Author: tcbdefense

Is he or isn’t he?

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Is Steven Slater a criminal?

Slater: Former JetBlue flight attendant leaves jail after posting bail in New York on Aug. 10.

By Erin Murphy
After years of silently suffering claimed professional indignities, JetBlue flight attendant Steven Slater grabbed two beers and slid to freedom. Or so he thought. Less than 24 hours after his headline-making exit, he was in custody on felony charges of reckless endangerment, trespassing and criminal mischief. His next court hearing is scheduled for this month. But of all the conversations inspired by his actions, one is conspicuously absent: Even those who applaud him seem totally unfazed by the fact that he also is being treated as an alleged felon.
For much of American history, criminal law was driven largely by what is known as the “harm principle” — the idea (inherited from John Stuart Mill) that government should interfere with people’s liberty only when necessary to prevent harm to others. But in this day and age, depending on how you look at it, either every act that could conceivably injure another interest now qualifies as criminally harmful, or the criminal law has become completely unmoored from the harm principle itself.

When it comes to the criminal law, the harm principle is an important restraining mechanism: It’s what keeps the government from punishing aimlessly for conduct unlikely to result in any material injury or danger. Even some behaviors that might result in damage — such as school bullying or illegal downloading — might in many cases be more effectively addressed outside of the criminal justice system. Without the harm principle, we end up in a world in which 7-year-olds are reduced to tears by health inspectors shuttering their curbside lemonade stands, preteens get handcuffed for eating french fries on the Metro, or juveniles are treated like sex offenders for exchanging racy text messages.

Society’s ‘cancer’

Such omnivorous criminalization is not good — not for Slater and not for society. It is bad for Slater because, by all accounts, for almost 20 years he was a solid worker, but now he faces time in prison for a “crime” that the vast majority of people find funny and harmless. Fighting criminal charges can easily deplete a defendant’s finances, and a felony conviction could impair his future employability, deny him civil rights such as the ability to vote or serve on a jury, and cut off access to benefits related to health, housing and education. Slater’s dramatic resignation might be Warholian entertainment now, but it will not be as funny in 10 years if he slips from being a productive member of society to an unemployable, alienated individual hardened by time in prison. The district attorney should justify the decision to take that risk, especially because Slater’s employer, JetBlue, recognized the humor of the situation in a casual news release acknowledging that Slater’s actions might ” feed your inner Office Space.”

Cannibalistic criminalization is also bad for the rest of us. Because harm prevention seems an unconvincing justification for this prosecution, perhaps the district attorney is motivated by another philosophy, such as the desire to deter others from engaging in the same kind of behavior. We are, after all, in the midst of an economic crisis, and the very fact that Slater appears to have tapped such a deep vein of resentment might suggest that failure to punish him would invite others to follow suit.

Disgruntled workers have become a familiar motif in the news cycle. Just a week before Slater theatrically bailed out, Omar Thornton killed eight of his co-workers in Connecticut after he was given the choice of quitting or being fired when he was allegedly caught stealing from his workplace. But does anyone really think prosecution of a Steven Slater would have stopped that? Can prosecutors really not tell the difference? If anything, maybe a few more harmless emergency exits would relieve some of the pressure that matures into genuinely horrifying emergencies borne of anger, frustration and aggression.

The cost, in dollars

Perhaps most significantly, Slater is not the only one who pays a price for labeling his actions criminal. Per capita expenditure on the criminal justice system increased more than 300% from 1982 to 2003, from $158 to $638, and total spending has risen fivefold. There has been a 420% increase in spending on police, a 660% increase on spending for corrections and a 503% increase in spending on the judiciary. Today, the criminal justice system is draining our local governments, which fund half of all justice system expenses, to the tune of roughly $110 billion. States and the federal government spend an impressive $70 billion and $35 billion, respectively. Adjusted for inflation, criminal justice spending at the 1982 rate would amount to $66 billion; instead, we spend three times that.

At the same time, cities and localities are hemorrhaging core services — cutting public transportation, street lighting and school funding, not to mention curtailing police services for actual harm-causing offenses such as burglary or theft. Even if there is some merit in punishing Slater criminally, we should remember that every penny spent investigating, prosecuting and supervising him is a penny taken away from investigating, prosecuting and supervising more serious criminals — not to mention funding education, health, housing and other programs that might actually improve the plight of most individuals.

You know the old aphorism: To a man with a hammer, everything looks like a nail. If we are going to start seeing every transgression as a crime, then, especially in this economy, we should remember that the criminal justice system isn’t free.

Erin Murphy is a professor at New York University School of Law.

You have the right…or do you?

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Kinports on the Court and Miranda

Kit Kinports (The Pennsylvania State University) has posted The Supreme Court’s Love-Hate Relationship with Miranda on SSRN. Here is the abstract:
In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, and Berghuis v. Thompkins. This Article examines each opinion through a pragmatic lens, with an eye towards ascertaining whether the Roberts Court remains committed to the pragmatic approach taken by its predecessors. While the government prevailed on every issue raised by the three cases, the opinions vary in their fidelity to pragmatic norms.

