“Political Question” Abstention Is Easy As 1, 2…

Eugene Kontorovich makes an interesting point about Zivotofsky v. Kerry, a recent case where the petitioner is challenging a federal statute that recognizes people born in Jerusalem as being “born in Israel.”  Kontorovich is surprised that more foreign governments haven’t filed amicus briefs, since it involves recognition of a foreign sovereign:

If the government’s framing of the issue is correct, one would think Zivotofsky would occasion [amicus briefs from International stakeholders]. It ostensibly involves authority over recognizing sovereigns, with an underlying dispute about sovereignty over Jerusalem. If thus understood as being in part about sovereignty (which it should not be), one would think interested parties – the Palestinian National Authority, the Hashemite Kingdom, the Organization of Islamic States, or the Arab League, individually or collectively, would file an amicus brief insisting on their position. Indeed, the Executive’s assertions of negative foreign policy consequences seem fanciful given — ginned up to resist legitimate legislation that he (sort of) disagrees with — given that no foreign entity could be found to write an amicus brief.

Perhaps foreign countries understand that this is not actually a case about the international legal status of Jerusalem, but rather about technical internal arrangements of the U.S. government. Also, they may wish to not overstate the issue’s importance ex ante, in case Zivotofsky wins. In such an event, Arab states are unlikely to cry foul, because they would have to acknowledge that a major power recognizes Jerusalem as part of Israel. Rather, they would prefer to say the ruling means nothing about the status of Jerusalem, and will continue to hold up the Executive’s formal position as being that of the U.S. That way they can continue to claim that even the U.S. does not recognize Western Jerusalem as part of Israel.

I think that’s more or less correct.  But what I don’t understand is why this case wasn’t thrown in the Political Question Abstention pile. In Baker v. Carr, SCOTUS enumerated the factors to consider when deciding whether a case presents a nonjusticiable Political Question:

  1. A textually demonstrable constitutional commitment of the issue to a coordinate political department;
  2. A lack of judicially discoverable and manageable standards for resolving it;
  3. The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion;
  4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  5. An unusual need for unquestioning adherence to a political decision already made;
  6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The District dismissed this case twice on Political Question grounds.  But that decision was vacated on appeal, and the lower appellate court sided with the Secretary of State on the merits.  I agree with the District Court judge, however: it seems clear to me that this case presents a Political Question when the above factors are considered. You’ve got a petitioner arguing that the Legislature can’t pass a statute that implicitly recognizes Israel, because only the Executive has the authority to recognize Israel. Here’s what the Baker Court wrote on the issue:

While recognition of foreign governments so strongly defies judicial treatment that, without executive recognition, a foreign state has been called “a republic of whose existence we know nothing,” [citation omitted] and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, [citation omitted] once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area [citation omitted].  Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have become operative.

The problem here isn’t whether Congress or the Executive recognize the State of Israel—both clearly do.  The problem is whether Congress and the Executive both recognize Jerusalem as being part of the State of Israel.  The U.S. Government has a longstanding policy of neutrality towards Jerusalem.   However, as Lyle Denniston at SCOTUS blog writes:

Congress in 2002 passed a law ordering the State Department to allow U.S. citizens who were born in Jerusalem to record on their passports that Israel is their place of birth, but two presidents — George W. Bush and Barack Obama — have argued in response that the law encroaches deeply on presidential authority.

The Petitioner wants his Passport to say he was born in Israel, and is arguing (in essence) that Congress has the independent authority to recognize Jerusalem as part of Israel.  And therein lies the issue: the Petitioner is asking the Court to stand between Congress and the Executive, and decide who has the power to recognize the borders of foreign states and how.  That’s a big deal, and one fraught with political baggage.

The Baker Court seems to agree with Presidents Obama and Bush that recognizing foreign States is the responsibility of the Executive.  But as at least one Amicus Brief argued, the authority of the Executive to recognize Foreign Sovereigns is neither absolute nor uniquely located in the Executive.  It would be silly if the President could unilaterally define the recognized territory of a foreign State without at least consulting Congress, given the massive consequences that such an action could have for a Democracy.

