing law, I have never seen the defense attitude toward victims put more honestly or more succinctly. 

The court's lenient sentence, and what should become of Judge Persky, is the talk of the legal blogosphere, see, e.g., Doug Berman's entry here, and is today's lead topic in the New York Times "Room for Debate."  The NYT asked three legal scholars to chime in, and me too.  The debate presents as diverse and thoughtful a discussion as I have seen.

I have criticized the NYT more than once, and will do so again, but I thank it for seeking a conservative viewpoint and allowing me to speak my piece.
The Stanford rapist, Brock Turner, got a six month sentence for a more-disgusting-than average (if that makes any sense) attack on an inebriated woman.  As I've previously noted, once the trial rolled around, his defense lawyer went to town on the victim.  He did this in a display of vicious misogyny any normal person would find shocking.

His cross-examination was not an attempt to create reasonable doubt, none being possible about whether an unconscious person can consent to sex.  It was an attempt to punish the victim for coming forward.

There are those in my profession  --  indeed, almost certainly a majority  --  who think this kind of lawyering is permissible, if not required.  All in the for client, dontcha know.

I dissent.  Being a lawyer is not a ticket beyond the boundaries of decency.

At the same time, being a white male is not a ticket to blanket condemnation, either.
I would say that criminal defense reached a new low when part of the sentencing package for a convicted rapist characterized his unusually demeaning and ugly sexual assault as "20 minutes of action."

The problem is that it's nether new nor a low.  It is, however, a rare public window into what goes on with the "client-uber-alles" mentality of criminal defense.

Let's just say it out loud:  To the defense side, victims are human garbage.  Their rights count for zip.  Their humanity counts for zip.  And the legal profession tolerates it.

But we don't have to tolerate the judge, Aaron Persky, who then cheerfully gave the rapist  --  a college athlete who could easily have overpowered the victim even if she had been conscious, which she was not  --  six months in the county jail (of which he is likely to serve just three).  The voters can get Judge Persky removed.

It should not take a politically incorrect crime like rape to awaken us to how degraded legal "ethics" have become, and how much judges need reining in with mandatory minimum sentencing statutes.  But we need to start where starting is possible, and we need to start now.
Prof. Dan Markel was a popular teacher at Florida State Law School and an active legal blogger.  I met him only once that I remember, but we had a number of mutual friends.

He was assassinated at his home, in broad daylight, on July 18, 2014.  Until today, his murder was unsolved.  This morning, 34 year-old Sigfredo Garcia was arrested for the killing. As I suspected, it seems to have been a hit  --  i.e., a murder-for-hire.

What I was not suspecting was the killer's rap sheet, summarized as follows in Tallahassee Democrat (emphasis added):

Garcia has been arrested at least 22 times in Florida. His first arrest, for vehicle theft, happened in Miami on April 30, 1997, just three days after his 15th birthday.....

He was arrested several other times as a teenager, on charges including assault on a law enforcement officer, car burglary, making or attempting to make an explosive device, possession of marijuana and trafficking in amphetamines, according to FDLE documents.

As an adult, he was arrested on charges including aggravated assault with a weapon, criminal mischief, possession of cocaine and marijuana and strong arm robbery.

It wasn't immediately clear how many times he was convicted or how much time he's spent in county jail. He has no history of incarceration in Florida state prisons.

Translation:  Garcia had spent virtually his entire life proving that he was an unrepentant violent criminal and that he could not live peacefully in civil society. Yet he served not one day in state prison.

We are often lectured that America over-incarcerates.  What Dan Markel's murder shows, to the exact contrary, is that America gives too many morally oblivious second chances.  Prof. Markel will not be the last to pay the price.

Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]
In my post here, I went after the Freddie Gray prosecutor, State's Attorney Marilyn Mosby. As usual, my remarks did not suffer from excess subtlety:

Freddie Gray died as a result of injuries sustained in police custody, and there remain more than a few questions to be answered about that.  But the way to answer them is not with a "cops-are-Nazis" festival, which  --  thanks to an immature, political and grandstanding State's Attorney  --  is what the Freddie Gray prosecutions have become. Not for nothing did she lose today's case, just as she fumbled away (in a mistrial) the one before.

I was struck to see how much my take on it resembles that of liberal but independent-minded Harvard Law Prof. Alan Dershowitz, who said in an interview on Fox News:

On Tuesday night's The Kelly File, Harvard Law professor Alan Dershowitz says Baltimore's state's attorney Marilyn Mosby, the Freddie Gray prosecutor, acted irresponsibly, politically.

"These are officers who, you know, may have made a mistake but they are not guilty of criminal conduct," Dershowitz said of Officer Edward Nero being found not guilty in Baltimore. "What she tried to do is stop the mob [of rioters and arsonists]. I understand that, but you don't use the criminal justice system to solve racial problems."

"She's a symptom of a larger problem," Dershowitz said of Mosby. "Black Lives Matter is endangering the fairness of our legal system. Because they're rooting for outcomes based on race."
The  full text transcript of Judge Barry Williams's ruling in the trial of Baltimore police officer Edward Nero is available here.

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