Category: Criminal Law


Scalito No More!

In today’s decision, U.S. v. Gonzalez-Lopez, Justices Scalia and Alito broke into separate camps on the issue of counsel choice. Scalia, writing (surely with contrarian joy) for the liberal majority, held that a court’s improper denial of an individual’s counsel of choice was a constitutional error requiring automatic reversal. Alito, dissenting – and not respectfully either! – argued that there was something wrong with the idea that a person could end up with a better lawyer than he’d have preferred, but still score a new trial.

I’ll post at a bit more length in a little while. But I thought it interesting to see these supposed doppelgangers divide so neatly. (And even more so to see a little attitude show through in the opposing opinions.)

Mind you, I’m not holding my breath.


Parole After Samson

Yesterday, in Samson v. California, the Supreme Court held that the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. Justice Thomas argued that prisoners are subject to suspicionless searches. And because, in his view, parole is essentially a prison sentence that continues on the outside, the state retains the right to continue those searches during parole. Thomas made a clear distinction between those on probation (who have greater privacy rights) and those on parole. Stevens, writing for Breyer and Souter, argued that this decision constitutes an expansion of police power because it allows, for the first time, suspicionless searches in the absence of governmental “special needs.”

The dissent correctly views the decision as a doctrinal shift, but it is only one more step in a lonstanding move towards a “common sense” (i.e., defendant unfriendly) approach to criminal justice. Frankly, the Fourth Amendment horse left the barn when Humphrey’s campaign against Dick Nixon fell short.

The more interesting questions for me involve the long-term implications of Samson. The dissent states that only one or two states allow searches of the type experienced by Samson. I have to think that most states wil now join the bandwagon. DA’s will rarely lose a Fourth Amendment suppression motion submitted by a parolee. Other than states with a special interest in parolee privacy – and I have yet to meet that state – I would expect most jurisdictions to encourage officers to conduct these suspicionless searches. (Will an officer have to know she’s searching a parolee? Or will she get the free-pass search so long as she has probable cause to believe she’s about to search a parolee?)

Samson also creates new incentives for DA’s at sentencing. There is now a clear distinction between probation and parole: only parolees are subject to suspicionless searches. A savvy DA will ask for sentences that involve long paroles rather than long probations. (Thus, for example, a defendant who had served nine months awaiting trial might get an indeterminate sentence like “9 months to 5 years”, rather than simply “time served plus five years probation.” On the flip side, perhaps this enhanced supervision will make parole boards (or judges) a hair more comfortable placing inmates back on the street earlier in their sentence. (I’m not holding my breath.)

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I recently finished David Feige’s new book, Indefensible: One Lawyer’s Journey into the Inferno of American Justice. I read it both because Feige is a former colleague of mine at the Bronx Defenders and because I’m always searching for materials that give law students a more realistic view of criminal law than, say, Kadish and Shulhofer, Criminal Law and its Processes (7th ed.) (For my juvenile justice course, I’ve settled on Edward Humes’s, No Matter How Loud I Shout: A Year in the Life of Juvenile Court.

Indefensible is an account of a day in the life of a Bronx public defender,with narratives of Feige’s professional career and other cases weaved throughout. It certainly captures many practical challenges of a public defender. In the Bronx, like Feige, I found much of my life – and a vast portion of my energy – dedicated to appearing in the right courtroom at the right time. On a given day, I might have had 15 cases in ten courtrooms; Feige fairly describes the difficulty of managing this chaotic calendar. He also nicely captures some strategies PD’s use to win over their suspicious clients.. Feige (improperly) delivers a fresh pack of cigarettes to a recently arrested client, winning him over instantly. (You wouldn’t show up at Aunt Marilyn’s house empty handed, would you? Well then…)

Feige also does a nice job of bringing out what I’d call the the micro-injustices in a criminal system. Most scholarship is focused on macroscopic issues: race disparities, over-incarceration, the failure of deterrence and overpunishment, and the like. But for the practicing lawyer, the system systematically treats all participants poorly and, in doing so, creates injustice on an hourly basis. There are defendants who wait all day, only to be sent home with a continuance at 5pm. Pre-trial detainees awakened at 5am and brought down to the courthouse for the convenience of a lawyer who doesn’t want to travel to the jail, but who needs to visit for 2 minutes. People who have warrants issued for their arrest because their lawyers never bother to listen to phone messages. And of course the innocent defendants who plead guilty simply to avoid missing one more day of work as the case is continued ad infinitum. Though Feige focuses mostly on defendants, they’re not the only ones who suffer. For example, many complaining witnesses sit for hours awaiting cases that never go to trial. This is the cost of mass criminalization on the cheap.