This is in large part what makes this case so ripe for application of Political Question abstention.  Adjudicating this case could easily offend any number of the six factors laid out above.  As the Baker Court recognized, any matter involving the recognition of foreign States is an inherently political question.  To wit, the State Department stated in its Brief in Opposition:

In 1993, with the assistance of the United States, representatives of Israel and of the Palestinian people agreed that the status of Jerusalem is a core issue to be addressed bilaterally in permanent status negotiations.

The Petitioner is asking the federal Judiciary to wade into this political quagmire, and it doesn’t seem like a good idea for the Courts to get involved.  The only judicial opening I can see here is the one provided by the Baker Court, i.e. allowing the Justices to determine whether “statutes designed to assure American neutrality have become operative.”  The problem is that to do this, the Court needs to figure out whether sovereignty over Jerusalem has been “politically determined and declared.  “The Executive maintains a stance of neutrality, while Congress has passed a law implicitly recognizing Jerusalem as part of Israel.

So who does the Court look to in order to know if sovereignty over Jerusalem has been “politically determined and declared?”  Does it look to Congress?  Or to the President?  The Court would have to decide this question before examining “the resulting status [of Jerusalem] and decide independently whether a statute applies to that area.”  Meaning it has to choose which branch is correct.  That’s not a great position for a Court to be in, and seems primed to manifest the very types of risks that the Political Question Doctrine was created to avoid.

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The Court Will Not Abide Your Pregnancy, Counsel

Nicole Girard points out a pretty mind-boggling case from an Atlanta Immigration Court, where a judge refused to grant a continuance an attorney that recently had a baby:

Earlier this month, Judge J. Dan Pelletier Sr. of the Atlanta Immigration Court denied attorney Stacey Ehrisman-Mickle’s motion to delay a hearing which she requested due to the fact that she was on maternity leave. In his refusal, the judge stated there was “No good cause.” Even though the opposing counsel was fine with it and hearings are routinely delayed for lesser reasons.

Having no available family, an out-of-town husband, and no other options since her local day care does not allow children under 6 weeks, the new mother–under her pediatrician’s direction–securely strapped her tiny baby to her chest and proceeded to the hearing. There she was lambasted by Pelletier who called her “unprofessional” as he questioned her mothering abilities in front of the entire court.

“I was embarrassed,” she said. “I felt humiliated.”

Ehrisman-Mickle filed an eminently adequate motion that provided the judge with more than enough legal authority to grant the motion.  Opposing counsel did not oppose the motion.  Ehrisman-Mickle’s motion states that it was the first time Ehrisman-Mickle requested a continuance in these proceedings.  Apparently, another attorney who was present in the courtroom confirmed her story, but asked to remain anonymous so the judge wouldn’t retaliate against his clients.

Nonetheless, Judge Pelletier denied the continuance, citing “no good cause” in his order, on account of the fact that that the hearing date was set prior to Ehrisman-Mickle’s agreement to represent the client.  He even went so far as to claim that Ehrisman-Mickle was at fault for accepting the case when she knew she was due to have a baby soon—which is pretty outrageous, given that opposing counsel didn’t oppose the motion, and there was no evidence that her client was simply trying to delay the hearing to avoid adjudication of their case.  Also, according to Ehrisman-Mickle, “two other immigration judges had already granted similar motions based on letters from her doctor.”  Making Judge Pelletier’s refusal to grant a continuance even stranger.

This is pretty mind-boggling stuff.  Continuances are a regular part of law practice.  Judges grant continuances all the time—often multiple in the same case.  The fact that Ehrisman-Mickle accepted representation after the client’s hearing date was set is the exact opposite of my experience.  I’ve represented clients in administrative hearings before, and the ALJ’s who presided over my cases actually considered it “good cause” to grant a continuance if a client sough legal representation after their hearing date was set.  The judge in this case did the exact opposite: he cited the client’s decision to seek legal representation after the hearing date was set as “no good cause.”

