Category: Criminal Procedure


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.


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.


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.


Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art


Six Flags Syndrome: Price Discrimination In Plea Bargaining

Six Flags.jpg Price discrimination occurs when any seller charges two different buyers a different price for the same product. Coupons are one obvious method of price discrimination. Airline advance purchase requirements are another. The term sounds ugly, but it’s basic marketing. One major area of price discrimination occurs between sophisticated and unsophisticated consumers. Uninformed car buyers often pay more for their autos than those who arrive with the newest pricing data from Edmunds. And while many web buyers routinely pay full price, others of us consult Coupon Cabin, Mom’s View, or XP Bargains before ordering online. We don’t do anything special for the discount; we just know enough to check for coupons.

In a blunt admission of price discrimination based on consumer sophistication, Six Flags’ VP for ticketing, Steve Brown, stated) “any guest paying full pirce at our parks is probably not doing their homework.”

Perhaps all is fair in love and sales, but what about plea bargaining? Would we feel OK if US Attorney Patrick Fitzgerald announced that “anyone pleading to ten years on a marijuana charge probably didn’t do his homework”? As a public defender, I often discovered that a DA’s “best” offer wasn’t on the table initially. I had to request it. Sometimes I provided good reasons for a better deal – I cast the client in a new light, for example, or discussed an extenuating circumstance. But often I simply scrunched up my face and said “come on, you can do better than that”…and he or she would serve up a better offer. I understood the game; as a public defender, I played it every single day.

But it turns out that clients – and more importantly lawyers – are often surprisingly unsophisticated in the negotiation process and will not demand the best posible offer. I’m reminded of a friend who was handling his first serious felony. His client faced a mandatory 6 year bid for the gunpoint robbery, but the DA was offering 10 years. My friend planned to ask for seven years. After we talked, I explained that in my jurisdiction (we were in different states), a first time offender facing these charges would usually receive the mandatory minimum. I encouraged him to ask for six years. And that’s exactly what his client got. But if he’d asked for seven years – his initial plan – the client would have served an extra year.

So should prosecutors “take advantage” of unsophisticated opponents by jacking up offers?

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A Reckoning In Houston

Tomorrow the Enron jury will hear closing arguments in the Lay/Skilling trial. Given both defendants’ reported weaknesses as witnesses, the futures market estimate of conviction on at least several charges for Lay (76% ) and Skilling (73%) is predictable. (Although, the line has shifted significantly from February.) And even if a verdict arrives this week, the defense team(s) are already no doubt working on an appellate strategy. One tack: Judge Lake appears to have accepted the government’s intent instruction.

This raises an issue which I’ve been thinking a bit about recently. Given research showing that juries often ignore instuctions, especially in complicated cases, and instead focus on a narrative and attributions of blameworthiness, why does the government so often appear to overreach and thus preserve great defense issues for appeal? Does the federal prosecution manual discount the research? Or, more cynically, is the phenomena a problem of incentives? In the ordinary case, the marginal gain from the prosecution instruction is reaped by the line attorney, but the marginal cost of the instruction is usually discounted by time and by the likelihood that the government attorney defending the appeal is a different unit, or a different office altogether.


Stuntz Responds: Further Thoughts on Privacy and Transparency

stuntz1.jpgA few weeks ago, I wrote a post criticizing an essay by William Stuntz (law, Harvard) in The New Republic. Today, he has responded to my post in The New Republic Online.

I’ll reply briefly here to a few of Stuntz’s points in response. Stuntz observes:

What are the worst things governments do to their citizens, the abuses that most characterize despots and dictators? For my money, spying and snooping are pretty far down the list. I’d rank these much higher: torture and other physical abuse, harassment of political and religious dissidents, and (most of all) arbitrary punishment–prison sentences handed down not because the prisoners did some terrible wrong or caused some horrible injury, but because they got on the wrong side of some local party boss.

Stuntz seems to assume that privacy and transparency are separate issues from the ones he lists above, but I see privacy and transparency as integral checks to prevent the kinds of abuses Stuntz mentions.

Stuntz then writes:

Solove says that it’s “silly” to say that we’re better off if the government listens to lots of phone conversations rather than only a few. If so, then current law is silly–for as he knows, the law today and for some time has drawn precisely that line. That is why the police can set up roadblocks and stop every car to check for drunk drivers, even though the cops have no reason to suspect any one driver. In my view, the same principle should apply to phone calls, and to DNA tests. If I understand the news stories correctly, nearly all the members of Duke’s lacrosse team were tested in connection with the ongoing Durham rape investigation. That strikes me as a very good thing: DNA tests reduce the odds that the guilty will escape punishment, and also reduce the odds that innocents will suffer it. Does Solove disagree?