The Article concludes that, even if Shatzer and Powell can be dismissed as effecting only incremental changes in the law – in the rules protecting those who invoke their Miranda rights, defining custody, and requiring that the warnings reasonably convey each of the rights Miranda guarantees – Thompkins cannot be defended on pragmatic grounds. In effect, the decision in Thompkins allows the police to begin interrogating a suspect immediately after reading the Miranda warnings, without first securing a waiver of the suspect’s Miranda rights, and then to use anything she says – even hours later – to demonstrate that she impliedly waived her rights. Thompkins thus essentially reduces Miranda to a mere formality, requiring that warnings be read and otherwise leaving criminal defendants with the same voluntariness due process test that Miranda was designed to replace. To the extent Thompkins signals a change in the Court’s attitude towards Miranda, it comes at a particularly critical time given reports that the Obama administration is considering proposing an exception to Miranda for terrorism suspects.
September 4, 2010 | Permalink

Innocence rejected…..

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Innocence claim rejected
Troy Davis loses challenge
Lyle Denniston | Tuesday, August 24th, 2010 1:54 pm
Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot. In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent.” Treating the case as an unusual one procedurally, Judge Moore said it appeared that he was acting as a fact-gatherer directly for the Supreme Court, so any appeal by Davis may have to go directly to the Justices. He sent a copy of his ruling to the Supreme Court.

(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II. Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)

A year ago, the Supreme Court sent Davis’s latest challenge — one filed directly with the Justices — to the District Court in Georgia “for hearing and determination.” The order said that the lower court should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.” The Justices’ unsigned order, issued over the dissent of Justices Antonin Scalia and Clarence Thomas, was apparently approved on a 6-2 vote (Justice Sonia Sotomayor took no part in it.) It was a highly unusual action because the Court does not often order fact-finding by a trial-level court; it more often pronounces the law and then leaves it to lower courts to implement such a ruling. The dissenters called the action an “extraordinary step — one not taken in nearly 50 years.”

Judge Moore closed his opinion by noting that he had carried out the Supreme Court’s mandate by holding a hearing and now ruling on Davis’s habeas challenge. “This Court,” he wrote, “concludes that executing an innocent person would violate the Eighth Amendment to the United States Constitution” — a point long hinted at but not yet specifically decided by the Supreme Court. However, the judge went on to reject Davis’s claim of innocence, summing up: “The evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.”

In a footnote, the judge added that “while the state’s case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail’s murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system.” (The judge may have meant “wreak,” not “wreck.”)

Judge Moore noted that the state of Georgia “concedes that it would be unconstitutional to execute an innocent man, apparently abandoning its initial arguments to the contrary.” The state’s most recent argument, the judge said, was that he should simply reject Davis’s claim of innocence on the merits, and bypass the question of whether a court may ever recognize a claim of innocence as a bar to execution. The judge said he had spent significant time and effort on the innocence issue, so would go ahead and decide it.

The judge appeared to divide the innocence issue under the Constitution into two parts: first, may a court ever recognize a new claim of innocence, separate from any flaws at the trial leading to the guilty verdict, as a basis for overturning a conviction, and, second, if such a claim is allowed, does it mean that an individual who successfully proves that he is innocent cannot be executed without violating the Eighth Amendment.

Examining the Supreme Court’s most significant ruling on a claim of innocence based on new, post-trial evidence — Herrera v. Collins in 1993, Judge Moore said it appeared that a majority of that Court would have recognized the authority of a court to hear and decide such a claim (even though it did not decide that finally), and intimated that proof of such innocence would make going ahead with an execution a violation of the Eighth Amendment. His own analysis of these “open” questions, the judge said, led to the conclusion that courts in habeas cases may consider such “free-standing” post-trial innocence claims and, finding innocence, order the individual released — and exempt from execution.

The judge reasoned that, if a person can show innocence despite the jury verdict, that means that the person has “a total lack of culpability,” and such a lack bars capital punishment. The judge went on to note that, since the Herrera case was decided, 47 states and Washington, D.C., have passed laws that were designed to help innocent convicts prove that their convictions were erroneous. That, he found, contributes to a developing social consensus that executing an innocent person would be unconstitutional. “If states were not concerned with preventing punishment of the wrongfully convicted, it would be difficult to understand why they would allow validly convicted persons avenues with which to secure evidence of their innocence,” he wrote.

After drawing that Eighth Amendment conclusion, Judge Moore proceeded to analyze how much proof of innocence would demonstrate “actual innocence.” He noted that Davis’s lawyers had proposed a standard that innocence could be found based upon proof of “a clear probability that any reasonable juror would have reasonable doubt about his guilty,” with “clear probability” meaning a 60 percent chance. By contrast, the judge noted, the state of Georgia proposed that innocence could be found only if “no rational trier of fact could find proof of guilt beyond a reasonable doubt.”