The Judge’s reaction would be understandable if the client had already been granted a continuance prior to getting a lawyer, and the judge was trying to prevent the client from using their recent decision to seek legal counsel as an excuse to delay the hearing further.  But that didn’t happen here.  It was the first continuance requested in the case, opposing counsel didn’t oppose it, and there’s no evidence that the continuance was requested because the attorney or the client were unprepared or trying to put off the hearing for its own sake.  ”

In light of all this, refusing to grant the  Ehrisman-Mickle’s continuance seems like an abuse of discretion by the judge.  It looks like judge Pelletier did eventually agree to the continuance when Ehrisman-Mickle appeared in court with her newborn in tow, but not before verbally berating her in front of everyone else in the room, and humiliating her in front of her peers.  There’s no excuse for that sort of behavior from a judge.  It looks like Ehrisman-Mickle filed a complaint with the court.  Hopefully something will come of it down the line.

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John Grisham, Child Porn, And Sentencing Policy

Author John Grisham thinks Child Porn sentencing laws are too harsh, citing the case of a “good buddy from law school” who got nailed in a child porn sting:

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.” […]

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.

“I have no sympathy for real paedophiles,”he said, “God, please lock those people up.  But so many of these guys do not deserve harsh prison sentences, and that’s what they’re getting,” adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

Peter Foster, the author of the article, cites some interesting data:

Since 2004 average sentences for those who possess – but do not produce – child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission.

A big question here is whether harsher sentences have a deterrent effect in child porn cases.  A common way to determine whether harsher sentences deter crime is to look at the relevant data, and see if the number of associated criminal offenses went down after the harsher sentence was enacted into law.

In most government crime reports, we will see a snapshot of one of four categories: (1) reported crimes, (2) arrests made, (3) convictions, or (4) sentencing.  All of these categories have analytical limitations.  Nonetheless, it’s often the best we have to work with.  Most people go with “reported crimes” as their preferred category.  Just because a crime is reported doesn’t mean one was actually committed, but for most people, it’s the closest we can get to splitting the difference between the real number of crimes committed, and what the government actually knows about.  And if harsher sentences deter people, then surely we would expect the number of reported crimes associated with a harsher sentence to decrease.

So have child porn cases decreased alongside harsher sentencing laws?  Not in the slightest, according to the U.S. Sentencing Commission:

The number of cases in which offenders have been sentenced under the non-production guidelines has grown substantially both in total numbers and as a percentage of the total federal case load. As reflected in Figure 6–1, in fiscal year 1992, there were 61 R/T/D cases, which increased to 813 cases in fiscal year 2010. In fiscal year 1992, there were 16 possession cases, which increased to 904 cases in fiscal year 2010. In fiscal year 1992, non-production cases accounted for 0.2 percent of the 36,498 total federal criminal cases. By fiscal year 2010, such cases accounted for 2.0 percent of all 83,946 federal criminal cases.

Here’s Figure 6-1 from the report:


As you can see, from 2004-2010, the number of people sentenced under the harsher federal child porn sentencing guidelines has gone up steadily.  If harsher sentencing deterred child porn offenders, you would expect the number of child porn cases to decrease.  Instead, they actually increased.

Now, it’s possible that the reason for this increase is that federal law enforcement agencies decided to increase the amount of manpower and resources they dedicate to child porn investigations.  That would predictably lead to more convictions.  The other possibility is that the number of offenders has increased due to the expansion of technology and internet access over the last decade.  It is arguably easier now than it’s ever been to create, distribute, and access media that constitutes child pornography under federal law.  As a result, it’s possible that harsher sentences have deterred some potential offenders, but that the sheer number of new offenses generated by expanded technology and internet access has overshadowed the deterrent effect, leading to a net increase in child porn cases on an almost annual basis since 2004.

It’s hard to say whether any of this is true or not.  We could look at the FBI’s budget appropriations, and I honestly don’t see anything that would suggest a significant realignment of resources towards child porn cases.  The second possibility is a bit harder to analyze, because it’s impossible to go out and interview every potential child porn offender to see if they were deterred by the sentencing guidelines.  So all we really have here is data points and a correlation, but not much in the way of extrinsic evidence that would help us tease out a cause-effect relationship.

