Blog: Mens Rea

The ACLR is proud to have such a robust blog program. Traditionally, blog content has been generated solely by student contributors and has been limited to online publication on this page. The ACLR is excited to build upon this foundation by launching a new program, called ACLR Online, which will not only continue to host the excellent work of our student contributors, but will additionally host the work of legal scholars and practitioners. Online content will now be accessible through Westlaw as well.  

If you are interested in contributing to ACLR Online, please contact Donna Farag at aclr.mensrea@gmail.com. 

Visit ACLR Online or read through our blog, Mens Rea. 


 

Gun Control: It Is Time

3/14/2016

The Supreme Court’s denial of certiorari in Friedman v. Highland Park, a Seventh Circuit case upholding a local Illinois ordinance banning assault weapons and large capacity magazines may have revealed the Court’s reluctance to strike down gun control legislation, particularly given recent mass shootings.  Tighter gun control legislation in general correlates with lower gun violence and can work within the bounds of the Second Amendment. Therefore, the federal and local governments should look to implement it. In April of last year, the Seventh Circuit ruled that the Second Amendment does not preclude a local government from outlawing the possession of semi-automatic assault weapons and large capacity magazines. 

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Devika Singh, ACLR Featured Online Contributor

Defective Democracy: The Faults of Felon Disenfranchisement

3/14/2016

Entering a presidential election, there are few issues that almost all states seem to agree on, but one practice is nearly unanimous, regardless of party leaning: felon disenfranchisement. Felon disenfranchisement laws restrict felons from voting while incarcerated and often some period of time following their release. These laws are in opposition to growing international norms protecting universal enfranchisement and are racially discriminatory in application though they have withstood numerous constitutional challenges. Despite their constitutionality, the policy justifications for felon disenfranchisement are no longer acceptable in modern society and actually cut against democracy as a whole.

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Austin McCullough, ACLR Featured Online Contributor

Justice Scalia's Criminal Jurisprudence

2/16/2016

Justice Scalia’s unexpected passing will have a dramatic effect on our country in many ways. His outsized personality had both detractors and proponents—but it is hard to argue with Judge Posner when he called Justice Scalia “the most influential Justice of the last quarter-century.” Surely much will be written about his undeniably large impact, but it was his influence on the criminal law system that best represents his nuanced legacy.

Justice Scalia’s time on the bench saw many important cases, and his forceful opinions and pointed dissents often earned him both critique and praise. It often seemed that he was a reliable conservative vote. However, when it came to criminal law, Justice Scalia confounded those who sought to paint him an ideologue. Justice Scalia would likely have attributed his views on criminal law to his “originalist” method of legal interpretation that called for determining a law’s meaning based upon how a reasonable person would have understood the Constitution’s text at the time it was ratified.

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Matt Evola, ACLR Featured Online Contributor

Aggravating and Mitigating Circumstances: A Shifting Standard

2/10/2016

Capital punishment remains a feature of the criminal justice system in a majority of states, and debate rages on about its efficacy and constitutionality. However, assuming that capital punishment will endure in many states for some time, it is imperative to ensure more than the mere appearance of fairness.

The Supreme Court may have cause to address one area of the capital punishment system in the coming months that could help ensure the penalty is “reserved for the worst of crimes and limited in its instances of application.” In Indiana, Kevin Charles Isom has been convicted and sentenced to three death sentences related to three murders committed in 2007. On appeal, Isom challenged the standard used to weigh aggravating and mitigating circumstances in determining the validity of a death sentence. Most states which retain the death penalty require a balance of circumstances before such a penalty is given. However, the standard for that balancing is not uniform across the country and is unclear in some states.

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Matt Evola, ACLR Featured Online Contributor

Criminalizing Immigration: Is It Justified?

1/11/2016

During the summer of 2015, American media was flooded by stories of Central American families and unaccompanied children entering the United States in unprecedented numbers. Although immigration is nothing new to the United States, the government’s dysfunctional response to this influx sparked debate about how America deals with its immigrant populations. While immigration is typically handled through civil law in the United States, an often-overlooked part of the United States’ immigration system is the criminalization of “illegal” entry or reentry into the country. Although these crimes were written into the 1952 Immigration and Nationality Act, immigration officials did not typically refer immigrants caught entering “illegally” for criminal prosecution until the Department of Homeland Security (DHS) implemented “Operation Streamline” in 2005. However, as entire populations are being uprooted due to extreme violence and/or poverty, the United States must determine whether migrants who enter through “irregular” means—or “outside of the regulatory norms”—deserve to be marked as criminals and whether this criminalization can be justified on traditional punishment grounds.

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Leigh Ainsworth, ACLR Featured Online Contributor

Elonis: Proving a True Threat

1/11/2016

Given the value American society places on freedom of speech, courts face a challenge when limiting speech to protect victims of online threats. Elonis v. United States, a case decided earlier this year concerning violent threats made on Facebook, highlights the Supreme Court’s struggle to address this issue. The Elonis Court held that proving mere negligence on the part of a defendant is not sufficient to satisfy the federal threat statute. The Elonis decision weakens legal protections given to victims of abusive speech because it places an unreasonable burden on prosecutors.