Criminal defense lawyers can be cocky SOB’s, sometimes, and periodically one gets that vibe from Feige. But his account is pretty true to life. And Feige – a curious mix of cowboy and social worker – is a lawyer worth emulating. Mostly.


A Small Step Closer to Knowing Who Killed Theresa Allore?

I blogged last week about my friend John Allore’s search over the weekend of the wooded site in Quebec province where his big sister’s body was discovered nearly three decades ago.

The search party did find some stuff — forensic value currently unknown — and drew lots of attention to this cold case and many others like it across Quebec and across Canada.

Here’s the follow-up article from the National Post. I found it quite moving, and not only because the guy on a quest is my friend.

(Incidentally, if I’m not mistaken, John is wearing a Carolina Hurricanes t-shirt in the photo, which appears today in the National Post. A gutsy move for a Canadian expat returning to Canada on the weekend of Games 6 and 7 of the Stanley Cup series between the ‘Canes and the Edmonton Oilers.)


Searching for Justice for Theresa Allore — And Other Candian Crime Victims

In the fall of 1978, somebody murdered my friend John Allore‘s big sister Theresa and left her body in the woods in Magog, Quebec. Police investigation at the time was shoddy, and rapidly came to a “blame-the-victim” conclusion.

Since 2001, John has been on a quest to solve his sister’s murder, often without much help from Canadian authorities.

Tomorrow he and a group of supporters will take the matter into their own hands once again, gathering to search the crime scene for traces of evidence that might remain.

Their do-it-yourself search is drawing significant attention north of the border — not just to Theresa’s murder, but to other “cold cases” and to the frustrations of Canadian crime victims and their families in their dealings with the Canadian criminal investigation bureacracy.

The National Post has a very good article about it that you can read by clicking here.

Best of luck to John and his fellow searchers tomorrow.


The Problem Of Jury Override In Capital Cases

The ABA death penalty assessment for Alabama highlighted several serious concerns regarding the role of the jury in capital cases. First, judges can override jury recommendations of life. Second, a 10-2 vote – two short of unanimity – is sufficient to support a death recommendation. And, in a slightly different vein, surveys of jurors in capital cases suggest that these jurors are utterly confused about the applicable law. In this post, I’ll attempt to provide further analysis on the issue of jury overrides. (This is my fourth post about the ABA assessment. Others are here, here, and here.)

In Alabama, capital juries only recommend a sentence; the final decision on life or death belongs only to the judge. Alabama is one of only four states that allow a judge to sentence a defendant to death when a jury has rejected this sanction and imposed life. (Some people thought that Ring v. Arizona ended this practice, when it provided that juries – not judges – must find aggravators beyond a reasonable doubt. Because of the structure’s of Alabama’s death statute, however, Alabama courts have thus far upheld Alabama’s override statute.) Of these four states, Alabama is the only jurisdiction that selects judges in partisan elections. Jury override is designed to allow judges to regulate the use of death to insure that the punishment is not imposed arbitrarily or unfairly.

It turns out that in Alabama, 90% of all judicial overrides of jury verdicts impose death against the advice of the jury. Why is this?

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Death In Alabama: The Problem Of Indigent Defense

One of the most cutting critiques of Alabama’s death penalty system is that many defendants – and probably most – do not receive the miminal quality counsel one might expect in a case involving life or death. It has long been my view that society should aspire to provide indigent criminal defendants the sort of quality representation that our corporations expect. Or to put it a different way, I believe that indigent lawyers should be good enough that a sophisticated consumer of legal services would entrust the fate of his or her son or daughter to such attorneys. Unfortunately, Alabama’s indigent defense system falls far, far short of this goal.