What we do know, however, is that harsh sentencing has completely failed to deter drug offenders, and has arguably failed to deter capital crimes.  In light of this, we have to ask ourselves whether there’s something special about child porn offenses that would make harsher sentencing a more effective deterrent than it is for drug offenses and capital offenses.  If anything, given that Pedophilia is properly understood as compulsive behavior, harsher sentencing would be less likely to deter child porn offenders than members of the other groups (most drug offenders are not addicts).  And in the case of “incidental” offenders like John Grisham’s law school friend, we’re looking at people who, like most of the general population, aren’t all that familiar with the U.S. sentencing guidelines to begin with, so it’s highly unlikely that those guidelines would have any deterrent effect on them either.

So while many peoples’ instinct is probably to recoil from John Grisham’s suggestion that we should go “easier” on child porn offenders (specifically those who consume it rather than create it), he’s certainly right about the fact that the U.S. has an incarceration problem, and that harsher federal sentencing schemes have contributed to it.  It’s also true that in most cases, harsher sentences don’t seem to deter people.  They do, however, ruin a lot of peoples’ lives due to mistakes that don’t always warrant an extraordinarily harsh punishment (if you’ve never been to prison, I can assure you that a year in prison is a very, very long time).

If you don’t agree, consider this: The purpose of child porn laws is to protect children from sexual abuse.  John Grisham’s law school buddy was supposedly sentenced to three years in prison for looking at pictures of 16-year old girls.  The age of consent in 32 states is 16.  So in most of the country, John Grisham’s law school friend could have legally had sexual relations with a 16-year old girl, but under federal law, he can’t look at a picture of them naked.

That’s clearly absurd.  And it’s a big part of why John Grisham is right.  Everybody wants to protect children from being victimized by sexual predators.  The question is whether the sentencing guidelines we have in place actually keep sexual predators off the streets (or at least deter them from victimizing anyone).  In some possession cases (certainly not all of them, but some), courts aren’t dealing with the demented sexual predators we generally envision when we discuss sex crimes against children.  They are dealing with relatively normal people who got caught up in a draconian sentencing scheme that punishes people for something that—in the case of John Grisham’s law school friend—they could have done legally in person in most U.S. jurisdictions.  Other cases may simply involve a singular lapse in judgment, or worse, an honest mistake about the propriety of the material they were viewing.

Putting someone like that in jail for three years is not justice.  It’s crazy.  And the federal sentencing guidelines should reflect the distinction between a person who once viewed suggestive photos of 16-year olds, and a person like Jerry Sandusky, who physically violated and victimized a countless number of young children before he was finally removed from society.

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Are You Being Suspiciously Polite?

An Ohio man who was arrested after police discovered marijuana and a loaded firearm in his vehicle recently got great news from  an Ohio Appellate court [opinion here]. They affirmed the trial court’s decision to suppress the evidence in his case.  His initial crime?  Being “overly polite” and “breathing heavily:

On December 12, 2012, on an Ohio state highway, Patrolman Jared Haslar pulled over Joshua Fontaine for driving 45 miles per hour in a 35 miles per hour zone. According to a subsequent court ruling, Haslar became “suspicious of criminal activity” after Fontaine exhibited “unusual” body language and behavior. “He was extremely-like almost overly polite,” Haslar testified, “and he was breathing heavily at times while I was talking to him.”

Now, the key facts:

Haslar believed this behavior provided reasonable suspicion that Fontaine was up to no good, so he brought the man back to his patrol car, where he patted him down for weapons and wrote up a traffic ticket.* At this point, a second officer arrived with a drug-sniffing dog. The dog reportedly indicated that it smelled illicit material, so the officers searched the vehicle, uncovering a loaded .40-caliber handgun and a bag of marijuana.

And the courts’ response:

The trial court suppressed the firearm and marijuana, concluding that too much time had passed between the initial stop and the search and that excessive politeness does not constitute probable cause to search a vehicle. Ohio’s Eighth District Court of Appeals upheld the lower court’s ruling. As soon as Haslar finished writing the citation, it said, Fontaine should have been free to go in the absence of evidence that he was involved in criminal activity.

