Category: Criminal Law

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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.)

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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.

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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.

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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.

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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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Death Penalty Moratorium In Alabama? Critical ABA Panel Says Yes

Sunday, the ABA issued the Alabama Death Penalty Assessment Report, an extensive study of the state’s capital punishment system. The report was prepared by a team of Alabama lawyers that included a sitting DA, a former federal magistrate judge, a state legislator, a former president of the Alabama State Bar, and several lawyers in private practice. (I chaired the team.) It was critical of many aspects of the state’s death scheme including the quality and scope of indigent defense counsel, inadequate proportionality review, a failure to address serious juror confusion about legal standards, and the ability of judges to override jury imposed life sentences. The committee (with one dissent – the sitting district attorney) called for the state to adopt a moratorium on the death penalty pending significant improvements in the state’s system. The executive summary is here; the complete 265 page report is here. An op-ed I co-authored with Michael Greco, the ABA President, is here.

I plan to blog about different aspects of the assessment over the course of this week. Suffice to say, as a starting point, that the study contains a good deal of bad news about the fairness of the state’s scheme. One of the most troubling things that surfaced in our work was the fact that the state’s capital system has eluded serious study for so long. Unlike some other states, few individuals or organizations have conducted extensive research on it. The state engages in fairly limited data collection as well. As a consequence, we were somewhat limited in our ability to provide a complete snapshot of the system.

In many respects. this report is best designed to start – rather than end – serious scrutiny of capital punishment in Alabama. Among other things, the assessment compiles a host of details about the state’s capital punishment laws and procedures. We hope that this compilation will not only assist researchers and policymakers, but criminal lawyers as well.

UPDATE: I will try to link my subsquent posts here. Tuesday’s related posts are here and here. Wednesday’s related post is here.

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Update on Plea Bargains and Prediction Markets

In Let Markets Help Criminal Defendants, I wrote that “If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients.” I still think this is a good idea, but someone suggested a serious problem that would have to be remedied for the scheme to be possible.

Right now, prediction markets bets on judicial events, like the conviction of Lewis Libby (whose graph is to the right), pay off at 100 for conviction, and 0 for any other ending of this set of charges, including a plea. This creates noise which renders them useless for criminal defendants looking to see if they ought to plea. That is, as I didn’t fully appreciate before, traders must be estimating the probability of conviction, tempered by the likelihood of a plea – prices are lower than the actual market estimate of a guilty verdict independent of a plea. That is, if the current price of Libby’s “stock” is .40, that means that incarceration is not 40% likely. It means that traders think it is 60% likely that Libby will win at trial, receive a mistrial, obtain a dismissal, be granted a pardon, or plea. I imagine that the likelihood of a plea accounts for a large percentage of this figure.

If traders thought that conviction prices affected defendant behavior, then presumably they’d seek to put in sell orders at prices above those where rational defendants would plea. This would put downward pressure on price and make the entire system useless from defense counsel’s perspective.

For my system to work, you’d have to exclude the possibility of a plea (i.e., nullify all bets if there is a plea). Of course, this still would create some dynamic tension, as bettors presumably would become eager to invest time and trade only as pleas become less likely – near trial, or in jurisdictions, like Philadelphia, where the District Attorney has a no-plea policy. But the resulting prices would be more informative than those offered by the current system.

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Let Markets Help Criminal Defendants

ballandchain.jpgDan’s interesting post on plea bargaining made explicit the informational inequalities faced by criminal defendants and their lawyers. Indeed, one of the advantages public defenders have over private defense counsel is that they can more easily share information internally about the informal norms that “really” govern the system (judge sentencing practices; which cops tell what stories; which labs are sloppy; etc.) But even so, the instruments of law and order almost always will know more about the facts and the law than the defense, at least until the eve of trial and probably throughout the process.

That there are exceptions (Enron; OJ) proves the rule that informational asymmetry is a significant part of the prosecutor’s arsenal – indeed, this asymmetry justifies constitutional attempts to remedy the problem through mandatory discovery procedures. But I’m skeptical that legal rules alone are a panacea to structural problems. Why not try markets?

To be more concrete, the major decision that criminal defendants face is whether or not to plead guilty. The decision depends on a prediction about what will happen at trial. Assuming that defendants are risk averse, they will take pleas when rational actors would not, but generally will go to trial when the expected time served post-trial is less (by some margin) than the actual time proposed in the plea agreement. The problem is that (1) defendants are unsophisticated; (2) defendants’ lawyers are incented to push pleas; and (3) neither defendants nor their lawyers have as much information as prosecutors about likely verdicts.

If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients. Prediction markets did a fantastic job in the Enron trial. At the beginning of the trial, the odds of conviction were about 50% for each defendant; by the end, the odds were significantly higher. Now, I can understand why neither defendant would have pled facing a coin-flip’s chance at conviction. As I argued at the beginning of the trial:

I’d guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate.

But for most criminal defendants, 50% odds would translate into a pretty hefty expected sentence that might make a plea more attractive. And, assuming that such markets would be sufficiently liquid, the predictions generated by traders ought to be both more accurate and less prone to bias than defense counsel’s odds. I imagine that the result would be a net decrease in pleas, and in the long term, as prosecutors reacted, less net jail time. That is, the current system is biased by risk aversion and agency problems – as others have observed – toward more jail. This effect may serve the forces of law and order, but it doesn’t necessarily serve the search for truth. Why not try something different?

Obvious objections: (1) the idea is “”utterly repugnant to a civilized society“; (2) thin markets are prone to manipulation; (3) incentives would increase to violate the attorney-client privilege; (4) it would look like public defenders are selling out their clients. Of these objections, I’d be most worried about #3.

Incidentally, if you are interested in thinking more about criminal law and the Enron trial, the Conglomerate is hosting what promises to be a great forum on the topic for the next two days. Check it out!