“California state bar to investigate 130 prosecutors following misconduct study by Innocence Project and Santa Clara law school”

John Steele has this post at Legal Ethics Forum. In part:

I expect we’ll hear a lot more news about this, that the prosecutors will fight back, that the prosecutors will feel that old matters that were argued years ago shouldn’t be the basis of discipline charges, and so on.   But this move by the bar seems quite deliberate and planned out, and I expect they’ve thought through a lot of the issues.  We’ll see.  I’d also expect that at some point more prosecutor offices will adopt “open file” policies simply out of self-protection.

DOJ to continue to prosecute drug crimes regardless of California vote: AP
Brian Jackson at 1:07 PM ET

[JURIST] US Attorney General Eric Holder [official website] has said the Department of Justice will continue to enforce the Controlled Substances Act (CSA) [materials] in California even if a state ballot measure legalizing marijuana passes in November, according to a Friday report [text] by the AP. The measure, Proposition 19 [text, PDF], would legalize the possession of less than one ounce of marijuana for those over the age of 21. Holder reportedly made the comments in a letter to former heads of the Drug Enforcement Administration (DEA) [official website]. Proposition 19 initially received strong support, however recent polling indicates that a majority of Californians would vote against its passage [Ipsos poll summary]. Marijuana is a Schedule I drug [DEA drug schedule], meaning it has no medically accepted use, it has a high potential for abuse and it is not considered safe for use, even under supervision. Under federal law, it cannot legally be prescribed by a doctor.If Proposition 19 is approved by California voters on November 2, California would become the first state to legalize the possession and growth of marijuana. California had previously decriminalized possession of less than one ounce of marijuana under State Senate Bill 1449 [text]. Decriminalization is the process of reducing the punishment for possession of marijuana from a misdemeanor with the possibility of jail time to civil fines and/or mandatory drug education programs. In addition to California, Massachusetts, Oregon, and 10 other states [Boston Globe reports] have decriminalized possession, as has the city of Denver, Colorado.

Hafemeister on Intimate Partner Violence

Thomas L. Hafemeister (University of Virginia School of Law) has posted If All You Have is a Hammer: Society’s Ineffective Response to Intimate Partner Violence on SSRN. Here is the abstract:

After millennia of condoning and even encouraging intimate partner violence (IPV), during the past few decades society has increasingly and appropriately condemned this violence and adopted multiple measures, most of them involving the criminal justice system, to limit, control, and remediate it. Considerable resources have been devoted to this effort, but the success of these programs is mixed at best. While there has been some diminishment in the overall prevalence of IPV, this likely can be attributed more to society’s somewhat improved attitudes regarding this violence than to the direct impact of these measures. The number of individuals suffering from IPV and the magnitude of its adverse consequences continue to remain staggering.

Critics of society’s response to IPV often argue that various provisions of domestic violence laws such as mandatory reporting, mandatory arrest, and no-drop policies have led to an “over-reliance on criminal strategies.” Moreover, the adoption of these measures has been driven by a few widely publicized cases. These notorious cases tend to be relatively “easy” ones where culpability and an apparent appropriate response is readily deduced in retrospect, but too great a focus on a few cases has resulted in what tends to be a one-size-fits-all approach that fails to adequately address the complexity of IPV and the range of factors and behaviors associated with it.

This societal response can be counterproductive if it fails to adequately distinguish among or provide sufficient latitude, flexibility, and nuance for responding to the various types of IPV, as well as the diverse needs, desires, and circumstances of the victims. For example, exclusive reliance on a traditional criminal justice approach, without also empowering the victim, can diminish the victim’s feelings of self-worth and increase the victim’s isolation, dependence, and vulnerability. This is not to say, however, that traditional criminal justice remedies have no place: when an injured victim has been rendered isolated and dependent or otherwise unable to exercise their autonomy as a result of IPV, the protection and safety that can be afforded by the criminal justice system should be readily forthcoming. Additionally, the nature of the abuse and the characteristics and motivations of the abuser should be taken into account when devising a remedy. Mandatory criminal justice intervention is generally appropriate when the abuse reflects a systematic, terrorizing violence perpetrated to maintain control over the victim, but an alternative victim-directed approach tends to be better suited when the IPV involves a relatively isolated outburst of mild violence linked to circumstances that are relatively unlikely to be repeated or can be readily avoided.

In general, more emphasis needs to be placed on assessing the nature and causes of a given case of IPV and the characteristics of the parties involved. For example, an assessment should be made of whether victims understand their predicament, whether they are unable to exercise their autonomy because of isolation or dependence, and whether they have access to adequate remedial options before deciding whether the autonomy of the victim should take priority or interventions should be imposed over the victim’s objection. This approach would empower victims whenever possible to make their own choices about whether to invoke society’s assistance, educate them about the services that are available, and acknowledge that cases of IPV vary considerably and require an individualized response, while still providing protection to victims who are unable to help themselves.

Once this assessment is completed, there should be a range of programs from which to select – including a greater number of education, treatment, and rehabilitation programs – that better respond to the needs and risks particular to the individuals involved. A failure to respond appropriately to such disputes can overlook significant dangers, but can also solidify conflict and convert what could have been a temporary disagreement into a relatively intransigent one from which long-term adverse consequences result. For some cases of IPV, a more graduated, measured, inclusive, and individualized approach may better defuse an otherwise explosive situation and avoid many of the adverse short- and long-term consequences that can otherwise result.

In crafting the societal response to IPV, it should be recognized that IPV is a complex phenomenon for which the most appropriate and effective response can vary considerably. While intimate partner violence should under no circumstances be condoned, a more enlightened understanding of IPV and the factors that contribute to it can lead to a more rational, nuanced, and efficient use of society’s resources to combat it.

October 14, 2010 | Permalink

Potent new report about prosecutorial misconduct in California”

Doug Berman at Sentencing Law and Policy excerpts this article from the National Law Journal headlined “Prosecutorial Misconduct Is Rarely Punished, Says New Study.”

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.

Among the 707 cases, only six prosecutors — 0.8% — were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors….

The report is available here.

October 5, 2010 | Permalink

Pinard on Collateral Consequences of Convictions

Michael Pinard (University of Maryland Law School) has published Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignityat The Legal Workshop. An excerpt:

While collateral consequences have always accompanied criminal convictions in the United States, their impact expanded dramatically during the 1980s and 1990s as part of the War on Drugs. And while these consequences have long been considered an afterthought in the criminal justice system, they have recently garnered increased attention, in large part because of the record numbers of individuals—recently eclipsing 700,000 per year—now exiting U.S. correctional facilities and returing to communities across the country. As a result, reentry—or, more accurately, mass reentry—has reached a critical point in the United States. The numerous collateral consequences that attach to convictions frustrate reintegration for both individuals and whole communities.

October 7, 2010 | Permalink

“Brady violations by DPS fingerprint examiners? Is fingerprint examination even science?”

An interesting post over at Grits for Breakfast. In part:

Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn’t agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, “Have you ever heard of Brady v. Maryland?,” which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense  before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.