“We agree with the trial court,” wrote Judge Mary J. Boyle, “that ‘overly polite’ and ‘heavy breathing’ are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”

Reasonable suspicion is a problematic standard.  It’s generally up to individual judges to determine what they think meets the definition.  So we end up with wildly divergent jurisprudence in state courts as judges undertake the impossible task of intuiting what a “reasonable suspicion” is.  What we do know is that it has to be based on more than a “hunch.”  The case that invented Reasonable Suspicion, Terry v. Ohio, has this to say about when an officer has Reasonable Suspicion:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. 

Under the Court’s logic, there was never Reasonable Suspicion of criminal activity over and above the traffic violation.  So anything that happened after the police wrote the ticket is an unreasonable Search & Seizure.

While I agree with the outcome of this case, it also raises some interesting legal questions.  For example, why isn’t this case analogous to Illinois v. Caballes?  I’ll borrow Wikipedia’s summary of the facts for brevity’s sake:

An Illinois state trooper stopped Roy Caballes for speeding on an interstate highway. When the trooper reported the stop to his headquarters, a member of the state police’s drug interdiction squad overheard the report and proceeded to the location of the stop. When the drug officer arrived, Caballes was in the trooper’s car while the trooper was writing out a warning ticket. The drug officer walked his drug-sniffing dog around Caballes’ car, and the dog alerted at the trunk. Inside the trunk, the officers found marijuana. The whole episode lasted less than 10 minutes.

The U.S. Supreme Court ruled the Search and Seizure in Caballes permissible.  These are nearly the same facts: (1) Suspect gets pulled over for traffic stop, (2) Second Officer shows up a short time later with drug dog,  (3) drug dog alerts officers to drugs, (4) car is searched (5) contraband is found.

If you read the Ohio court’s opinion, the court even cites Illinois v. Caballes in its decision, without discussing the fact that SCOTUS ruled a very similar search Constitutional under the same facts.  What was the distinguishing factor?

My guess is that in Caballes, the second Officer showed up before the original purpose of the stop concluded (i.e. before the ticket was issued).  In the case from Ohio, the first officer continued to detain the suspect after the purpose of the original stop was concluded (i.e. after the ticket was issued).  In other words, the Ohio officer continued to detain the suspect for no other reason than to wait for a drug dog to show up and sniff his car.  But it would presumably be ok if the drug dog just “happened” to show up before the first officer finished writing his ticket.

So an Ohio officer looking to get around these two precedents might purposefully “take his time” writing tickets if he wants to get a drug dog to show up and have a drug sniff be ruled permissible.  On the other hand, Caballes takes into account the length of the time it takes to write out the ticket, so there’s a ceiling on how long the officer can extend the stop.  Either way, there’s some wiggle-room there.  A little too much, if you ask me.

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Know The Law!

Hinton v. Alabama provides excellent example of how knowing the law for your client can literally be a matter of life and death.

Anthony Hinton was accused of a double murder stemming from three restaurant robberies.  The primary evidence against him was ballistics tests that seemed to match bullets from the crime scenes with a gun in Hinton’s home.

The defense lawyer wanted to hire an expert, but he was under the mistaken belief that the state would only pay up to $1,000 for an expert witness.  However, the relevant statute had previously been amended to provide that defense lawyers are entitled to be “reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court.’”  Both the trial judge and Hinton’s lawyer were mistaken about this, but the judge gave Hinton’s lawyer the opportunity to file a motion to request more funding, which he did not do.

As a result of this confusion, Anthony Hinton’s lawyer found a poor expert whose testimony was impeached by the prosecution on cross-examination.  The jury believed the prosecution’s expert witnesses and Hinton was convicted.

During post-conviction proceedings, Hinton got new lawyers, who hired three expert witnesses, including the former head of the FBI Firearms Unit, who all testified that there was no evidence that the bullets found at the crime scenes matched Hinton’s gun.  Hinton’s lawyer could’ve gotten funding to pay these experts under Alabama law.  The Supreme Court described the oversight of Hinton’s lawyer as an “inexcusable mistake:”

Hinton’s attorney knew that he needed more  funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance [under Constitutional norms].  . . . . [the] inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

Interestingly, this case was decided per curiam, with no dissents from Scalia or Thomas, as generally happens when SCOTUS overturns a death sentence.  This only tends to reinforce the gravity of the lawyer’s mistake.