I am not an absolutist when it comes to protecting privacy. I believe that the police should have the power to conduct a variety of investigations; they should be able to conduct DNA tests; they should be able to wiretap and engage in surveillance. The issue isn’t whether or not they should be allowed to do these things; rather, it is what kinds of oversight and accountability do we want in place when the police engage in searches and seizures. The police can employ nearly any kind of investigatory activity with a warrant supported by probable cause. This is a mechanism of oversight — it forces the police to justify their suspicions to a neutral judge or magistrate before engaging in the tactic. Driver checkpoints are limited in the kinds of questions the police can ask; in what they can stop motorists for; in how long they can stop people; and so on. The law allows for wiretapping but only under judicial supervision, procedures to minimize the breadth of the wiretapping, and requirements that the police report back to the court to prevent abuses. It is these procedures that the Bush Administration has ignored by engaging in the warrantless NSA surveillance. The question is not whether we want the government to monitor such conversations; it is whether the Executive Branch should adhere to the appropriate oversight procedures that Congress has enacted into law or whether it should be allowed to covertly ignore any oversight.

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William Stuntz’s Misguided Theory of Privacy and Transparency

stuntz1.jpgWilliam Stuntz (law, Harvard) has long been advancing thoughtful provocative ideas about criminal procedure. I’ve always found Stuntz to be insightful even when I disagree (and I have disagreed with him a lot). Stuntz’s recent essay in The New Republic entitled Against Privacy and Transparency has me not just disagreeing, but doing so rather sharply.

Stuntz begins with an interesting historical generalization. He argues that privacy and transparency (open government) “seem like quintessentially liberal ideas,” although historically they had long been conservative ideas. Stuntz notes that the call for greater government transparency “flowed from pro-business conservatism” because it made it hard for an activist government to alter the status quo. He argues that privacy helped make it hard to regulate big business during the progressive movement in the early 20th century. Stuntz observes: “Privacy, once the right’s favorite right, became the left’s friend thanks to the civil rights movement. In a time when J. Edgar Hoover was spying on Martin Luther King Jr. and Southern sheriffs were enforcing America’s own version of apartheid, police snooping had a decidedly right-wing cast.” As for transprency, “Vietnam and Watergate made the left suspicious of government power generally and executive power in particular. When liberals looked for a way to make Richard Nixon’s imperial presidency a little less imperial, they stumbled on weaponry that Taft’s Republicans had used against Harry Truman: force the president to disclose as much as possible.”

The historical picture is far more complicated than the one Stuntz paints. Justice Louis Brandeis, one of the leading liberals in the early 20th century, was one of the main proponents of privacy and transparency, and he was strongly in favor of New Deal politics. Indeed, it was Brandeis who wrote the famous article, The Right to Privacy in the Harvard Law Review that gave birth to the privacy torts; it was Brandeis who penned the powerful dissent in Olmstead v. United States, 277 U.S. 438 (1928) where the Court held that the Fourth Amendment didn’t cover wiretapping; and it was Brandeis who wrote the famous line in favor of transparency, “Sunlight is said to be the best of disinfectants.” Stuntz is right when he acknowledges that privacy and transparency have strong roots in conservative thinking. But they also have strong roots in liberal thinking, and they are not concepts that have been passed like a baton from the conservatives to the liberals.

But this is not the part of Stuntz’s essay that makes my blood boil. It is his main thesis, where he argues:

Today, the danger that American democracy faces is not that rulers will know too much about those they rule, nor that too many decisions will be made without public scrutiny. Another danger looms larger: that effective, active government–government that innovates, that protects people who need protecting, that acts aggressively when action is needed–is dying. Privacy and transparency are the diseases. We need to find a vaccine, and soon.

Huh? The problem with our government stems from privacy and transparency? To justify this startling conclusion, Stuntz argues that:

[D]ifferent forms of evidence-gathering are substitutes for one another. Anything that raises the cost of one lowers the cost of all others. The harder it is to tap our phones, the more government officials will seek out alternative means of getting information: greater use of informants and spies, or perhaps more Jose Padilla-style military detentions with long-term interrogation about which no court ever hears, or possibly some CIA “black ops,” with suspected terrorists grabbed from their homes and handed over to the intelligence services of countries with fewer qualms about abusive questioning. In an age of terrorism, privacy rules are not simply unaffordable. They are perverse.

