The Wire…..

Alafair S. Burke (Hofstra University – School of Law) has posted I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.

To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.

ET Tu Brute….

“USA Today exposes a “pattern of serious, glaring misconduct” among federal prosecutors”

That’s the post by Doug Berman at Sentencing Law and Policy, which extensively excerpts this article, which Doug accurately characterizes as “potent and disturbing.” From the piece:
Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses. Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.
September 23, 2010 | Permalink

You have the right…or do you?

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

Make sure you ask the right questions….

The trial court erroneously failed to ask potential jurors if they understood and accepted four basic constitutional guarantees afforded criminal defendants at trial.
The Illinois Appellate Court, 4th District, has reversed the armed robbery conviction of the defendant, Ahmed A. Yusuf. Champaign County Circuit Judge Thomas J. Difanis presided in the trial court.

In October 2007, Yusuf was convicted of armed robbery. The conviction was affirmed in November 2008. The Illinois Supreme Court denied the defendant’s petition for leave to appeal but issued a supervisory order directing the appeals court to vacate its order affirming the conviction and reconsider the case.

On reconsideration, the defendant argued that the procedure used by the trial court during voir dire failed to allow the venire an opportunity to respond to or be questioned about the juror’s understanding of the four basic constitutional guarantees afforded to criminal defendants at trial.

The appeals court cited a 1984 Supreme Court case, People v. Zehr, 103 Ill.2d 472), holding that a trial court erred during voir dire by refusing defense counsel’s request to ask questions about the state’s burden of proof, the defendant’s right not to testify and the presumption of innocence.

The Supreme Court then amended its Rule 431(b) to assure compliance with its decision in Zehr. The rule provides that a trial judge “shall” ask jurors, “individually or in a group,” if they understand and accept the constitutional guarantees. The rule also provides that the court “shall” provide each juror an opportunity to respond to specific questions about the principles.

During the voir dire in this case, the trial court discussed the constitutional principles but didn’t fully comply with Rule 431(b). “While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four principles during voir dire,” the appeals court said. “As a result, the court … did not follow the mandate of Rule 431(b) and this failure to comply constituted error.”

The appeals court said the jurors in this case were never asked whether they understood and agreed that the defendant was not required to offer any evidence and that his failure to testify could not be held against him. The appeals court said a defendant’s right not to testify is possibly “the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept.”

While the trial court in this case advised the venire en masse or the Zehr principles, it didn’t pose specific questions of whether the jurors understood and accepted any of those principles, the appeals court said.

The appeals court said the trial court’s failure to fully comply with the amended version of Rule 431(b) caused a “complete breakdown of the judicial process that undermines this court’s confidence in the jury’s verdict.” The court’s error was so substantial that it affected the fundamental fairness of the proceeding and denied the defendant a substantial right — a fair trial, the appeals court said.

The appeals court reversed the trial court and remanded the case for a new trial.

People v. Ahmed A. Yusuf, No. 4-08-0034. Justice John T. McCullough wrote the court’s opinion with Justice Sue E. Myerscough and James A. Knecht concurring. Released April 13, 2010.

Maybe someone is listening….

PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.

It was an easy decision, said Mr. Williams, who took office in January promising changes that would reduce prosecutions but increase the conviction rate. Now he also spends hours each week visiting schools, exhorting students to graduate.

Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.

“This is like a breath of fresh air,” said Ellen Greenlee, chief of the city’s public defenders, who described the previous district attorney’s approach to charging suspects as “throw everything against the wall and see what sticks.”

Mr. Williams, the first black district attorney in the history of Pennsylvania, is a 10-year veteran of the office he is now shaking up. He looks younger than his 43 years and is happy for junior staff members to call him Seth.

In private and public appearances, Mr. Williams repeats practiced lines from a justice-reform movement that has taken hold in places like New York, San Diego and San Francisco and promotes, for lesser offenders, community courts and drug treatment rather than trial and prison.

“Crime prevention is more important than crime prosecution,” he said repeatedly last week as he rode from one event to another. “We need to be smarter on crime instead of just talking tough.”

“I’ve put my money where my mouth is,” he added in an interview, by redirecting his overstretched resources toward a more careful selection of cases and starting a computerized study of prosecutions to see why they so often fail.