But the defense attorney was not the only one who screwed up here.  What is scary here is that both the trial judge and the attorney didn’t know the law.  And when Hinton’s attorney called around to other lawyers to inquire about the less-than-stellar expert he’d found, nobody asked him why he wasn’t looking for a better expert, given that the State of Alabama would have paid for it.  Alabama’s reimbursement statute was amended over a year before Hinton was arrested.  You’d think somebody along the way would have pointed this out.

Cases like this can be tough for criminal defense attorneys to digest.  On the one hand, we’re glad to see the Defendant get justice.  And the reminder to “always check the statute” makes us better lawyers.

On the other hand, every criminal defense attorney fears the day that they miss something huge in a client’s case, and that mistake costs the client their freedom.  None of us know our state’s Penal law word-for-word.  None of us know our state’s Criminal Procedure law or the rules of Evidence word-for-word.  There is just too much for any one person to know, and nobody can reasonably be expected to memorize it all.

But part of being an effective lawyer is knowing when to do your research.   We correct for deficiencies in legal knowledge by knowing when to double-check the statute books.  That’s part of knowing the law.  It’s what our clients depend on us for.  This is what I tell colleagues who are still in law school preparing to become lawyers.  Your client is depending on you to know the law.  It is impossible to know the contents of every single statute that might be relevant to your case.  But you need to know when it’s time to dig a little deeper into the law books to get the answer.

Hinton v. Alabama demonstrates this vividly.  When your client’s case comes down to challenging the credibility of the state’s expert witness, knowing how much money you can spend on a rebuttal witness is a big deal.  Anthony Hinton has probably been sitting on death row for almost 30 years because his lawyer didn’t take the trial judge’s suggestion to ask for more funding to get better expert witnesses.  He probably should have checked the statute after the judge said he wasn’t sure how much money the law allowed the court to grant the defense for expert witnesses.  He had queues and he didn’t take them.

But hindsight is 20/20.  Even seasoned lawyers can make mistakes like this from time to time.  Just like most doctors will miss at least one diagnosis at some point in their life that costs a patient life or limb, most criminal defense attorneys will miss a legal issue at some point in their careers that costs their client their freedom.  We just have to do our best to learn from others when it happens, and constantly work at refining our craft.  We can’t always do everything we’d like in our clients’ cases.  But we must be able to do enough.  At the very least, “enough” means giving your client the best defense the law will allow.  But you have to know what the law allows before you can give it to them.

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Watching The Watchers

The Fraternal Order of Police in Maryland is trying to get state legislators to a law that would expand the already impressive legal protections afforded to police officers:

A bill drafted by the Fraternal Order of Police would force investigators to throw out any evidence of police brutality, corruption, racial profiling or other serious abuses if they made even a technical mistake while looking into suspected wrongdoing. Police chiefs and sheriffs around the state, most of whom oppose the measure, say the bill would undercut their efforts to weed out bad cops and promote public trust in their departments.

This particular paragraph was a doozy:

The measure, sponsored by Sen. Brian E. Frosh and Del. Kathleen M. Dumais, a pair of Montgomery County Democrats, would provide police officers facing internal disciplinary action or firing with protections usually reserved for accused criminals looking at prison time. Even in Maryland, where public employees have extensive rights thanks to their political clout, no other group of state or local workers is covered by such safeguards.

The idea that criminal defendants get protection from “technical mistakes” made by police and prosecutors during their investigations is laughable.  As any law student that has finished a Criminal Procedure course can tell you, police and prosecutors are anything but obligated to throw out evidence procured through “technical” mistakes (or as we say in the Criminal Defense Bar, “illegally”).  The U.S. Supreme Court has long blessed the use of evidence against Criminal Defendants procured through “official lawlessness,” to use Justice Brennan’s phrase.  It all stems from a quaint bit of trolling from Justice Cardozo, who infamously opined in 1926 that throwing out evidence in criminal cases due to “technical errors” was intolerable, because the accused might benefit from the Government’s incompetence.  “The criminal is to go free because the constable has blundered.”