The judge resolved the dispute by ruling that, to establish a claim of actual innocence, a person previously convicted at a fair trial “must show by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence” that was developed after the trial. The judge then applied that to the new evidence upon which Davis’s lawyers had relied in claiming that he was wrongly convicted.

When Davis’s lawyers took his challenge directly to the Supreme Court last year (with a plea for an “original” habeas writ), after failing several times in lower courts, they claimed that seven of the nine witnesses who had testified at the trial that Davis was the killer have since recanted their trial testimony, saying they were coerced by police or were subjected to questionable interrogation tactics. The attorneys also contended that new evidence showed that another man at the scene — Sylvester “Redd” Coles — had killed Officer MacPhail.

Judge Moore devoted 40 pages of analysis to the new evidence offered by Davis’s defense lawyers, and found it did not meet the standard the judge had imposed. “Mr. Davis,” the judge concluded, “vastly overstates the value of his evidence of innocence.” The judge rejected the claims of two eyewitnesses that “Redd” Coles was the shooter, saying their identifications “are not credible,” and, in addition, there was no corroboration of the claim. The judge dismissed other new evidence as “too general to provide anything more than smoke and mirrors.”

The judge found that, of seven claimed recantations of trial testimony, only one was “a meaningful, credible recantation,” but it was diminished because “it only confirms that which was obvious at trial — that its author was testifying falsely.”

“Ultimately,” the judge concluded, “while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.” The judge thus denied Davis’s plea for a habeas writ. “The Clerk of Court,” the judge wrote, “is directed to file a copy of this order on the docket and forward this order to the Supreme Court of the United States.”

The route that Davis’s lawyers may take from this point on, the judge indicated, is not clear. The judge said he was not sure of “the jurisdictional effects” of a Supreme Court order transferring a case from its docket to that of a District Court to gather evidence. Citing a federal law on habeas law, Judge Moore said it suggested that habeas petitions filed directly in the Supreme Court are transferred to a District Court “to avoid burdening the Supreme Court. Functionally, then, this Court is operating as a magistrate for the Supreme Court, which suggests appeal of this order would be directly to the Supreme Court.” The judge added, however, that he had been “unable to locate any legal precedent or legislative history on point.”

Presumably, the defense lawyers for Davis either could file a petition in the Supreme Court to review Judge Moore’s decision, or they could pursue an appeal to the Eleventh Circuit Court, or perhaps they could attempt both, just to be sure.

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Interesting procedural death penalty case…

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Innocence claim rejected: Troy Davis loses challenge”

The title of this post is the title of this terrific synopsis by Lyle Denniston at SCOTUSblog of a big death penalty ruling handed down today. Here is the start of the post along with links to the looong ruling the post discusses:

Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot. In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent.” Treating the case as an unusual one procedurally, Judge Moore said it appeared that he was acting as a fact-gatherer directly for the Supreme Court, so any appeal by Davis may have to go directly to the Justices. He sent a copy of his ruling to the Supreme Court.

(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II. Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)

A year ago, the Supreme Court sent Davis’s latest challenge — one filed directly with the Justices — to the District Court in Georgia “for hearing and determination.” The order said that the lower court should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.” The Justices’ unsigned order, issued over the dissent of Justices Antonin Scalia and Clarence Thomas, was apparently approved on a 6-2 vote (Justice Sonia Sotomayor took no part in it.) It was a highly unusual action because the Court does not often order fact-finding by a trial-level court; it more often pronounces the law and then leaves it to lower courts to implement such a ruling. The dissenters called the action an “extraordinary step — one not taken in nearly 50 years.”

Judge Moore closed his opinion by noting that he had carried out the Supreme Court’s mandate by holding a hearing and now ruling on Davis’s habeas challenge. “This Court,” he wrote, “concludes that executing an innocent person would violate the Eighth Amendment to the United States Constitution” — a point long hinted at but not yet specifically decided by the Supreme Court. However, the judge went on to reject Davis’s claim of innocence, summing up: “The evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.”

In a footnote, the judge added that “while the state’s case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail’s murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system.” (The judge may have meant “wreak,” not “wreck.”)

August 24, 2010 at 04:04 PM | Perm

Interesting concept…..

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Miller on Allowing Defendants to Present Evidence They Rejected Favorable Plea Bargains

Colin Miller (John Marshall Law School) has posted Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains. Here is the abstract:
Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.
August 23, 2010 | Permalink

Do overs rarely favor defendants…watch out Rod!

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A single juror refused to convict former Illinois Gov. Rod Blagojevich of trying to sell Barack Obama’s old senate seat after the 2008 election. The other jurors grew increasingly frustrated as it appeared she could not be swayed during the two weeks of deliberations, and one juror even considered telling the judge the woman was deliberating in bad faith. That juror is also refusing to talk to the press. Her influence led to deadlock on several other counts. Experts said it was unlikely that in the retrial the defense would be so “lucky,” as one juror put it, to get an “outlier juror.” Other watchers say that this time, prosecutors should call to the stand fundraiser Tony Rezko and consultant Stuart Levine to the stand, as they “know where the bodies are buried,” one expert said.