But the real test of public support for Mr. Williams’s new directions, Ms. Greenlee and other legal experts said, may come if there is a surge in high-profile killings or the killing of a police officer by a repeat offender. Violent crime has fallen here in recent years, but of the 10 largest cities in 2009, Philadelphia still had the highest murder rate.

“We need to focus on the people who are shooting people,” Mr. Williams said of the newly lenient penalties for marijuana. Senior court officials said the shift would avoid 4,000 costly trials a year.

The only public condemnation came from Mr. Williams’s predecessor, Lynne M. Abraham, who during 18 years as district attorney sounded an increasingly hard line on crime. Ms. Abraham criticized the new marijuana policy, saying that “the drug cartels who import pot from Mexico are thrilled.”

While the drug shift caught the public eye, legal experts said the changes Mr. Williams was making, especially in the unit that decides what charges to file against those who are arrested, are far more important.

Previously, the charging unit included five lawyers, usually junior lawyers who were encouraged to file the widest and harshest charges they could, Mr. Williams said. Now the unit has 18 more experienced lawyers, who spend time considering what charges can realistically succeed. The office is also offering plea bargains earlier in the process, again to clear the courts for more serious cases.

“The new D.A. is one part of a sea change that is occurring in criminal justice in Philadelphia,” said Seamus P. McCaffery, a State Supreme Court justice.

The drive to streamline the justice system became easier, Mr. Williams and Justice McCaffery said, after an investigative series by The Philadelphia Inquirer last December found that the city had failed to obtain convictions in two-thirds of cases involving violent crimes, and that thousands of cases were dismissed because prosecutors were not prepared or witnesses did not appear.

Ms. Abraham, the former district attorney, who is now in private practice, called the articles misleading and said it was wrong to “do justice by the numbers.”

On one recent morning, Mr. Williams spoke to loud applause at the high school graduation at Freire Charter School.

“Why am I spending time here?” he asked. “Of the 75,000 people arrested each year for crimes in Philadelphia, what is the one thing they have in common? They didn’t graduate from high school.”

He described his own origins, saying they could easily have left him a street thug. When he was born in 1967, he went from the hospital to an orphanage; he does not know anything about his biological mother and said he was not interested in learning.

He spent time in two foster homes before being adopted, at 18 months old, by a middle-class black couple whom he credits with instilling a sense of civic duty. His father was a schoolteacher who also worked evenings at a recreation center, and his mother was a secretary.

As he congratulated the graduating seniors, he told them about a personal failure: He got into West Point, but had to leave in his first year when he failed math and chemistry.

He switched to Pennsylvania State University, where he was elected head of the Black Caucus and then the student government. He attended Georgetown Law School and started as an assistant district attorney under Ms. Abraham. Chafing at what he saw as a dysfunctional system, he resigned to run against her, unsuccessfully, in 2005.

The Philadelphia district attorney’s office was a stepping stone for the likes of Senator Arlen Specter and Gov. Edward G. Rendell, but Mr. Williams declined to speculate about his future.

Eugene J. Richardson Jr., one of the legendary Tuskegee airmen of World War II and a retired school principal, said he hoped the changes sought by Mr. Williams would pan out, adding, “So often the new broom comes in and then gets stuck in a corner.”

Parents beware…..

Condoning Bad Behavior

William Damon is a professor of education and director of the Center on Adolescence at Stanford University. His books include “The Moral Child,” “The Youth Charter” and, most recently, “The Path to Purpose.”

Parents who sanction teenage drinking parties are making a huge mistake. These parents are encouraging the very behavior they are attempting to control. Even worse, they are communicating disrespect for legal authority to young people who are just forming their attitudes about how to behave in society.

A parent’s first message must be that we are obliged to obey the law.
Laws on underage drinking in this country are clear. A parent certainly has the right to disagree with these laws; and discussions about such disagreements with children can foster critical thinking and civic awareness. But the parent’s first message to a child must be that we are obliged to obey our society’s laws even when we disagree with them.

At the same time, legal enforcement of social host laws should be used sparingly as a last resort. It’s heavy-handed, intrusive, and risks undermining relations between parents and children.

Read more…

Stolen property….

Green on Possession of Stolen Property

Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
June 17, 2010 | Permalink