Category: Criminal Procedure


A JAG blogs about creating law in Afghanistan

Afghanistan Here’s an excerpt from a fascinating post on the blog of a JAG officer in Afghanistan, about the ongoing process of instructing Afghan army officers (in this case, military judges) on legal principles:

One day we met with COMA – the Court of Military Appeals. That was a very productive meeting and at the same time a very frustrating meeting. We had spent the morning talking about how in order for the prosecutors to learn how to better prepare and present a case, they need to be allowed to make mistakes. The judges agreed with this idea. In the past what has happened if COMA has not liked an outcome, they have sent the case back to be retried. Not only is this a violation of the principle of double jeopardy, it has no effect of establishing any form of case law, of which the Afghans have none. Anyway, as we talked about this issue in the morning session, the judges all seemed to realize that if the prosecutor made a mistake and the accused was found not guilty, they needed to uphold the finding of the basic court. Well in the afternoon session we were talking about appeals and the role of the appellate prosecutor. I was sort of not paying attention, (No, I was not sleeping, I was just thinking of something else that involved warm beaches, clear water and blue skies – I’ll be writing about that sometime in the future so stay tuned) when one of the judges made a comment that brought me back to reality.

I gave them a scenario where the prosecutor failed to prove his case and the defendant was found not guilty. The prosecutor, in my example, appealed the case. I then asked the judges what they would do. They were all in agreement that they would send the case back to the basic court with instructions to the prosecutor to fix the problem, retry the case so the defendant could be convicted. You can imagine the stir that caused among the mentors. We thought we had made such great progress in the morning, getting them to agree that they needed to NOT do that very thing and now we were back to where we had been. We tried to explain the problem with this but they said that their law allowed them to do that very thing. As Paul and I started looking for that particular provision – which we never found by the way – they explained that since a crime had been committed, some form of punishment needed to take place. Just as an aside, their law allows them to hear the evidence all over again but at their level. It does not say anything about sending it back to the basic court and prosecutor. When we brought up this point it seemed to fall upon deaf ears. Unfortunately we never did resolve this issue and I’m afraid that it won’t be resolved for some time to come.

It’s a fascinating account of some of the problems that these lawyer-soldiers face as they try to help establish some important legal principles. They’re trying to develop the rule of law — both as a legal and a cultural matter — in a legal environment lacking a rule of law tradition, and a without much in the way of case law either. Not a bad subject for a blog post.


Better than the real thing?

This lovely story about a man who not only impersonated a cop, but created a facsimile of a police station in which to interrogate suspects he apprehended, got me to thinking (apparently it takes a lot these days): What, exactly, are the limits of citizen law enforcement? I recall be fascinated by the idea of a citizen’s arrest as a child, and little investigation revealed the following. I’d be curious to know if any of you out there have first-hand experience with it.

According to the iWisdom aggregator, all states, except for North Carolina, allow citizens to make an arrest if they witness a felony, and the practice is allowed in most of Europe as well. Citizens’ arrests are distinct from police arrests in some interesting ways. They are not, for example, subject to the same procedural restrictions (indeed, abiding by Miranda requirements might get a citizen in trouble for impersonating a police officer). Evidence obtained during illegal citizen arrests and through warrantless searches and seizures by citizens are admissible. The apprehended suspect might bring a private claim after a mistake, but a mistaken arrest itself wouldn’t provide basis for a claim so long as it was reasonable, didn’t involve excessive force, etc. (Add a hurricane and some guns, though, and the definition of arrest can get a little, well, stretchy.)

In any case, I’m glad to see I don’t need any special training to for this kind of thing…I’m off to fight crime!


Lobbying the Jury

The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?


