Category: Criminal Law

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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)
Articles

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672

 

Comments

Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794
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Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

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Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”

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Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

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Jeannie Suk on Teaching Rape

In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.

Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.

I don’t want to entirely discount Suk’s assessment of modern criminal law teaching, but my experience has been radically different.  Since I started teaching in the Fall of 2007, I have taught twelve sections of Criminal Law and seven semesters of a Sex Crimes elective I have designed. I have probably taught 750 1L students in Criminal Law  and about 150 in Sex Crimes. In Criminal Law, I have never had a single complaint from a rape victim or person otherwise affected by sexual violence. In fact, I have received numerous anonymous reviews, emails, and comments in person from students thanking me for teaching about rape. This has been true at Kansas, in Chicago at John Marshall, and during my semester visiting at Iowa. After class discussions, students have often come to my office to share their personal experiences with sexual violence. Sometimes, they tell me stories that have just happened in the past couple of months. I am certain that if I didn’t teach rape in the classroom, those students wouldn’t feel comfortable coming to talk to me in private. A major theme of my classroom discussions of rape is that the dysfunction of America’s sex crime laws is due our failure to discuss the subject. And while I do my best to create a healthy learning environment, we do not shy away from the tough legal and social dimensions of sexual violence.

In my experience, it has been a net positive learning and personal experience for victims I have spoken with to have rape as part of the 1L Criminal Law curriculum. It has been beneficial much like when I had a student in a class who had experienced unfathomable trauma with a family murder. A few years previous to being in my 1L Criminal Law class, this student’s mother had killed his father. She was found guilty and sentenced to lengthy period of incarceration. He came and talked to me about it after we started our section on homicide, became my best RA, and I still keep in touch with him. I can’t speak with certainty as to Harvard students, but my experience has been that 1L Criminal Law has helped traumatized students deal with the violence and difficulty in their past. And, in doing so, many have found greater purpose and direction in their law studies. Some have harnessed that purpose to dedicate their legal careers to addressing the social ill that had previously plagued their lives. If Suk’s concern is with the victims of sexual violence, I hope she doesn’t give up teaching about it.

Of course, my experience might be atypical or I might be overstating the positives that have come from my classes. So, I welcome comments from other professors and will forward this post to some KU students to see if they want to chime in anonymously.

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Worst Modern Court Opinion in Criminal Rape Case?

For the coming semester, I have decided to try teaching without a casebook. Instead, I have been putting together materials with an emphasis on more recent cases embodying prominent issues in substantive criminal law. Regarding rape and sexual assault, in particular, I feel that the cases used in the major casebooks are too dated and less relevant to students today. So, in my search for new cases, I stumbled across an appellate court opinion out of Louisiana in 2005, State v. Wilbert Touchet, Jr., 897 So. 2d 900 (La. Ct. App. 2005). I think this is has to be the worst reasoned opinion regarding rape I have seen by an American court in the last thirty years. The basic facts, as described by the appellate court were: “The State of Louisiana alleges that the Defendant struck the victim with his fists, forced her to remove her clothing at knife point, and had sexual intercourse with the victim against her will.” Yet, despite a guilty verdict at a bench trial, the appellate court reversed the aggravated rape conviction and found insufficient evidence for the lesser included offense of forcible rape (The court’s reasoning after the jump).

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What is a Prosecutor’s Duty?

The Brown and Garner cases lead me to ask this question:  Suppose I am a prosecutor and I conclude that a police officer is guilty of a crime, but I also conclude that no jury will convict given the evidence.  What should I do?  The most straightforward thought is that I should not bring a charge.  It would be irresponsible to charge someone when you feel sure that you cannot win a conviction (I’m equally sure that prosecutors do this all the time and hope to get a plea, but leave that aside).

On the other hand, can public opinion on these issues be changed without some trials of police officers?  In other words, could a prosecutor say something in private like, “I know that a jury probably will not convict, but we need to bring a charge to express the view of a minority of the community that this sort of conduct is intolerable.”  Is that an appropriate action?  Would that just be grandstanding?

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The Garner Case

I’m not a criminal law expert, of course, but I thought I would start what amounts to an open thread on the Garner case.  Here is my question:  Can the decision by the grand jury not to indict be defended?  If so, how?

I’ll add one qualification.  A perfectly fine answer to my question is that the grand jury had before it exculpatory evidence that we don’t know anything about.  Since there is no way to disprove that assertion (given that these grand jury proceedings are still secret), let’s assume for the sake of argument that what is in the public record is all of the relevant evidence.  Discuss.

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Police Killing Unarmed Minority Men on Video with Impunity is not New

The grand jury’s decision to not indict a police officer in the death of Eric Garner despite video of the incident, in the wake of the failure to indict Darren Wilson, further illustrates the apparent immunity of police officers in cases where officers have killed ethnic minority Americans. The Garner case is a reminder that the interpretation of (crime) videos is filtered through pre-existing cultural lenses, but it also speaks to a more fundamental problem. The case provides more evidence that video has not been a panacea in addressing lethal violence by police officers, a fact which is relevant in discussing the likely efficacy of cop cams. I have posted other similar disturbing videos of lethal force being used against unarmed ethnic minority men (after the jump) wherein there has been no accountability in the criminal justice system for the officers involved.

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The Grand Jury in Ferguson

Up until now, I have not had anything to say about the events in Ferguson. I’m not an expert on policing or racial profiling, and sometimes you have to know your limitations. But I am fascinated by the deliberations of the grand jury, which are a throwback to another time.

The most common phrase that goes with “grand jury” nowadays is “ham sandwich.”  Not so here.  Ordinary citizens are carefully considering whether an indictment or “true bill” should issue in a controversial case.  This is what the Framers had in mind when they wrote the grand jury into the Fifth Amendment, and they were drawing on a rich colonial and British tradition of grand juries shielding people from wrongful accusations or expressing the community’s view on a criminal prosecution.

The trouble now is that this only works when the case reaches an astronomical level of visibility.  In ordinary cases, an information is at least as good, if not better, at serving the functions of a grand jury (especially when combined with some form of prosecutorial accountability.)  This may explain even ardent supporters of incorporation seem uninterested in reversing Hurtado and making the grand jury requirement applicable to the states.

 

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California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.