Pursuant to Justice Cardozo’s infamous and misguided alarum, under today’s Fourth Amendment jurisprudence, all but the most egregious “technical mistakes” are ignored when it comes to admitting evidence against a Criminal Defendant.  Few Criminal Defense attorneys exist who haven’t found themselves frustrated by the voluminous case law in both state and federal courts that upholds criminal convictions in the face of blatant misconduct by the Government.  The main culprit in these cases is usually the “harmless error” rule, encoded in the Federal Rules of Criminal Procedure as Rule 52, which imports the following language from former section 556 of Title 18 of the US code:

No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant

In other words, the Government can screw up during a criminal prosecution and violate the Constitution, court rules, state, and federal law as many times as it wants—as long as the judge, after due consideration for his career prospects (no judge wants to be known as the jurist who set an accused child molester or murderer free on a “technicality”) doesn’t think there’s a reasonable possibility that the outcome of the trial could have been different.  Never mind that this basically requires the judge to jump into the minds of 12 separate jurors and predict how they might have reacted.  Just another “technicality” to brush aside.

And of course, alongside the “Harmless Error” rule is my favorite: the “Good Faith” exception to the Exclusionary Rule.  A bit of Judge-made law that has blessed more defective warrants and police misconduct than our beloved Founders could have ever thought possible.  As numerous commentators have noted, federal courts have created so many exceptions to the Fourth Amendment’s warrant requirement that the exceptions have basically swallowed the rule.  Any judge or prosecutor who wants to find a way to keep evidence in the record can usually find a way to do it.  The law of Search & Seizure is so perforated and flimsy at this point that it’s not hard to find a case that justifies the Government’s conduct in a given case.

So it is simply not true that this bill is giving Maryland police officers the same protections enjoyed by Criminal Defendants.  It is in fact giving police more rights than are enjoyed by criminal defendants.  If mere “technical” flaws in criminal investigation were sufficient to get evidence thrown out in criminal courts, we would have a much more reliable and fair criminal justice system.  But as any seasoned professional will tell you, that’s not the system we actually have.

The bill being proposed by the Maryland Fraternal Order of Police also demonstrates how a change of position can change someone’s point of view.  It’s funny how when it is the police whose conduct is being investigated for wrongdoing, they demand every procedural protection possible be afforded to them, and only the most reliable evidence be admitted against them.  But ask those same officers whether they believe Criminal Defendants should be afforded similar protections, their tune suddenly changes.  Funny how rigorous procedural protection for the accused suddenly becomes important when it is them sitting in the hot seat, and it is their livelihood and/or freedom being threatened by the Government.  It’s unfortunate that their concern probably won’t extend to Criminal Defendants anytime soon.

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Posner v. Posner

From The Problematics of Moral and Legal Theory (Via Abbe Smith):

I can confirm from my own experience as a judge that criminal defendants are generally poorly represented. But if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants maybe optimal.

Yes.  Because the problem with our criminal justice system is that we aren’t convicting enough people of crimes.  Seems silly, wouldn’t you agree, Posner?

The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using “Johnny Horizon” as a trade name without the authorization of the Department of the Interior. . . . We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from [the Defendant’s] milieu is able to take advantage of such an opportunity. 

So Posner speaks out of one side of his mouth complaining that bad defense lawyers are a good thing so that guilty defendants don’t go free.  He then speaks out of the other side of his mouth stating that our federal criminal code is so obscure that the average joe couldn’t possibly be expected to know when they are breaking the law.  Wouldn’t we want better defense attorneys to help prevent people from being swallowed up by a counter-intuitive, increasingly cumbersome federal criminal code?

Of course, it’s not a day that ends with a “Y” unless some judge or prosecutor is trashing criminal defense attorneys.  While the latter is busy getting people off on “technicalities” (read: protecting peoples’ Constitutional rights), the former get to deliver the message from on high that we should encourage our policy makers to create a justice system that thrives on bad defense attorneys—and that such a system is actually more just!  And sometimes if you’re lucky, you’ll get someone who has already realized how ridiculous this is, and manages to contradict himself elsewhere.  Posner wins again.  Posner, meanwhile, limps back to the drawing board, to pontificate more about things Posner is clearly more qualified to discuss.  

If only Posner listened to Posner.  The former might convince the latter that his views on criminal defense attorneys are sorely misplaced.


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