Improper Closing Arguments During Criminal Trials

There has been an interesting discussion this week in the blogosphere about whether it’s appropriate for a prosecutor to urge the jury during closing argument to “send a message” with its verdict. See, for example, this discussion at the Volokh Conspiracy: I worked as a prosecutor in Washington, D.C., where such arguments were clearly impermissible. Being careful not to make a misstep during closing argument weighed very heavily on the minds of the attorneys in my office because the appellate court in DC kept very tight reins on prosecutors. Perhaps the most striking example was that you could not say a defense witness lied during closing argument. You could say the testimony was incredible in light of the other evidence in the case, or inconsistent with the testimony of other witnesses, but we were warned in no uncertain terms not to use the word “lie” in closing argument. In keeping with the prohibition that you could not tell the jurors to send a message, you also could not tell jurors they were the “conscience of the community.” Of course, prosecutors have made some pretty remarkable statements in closing arguments over the years. Some of my personal favorites are (1) the prosecutor who stated about a witness “I believe him from the bottom; I swear I believe him from the bottom” and (2) the one who told the jury he “did not go to law school to put innocent men in the penitentiary.” Comparing a defendant to Charles Manson is not surprisingly no good either. Anyone else have any particularly striking examples?


A Breathalyzer In Every Car

Should I be very pleased that some people are working hard to insure that every car contains a breathalyzer that will prevent drunks from driving? This, from the NY Times:

Officials say interlocks for first offenders are not a panacea but will reduce repeat offenses. They say the next step will be a program to develop devices to unobtrusively test every driver for alcohol and disable the vehicle. The automaker Saab and a medical equipment company already have devices that may be adapted for that job.

On one hand, this approach is sensible. Assuming the devices are effective (that is, can’t be circumvented and don’t incorrectly exclude non-drunks), why wouldn’t we want to keep intoxicated people off the road? The reality is that police-enforced drunk driving laws don’t work very well. Relatively few drunk drivers are caught – except after an accident. Automated breath tests can not only save lives; they can prevent people from getting criminal records.

On the other hand,something about this technology makes me nervous. I concede that this might be irrationality – the product of too many years in criminal defense. One possible downside is that malfunctioning machines might block legit drivers from using their cars. Another is that it will prevent people from driving in a few situations where we would prefer that a (slightly) drunk person drive. Imagine that a person with .12 blood alcohol content is in his farm house with his wife. If she has a medical crisis, it will take an ambulance 30 minutes to get there, and another 30 minutes to get to the hospital. The husband can get her to the hospital in 30 minutes total. Assuming the risk of an accident at .12 BAC isn’t too high – and I suspect that, empirically, the risk is rather small – don’t we want our farmer to drive? Of course, this sort of situation is likely to be pretty rare.

I also worry a bit about the slippery slope. Will police seek to monitor these breath tests to catch people who even attempt to drive drunk?

Try as I might, however, I can’t convince myself that these devices are bad news. I like any invention that reduces the number of criminals, and the costs of crime, without filling up our prisons.

UPDATE: On a related note, Elizabeth Joh has an interesting piece considering some technologies that might reduce the role of police discretion in traffic stops.


How Many Bites of the Apple?

A prosecutor friend of mine recently set a fifth trial date in a homicide case where the jury has been unable to reach a verdict in the previous trials. When I was prosecuting, I was asked to handle the fourth retrial of another case where previous juries were similarly unable to reach a verdict. (Once again, the jury was unable to reach a verdict and we decided not to try the case a fifth time). Just two weeks ago, the government announced it would not retry reputed mobster John “Junior” Gotti after three attempts all resulted in hung juries. How many tries should the government get to convict a defendant? It seems to me that the vote counts in the previous trials should be one of the most important factors — if the jury is hanging 11-1 for acquittal every time, that is a case that pretty clearly needs to be brought to a close. The nature of the criminal charges seems to be another — the government would no doubt be more willing to continue to try to obtain a conviction in a particularly gruesome murder case than in a shoplifting case. Is anyone aware of any jurisdictions with firm rules on the issue?