Stuntz’s logic seems to be that we should let the government invade our privacy to a significant degree, because if we don’t, the government will resort to even worse things. The argument that if you stop somebody from doing something bad, they’ll do something even worse can be used in almost any situation to defeat almost any law or regulation. Using this logic, one might argue that we should let thieves steal, because if we don’t, then they’ll resort to even worse crimes. The argument proves way too much, and as a result, winds up proving nothing in the end. Moreover, the kinds of information gathering techniques Stuntz lists as examples of “alternatives” rest on very uneasy legal and constitutional ground. Perhaps one of the reasons they have occurred is because of a lack of adequate transparency and a lack of sufficient checking of the Executive Branch. But Stuntz, however, sees transparency as part of the problem.

Stuntz has many more arguments which are worth responding to.

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The Federal Bias In Criminal Law Scholarship


John Pfaff has an interesting post up at Empirical Legal Studies Blog entitled Federalism and Empirical Legal Research. In it he asks why there appears to a skew towards analysis of federal law among empirical researchers of criminal law. He ultimately boils his questions down to these:

1. Do we focus “too much” on federal outcomes?

2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people’s lives?

3. If so, how can we rectify this? In particular, if it’s a problem of data availability, how can we get the numbers we actually need?

In my view, we do focus too much on federal courts. Most cases – and prisoners – are in state systems. And states really are different. The employees are different because state criminal jobs often involve less training and lower salaries than comparable federal positions. State facilities are often in much poorer condition. State sentencing schemes vary widely from state to state, and often look little like federal provisions. And because most state prosecutors and judges stand for election, they operate under a different set of professional pressures. I would expect these differences have substantial effects on case processing and outcome.

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Reciprocal Criminal Discovery, Or, What Was That Story Doing In My Sunday Times?

nytlogo379x64.gifFor some reason, the New York Times featured a story in Sunday’s paper about a change in Massachusett’s criminal procedure rules. A little over two weeks ago, in Commonwealth v. Durham (446 Mass. 212), the state’s high court ruled that under its reciprocal discovery rule, a judge could compel a defendant to turn over statements by Commonwealth witnesses if s/he hoped to use these statements to impeach the witnesses. I have a couple of comments about this story. The first is really a question: why did it appear yesterday and why was it in the Times? The decision came down on March 14 and the Boston Globe (owned by the Times) ran a story the next day. The Times story wasn’t about a national trend. Although it did place the Durham case in a national context (without bothering to mention the case name), it was first and foremost about the two-week old state court decision. I thought that was odd.

What of the substance? As a public defender, I certainly would have preferred not to turn over any part of my case in advance. One of the lawyers quoted in the story suggested that having such information in advance will help witnesses lie better by preparing them for likely cross-examination questions. In some cases this will certainly happen, but I’m not sure about the efficacy of this coaching. In my experience, professional witnesses – like police – are pretty effective at modifying their testimony to address expected defects. This rule will rarely implicate police witnesses, however, because they typically refuse to give out-of-court statements to defense investigators. Lay witnesses – the people from whom defense investigators typically obtain statements – are often much less talented than police when it comes to testimony refinement.

One lawyer suggested that this rule may result in more dismissals as prosecutors learn about the weaknesses of their cases in advance. Possibly. But even where there is no reciprocal discovery rule, many defense lawyers share these statements with trustworthy prosecutors in the hope of getting a dismissal. I’m not sure how making this discovery mandatory improves a defendant’s lot.

The best argument for reciprocal discovery is that litigation usually produces the most “accurate” results when both sides are fully prepared. In the absence of reciprocal discovery, prosecutors are always at a bit of a loss regarding the weaknesses of their case (at least with respect to civilian witnesses.) If we trust prosecutors not to coach witnesses to lie, the rule seems reasonable enough. On the other hand, I have come across several aggressive prosecutors who view the process as a game rather than a truth-seeking function. In their hands, these statements will not necessarily produce greater accuracy.

In the end, sadly, this rule will have limited impact and its effects won’t be those predicted in the article. Most defense lawyers have no discovery to provide the DA. They often lack the time, the will and the resources to conduct serious investigations. I fear that a reciprocal discovery rule will end up being used as an excuse for further defense sloth. Why bother investigating, some may ask, when the witness will simply be coached to testi-lie? And I wonder whether courts considering ineffective assistance claims against these attorneys will agree that this explanation renders non-investigation a legitimate defense strategy.

Interesting stuff, this, but what in the world was it doing in my Sunday Times?