Author: tcbdefense

Very Interesting article on appeals and innocence…

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Anderson on Innocence and Harmless Error

Anderson helenHelen A. Anderson (University of Washington – School of Law) has postedRevising Harmless Error: Making Innocence Relevant to Direct Appeals on SSRN. Here is the abstract:

The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by “unvalidated/improper forensics,” false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exoneration’s.

 

Crimes and Terror….

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Saul on Criminality and Terrorism

Saul benBen Saul (University of Sydney – Faculty of Law) has posted Criminality and Terrorism (COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, Katja Samuel et al., eds., World Justice Project: Nottingham University & Club of Madrid, Forthcoming) on SSRN. Here is the abstract:

This chapter identifies threats to the rule of law posed by criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. First, vague or over-inclusive definitions of terrorism raise serious concerns about freedom from retroactive criminal punishment. Secondly, ancillary, preparatory or inchoate offences (frequently attracting disproportionate penalties) which hang off the primary definition of terrorism in various legal systems have sometimes been crafted too broadly. Thirdly, group-based offences (such as membership, association or ‘material support’ offences) linked to the proscription of terrorist organizations often deny procedural fairness and rights of review. Fourthly, speech-related offences including incitement, advocacy or glorification of terrorism engage concerns about freedom of expression, of religion and from non-discrimination. Fifthly, the modification of traditional criminal procedure in dealing with terrorism impairs fair trial rights and the independence and impartiality of tribunals. Finally, boundaries of different branches of law (including domestic criminal law and international humanitarian law) have been blurred, risking double jeopardy and generating problems for the integrity of all such branches of law.

November 18, 2010 | Permalink

 

Death not favored….

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“Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities”

This press release is on the website of the Death Penalty Information Center:

(Washington, D.C.)  The Death Penalty Information Center today released the results of one of the most comprehensive studies ever conducted of Americans’ views on the death penalty. A national poll of 1,500 registered voters conducted by Lake Research Partners shows growing support for alternatives to the death penalty compared with previous polls. A clear majority of voters (61%) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).

In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62%) said either it would make no difference (38%) or they would be more likely to vote for such a representative (24%).
—

 

Self Defense and the Second Amendment…

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Benforado on Weapons and the Increasingly Dangerous Right to Self Defense

Adam Benforado (Drexel University – Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

November 11, 2010 | Permalin

The Death Penalty….

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Goodman, Caldwell & Chase on Transparency in Death Penalty Decisions

Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University – School of Law , Pepperdine University – School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:

In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.

After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court’s decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors’ report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.

The authors then provide an expanded analysis of prosecutorial arbitrariness in charging decisions in all thirty-seven U.S. states that still allow death sentences. They focused on each state’s statutory scheme setting forth criteria for seeking the death penalty, and determined that the more expansive the list of death-qualifying criteria is, the greater the potential for prosecutorial abuse of discretion in filing capital cases. The authors also provide the following statistics for each state between 1996 and 2006: state population, number of statutory foundational death qualifiers, number of death sentences, number of sentences to life without parole, and the number of sentences for premeditated murder.

This is followed by a discussion of the Federal Death Penalty Act and the Federal Protocol in filing death penalty cases. The authors suggest that these be used as models to reduce the potential for prosecutorial arbitrariness in capital cases. They also address the need to balance prosecutorial discretion with fairness in seeking the death penalty.

Finally, they provide several suggestions for for ensuring a more just use of capital punishment. These include narrowing the statutory categories of death-eligible crimes, implementing and following publicly disclosed charging criteria and procedures, increased and centralized review of charging decisions, curtailing the ability of elected officials to seek the death penalty, judicial review of charging decisions, and improved record keeping for capital case statistics.

How long will Miranda last…..

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I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improvedMiranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980).
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney.
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own.
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?”

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.

What did they mean …..

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Clancy on the Framers’ Intent and the Fourth Amendment

Thomas Clancy (University of Mississippi College of Law) has posted The Framers’ Intent: John Adams, His Era, and the Fourth Amendment (Indiana Law Journal, Vol. 86, 2010) on SSRN. Here is the abstract:

For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.

Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.

Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.