Prosecutorial Practices and the Duke Lacrosse Case

First, I would like to thank Dan and all the folks at Concurring Opinions for inviting me to spend some time here. I thought I would dive right into a controversial topic to get things started off and post a few thoughts on the Duke lacrosse case. I obviously have no idea what really happened in the house that night, but it has been a fascinating case to observe from a procedural standpoint as a former violent crimes prosecutor. A couple of developments in the past week have been particularly interesting. First, DA Nifong stated that neither he nor anyone in his office has interviewed the alleged victim about the night in question. I frankly find that remarkable, especially in a case so dependent on victim testimony. When I was prosecuting we would have interviewed the victim early and often, both to help establish the facts and to develop additional avenues of investigation. This issue leads to my second and related point, which is that I think this case is an example of how the much maligned grand jury can actually serve an incredibly valuable function. We used grand juries extensively when investigating violent crimes in Washington, D.C. If I had been handling this case, for example, I certainly would have had every non-charged player who was at the party testify before the grand jury, as well as the second dancer who was at the house that night. Bringing as many witnesses before the grand jury as possible both helps to eliminate surprises like the second dancer’s statements to Good Morning America this week and offers the prosecutor invaluable insights from grand jurors about witness credibility, holes in the government’s case, and the like. It will be very interesting to see if this case leads to any evolution in prosecutorial practices in North Carolina in the future.


NSA Surveillance and the First Amendment

NSA3.jpgEarlier today, a federal district judge struck down the Bush Administration’s NSA surveillance program which involved intercepting international electronic communications without a warrant. The opinion is available here. I have not had time to read the opinion carefully yet, but I am especially intrigued by the court’s use of the First Amendment as one of the grounds to invalidate the program. I just completed an article entitled The First Amendment as Criminal Procedure in which I argue for First Amendment regulation of government information gathering. In the final section, I have a discussion of the NSA surveillance program.

The court’s First Amendment analysis is very brief, and I agree with Jack Balkin who observes that the “first amendment holding is novel although plausible, but it is not supported by very good arguments.” The First Amendment argument is indeed a difficult and complex one and it deserves more than just a few pages to develop. My article attempts to flesh out the First Amendment argument. Here’s the abstract:

This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people’s private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

I welcome any comments. Eugene Volokh has some interesting analysis of the court’s First Amendment analysis here.


Street Level Bureaucrats And The Revival Of Rehabilitation

OK, it is self-promotion, but since my article (co-written with Austin Smith) is now officially out in volume 91 of the Iowa Law Review I’ll take the chance to flog it here. The New Rehabilitation, available for free! free! free! in an earlier version from SSRN, challenges the received wisdom that rehabilitation is dead in American criminal justice. It also challenges the underlying assumption of most commentators that punishment policy is created from the top down – prinicipally by legislators. Pointing to the rise of specialty juvenile tribunals – like drug and mental health courts – it argues that street level bureaucrats (to use the language of political scientist Michael Lipsky) actually have a substantial role in shaping punishment policy. These local officials – judges, DA’s, probation officers, and others – crafted local courts that manage to avoid, or subvert, legisliative efforts to convert juvenile justice to a more punitive model. This new rehabilition isn’t available to all defendants, however. The specialty courts cream the less worrisome defendants and redirect them to alternative procedures while relegating the tougher kids to harsher juvenile or adult processes. I hear that this issue of the Iowa Law Review includes a limited edition Fountains of Wayne CD, but haven’t yet received confirmation.


Is Any Privacy Left in the Workplace?

computer14.JPGRecently, in United States v. Ziegler, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that under the Fourth Amendment, a private sector employee has no reasonable expectation of privacy in his computer if the employer’s computer administrator has access to that computer.

Orin Kerr has a lengthy and insightful analysis here. He contends that there is a difference between the expectations of privacy between government and private sector employees: “[T]he Court makes its (unpersuasive) analogy to a decision that rested on the framework of government employee rights, apparently applying the low-protection government framework to what used to be the higher-protection private-sector framework. The end-result: the relatively high level of protection that private sector employees have in their computer hard drives are dropped to the low level of protection that government employees have. Not good.”

Orin bases his argument that the Ziegler decision is problematic on the ground that private sector employees enjoy greater Fourth Amendment protections than public sector employees.

The problem I see in Ziegler is that it employs a very silly notion of reasonable expectation of privacy that contravenes the Supreme Court’s holding in O’Connor v. Ortega, perhaps the leading opinion on the issue of workplace Fourth Amendment rights.

In O’Connor, the Court held:

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