In its recent Alabama death penalty assessment, the ABA team articulated three particular concerns about counsel in capital cases. First, the matter of qualifications. The only requirement of a lawyer appointed in a capital case – and the law only requires that one lawyer be appointed – is that he or she have five years of criminal defense experience. He or she need not be a full-time “criminal lawyer” – handling several criminal cases will suffice. And even this minimal requirement isn’t even always enforced. Why is this qualification too thin? Capital work is extremely high stakes and requires serious trial talent. But even more so, it requires a skill distinct from other criminal work: the ability to litigate the punishment issues of mitigation and aggravation. Mitigation in capital cases is exceptionally complex, requiring excellent interview and investigation skills, the ability to frame a compelling narrative (that looks very different from the guilt/innocence narrative), and a talent for understanding how to make guilt/innocence issues work in tandem (not conflict) with life/death issues. A general practitioner with some background in criminal cases won’t learn this stuff. Nobody would choose to have a cornonary bypass with a doctor who’d done a few heart surgeries, here and there. The same holds true with capital cases.

A second challenge is the state’s lack of training requirements. The amount of specialized training required of appointed counsel in capital cases? None. And when you have untrained defenders trying their first capital case all allone, that effectively turns capital defendants into guinea pigs.

Finally, there is the matter of compensation. Until 1999, Alabama capped fees in capital cases at $2000. Most people currently on death row were convicted under that cap. The limit has been lifted, and fees – meager as they are ($40/hour for out of court work; $60/hour for in-court) – can at least match the needs of an individual case. The same is not true on appeal, however, where fees remain capped at $2000. When you consider how long it takes simply to review a 1500 page trial record, one can only expect an appellate lawyer to do the most cursory job on these cases. And when it comes to post-conviction representation – state collateral challenges – Alabama offers even less. Alabama is one of only two states that does not guarantee counsel in these proceedings. A judge has the discretion to appoint counsel, but the fee cap is $1000.

As I am writing in a separate post, I think the answer to many of these challenges is a properly funded public defender. But at minimum, the state should follow the ABA’s recommendation that it appoint a statewide commission on indigent defense. The starting point for any fair and accurate death penalty system is provision of quality defense services. Indeed, such services are a precondition to a just capital punishment regime. Put simply, it’s a matter of good government.


Hill v. McDonough

Yesterday the Supreme Court decided Hill v. McDonough. In its unanimous opinion, authored by Justice Kennedy, the Court held that a death-row inmate could invoke section 1983 to seek an injunction against Florida’s method of three-drug lethal injection, which, the inmate contended, caused intense pain in violation of the Eighth Amendment.

The district court and the Eleventh Circuit had dismissed the inmate’s action on the ground that it was the functional equivalent of a habeas petition and, since the inmate had already sought habeas relief, the claim was barred as a successive petition.

In reinstating the inmate’s section 1983 suit, Justice Kennedy reasoned that the inmate’s claim was not a challenge to his actual sentence (the subject of a habeas petition) but only to the mode in which the state sought to carry it out.

Though the holding of the case is narrow, and the Court expressed no view on the merits of the Eighth Amendment claim, it’s rare to see a unanimous decision in a death penalty case.

More evidence perhaps that Justice Roberts’ magic dust is working.


Oprah, Suicide, Free Speech, and Torts

I am embarrassed to admit that I sometimes tape and later watch “Oprah” on t.v. I do not know that I am huge fan of her show, but I certainly find some of the guests she has on the show interesting. Anyway, Oprah said something last week that baffled me, as a legal matter. My responsive e-mailed to her GC drew no reply, so I come humbly to the blogosphere to see what you all might offer.

On one of Oprah’s shows last week, she interviewed the parents and sister of a 19-ish year old Florida State college student – very bright, very creative – who killed herself. The young-woman fed her kittens and cleaned her apartment, and then went to a hotel, took some variation of cyanide, and died. Before she left this earth, she sent a timed-delayed e-mail to her parents, starting off with a sentence along the lines of “As you probably know by now, I have passed away….” (The e-mail explained that she had struggled with depression, and she basically found the struggle futile.) I believe she also sent an e-mail to a friend and to the police, so that they would know where to find her body.

Though the story is tragic in and of itself, an overwhelmingly sad aspect of the story is that this young woman found information on the internet that helped her execute her suicide plan and some might say encouraged her to or at least coached her regarding following through. Specifically, she had been frequenting a “pro-choice” suicide blog (or chat board or message board or some such – allow me to say “blog”). (The pro-choice phrase came from the show.) It seems that the young woman was able to glean technical information about how to kill herself or links to information on what, specifically, to do kill herself from that blog. Worse, I believe her parents or Oprah said that this young woman was posting regularly on the blog to update the blog readers and posters about her two-week countdown to killing herself. One person on the blog actually helped her craft her final e-mail to her parents. Dear God.

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