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Devika Singh, ACLR Featured Online Contributor

Eliminated in All But Name: Peremptory Challenges Continue to Plague Justice

12/26/2015

In 1986, Timothy Foster, an eighteen-year-old black teenager, was convicted of killing Queen Madge White, an elderly white woman, in Georgia. At trial, the prosecutor used four of his nine peremptory strikes to remove all prospective black jurors. Foster was subsequently sentenced to death by an all-white jury at the urging of the prosecutor, who insisted the jury needed to “deter other people out there in the projects.” Foster’s case has made its way to the Supreme Court almost thirty years later. Foster v. Chatmon highlights the untenable position peremptory challenges occupy in modern American jurisprudence and demonstrates, once again, why a change to the system is necessary.

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Matt Evola, ACLR Featured Online Contributor

No End in Sight: Failed Treatment in Civil Commitment of Sex Offenders

12/22/2015

Sexually dangerous persons (“SDP”) are individuals with mental incapacities considered to pose such a danger to society that their confinement is necessary for public safety. Civil commitment programs were created to contain and treat SDPs, but they have not always succeeded in their stated goal of rehabilitation. In light of recent successful constitutional challenges, programs that fail to provide a real opportunity for discharge from commitment are essentially punitive and an improper means to try to serve public safety at the expense of others’ fundamental rights.

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Austin McCullough, ACLR Featured Online Contributor

How the Right to Speedy Trial Can Reduce Mass Pretrial Incarceration

11/5/2015

Kenny Johnson was thirty-two years old when he was released from a Baltimore City jail—almost three years after his arrest in October 2012. Johnson was not serving a sentence, but these three years were spent under pretrial detention. He had been denied bail. Johnson’s case was a rollercoaster of delays and uncertainty, particularly towards the end of his pretrial incarceration. The need for certainty convinced Johnson to plead guilty—he could not stand knowing that his pretrial incarceration could be indefinite and he wanted to be sure he was going home, guilty or not guilty.

Between the time he was arrested and finally released, Johnson’s case was postponed thirteen times. Johnson already had one trial in late 2013, but the jury did not deliver a unanimous verdict, resulting in a mistrial. At the start of his first trial, Johnson had already been incarcerated for over a year, significantly longer than what speedy trial laws in Maryland allow.

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Zina Makar, Open Society Institute Fellow at the Office of the Public Defender in Baltimore City

Criminalization of Revenge Porn: Providing Victims with a Realistic Legal Avenue

10/31/2015

At her counselor’s suggestion, Leona Taylor took intimate photos of herself in an attempt to heal from past molestation and “become more comfortable with her body.”She gave these photos to her then-boyfriend, William Franko, and told him about her history of sexual abuse. However, she never gave him permission to share them. Years after Taylor and Franko had separated, a co-worker asked her if she had posted revealing images of herself on the Internet. Franko had posted Taylor’s photos online along with her name and contact information, fully aware of the harm he would cause. Revenge pornography (“revenge porn”), like in Leona Taylor’s case, has become a frequently inflicted harm. Revenge porn falls under the broader umbrella of non-consensual porn, which covers the distribution of any sexually explicit image or video without the subject’s consent.

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Austin McCullough, ACLR Featured Online Contributor

Sentenced to Death in California . . . Maybe

10/29/2015

No judge has ever read the words “life with the remote possibility of death” aloud in a courtroom. Yet, as of this year, the 746 Californian inmates who have received the death penalty only face a small likelihood of being executed. Last year, in Jones v. Chappell, Judge Cormac Carney of the Central District of California held that California’s practice of delaying executions constituted cruel and unusual punishment under the 8th Amendment. Although the 9th Circuit may overturn Jones this year, Carney’s opinion highlights the necessity for reform in California’s capital punishment jurisprudence.

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Devika Singh, ACLR Featured Online Contributor


Executive Restraint: Protecting Rights and Civil Liberties in the Field of National Security

10/21/2015

Concerns about the protection of rights and liberties in the face of threats to national security have come to the forefront in the years after the September 11th terrorist attacks. As external restraints provided by Congress and the courts have arguably been ineffective, scholarship has turned toward protections offered by internal checks on the executive branch. One such internal check on the various executive agencies, the inspector general (“IG”) office, has garnered increased visibility in the wake of new statutory mandates to monitor rights violations. IG offices operate at numerous executive agencies at different levels of government. They represent an effort to gain greater oversight and accountability over governmental agencies and operations, and range from municipal IGs to major executive agency IGs. These IGs are tasked with preventing fraud, waste, and wrongdoing, including investigating criminal violations.

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Matt Evola, ACLR Featured Online Contributor

Weekend Jail Sentences: A Good Alternative to Total Confinement Only If Imposed Properly and Fairly

10/19/2015

On August 21, 2015, a Delaware judge sentenced Molly Shattuck, a former Baltimore Ravens cheerleader, to two years of alternating weekends at a Sussex County probation center for the statutory rape of her son’s fifteen-year-old friend. Shattuck pled guilty to fourth-degree rape in June after she reached a deal with prosecutors, who agreed to drop other charges, which included unlawful sexual conduct and providing alcohol to minors. While the judge’s sentencing decision took into consideration Ms. Shattuck’s three children, many victims’ rights advocates have criticized the sentence, including Lisae Jordan of the Maryland Coalition Against Sexual Assault, who called it “totally inappropriate.” Weekend jail sentences are commonly used for misdemeanor crimes, such as DUIs, petty theft, or failure to pay child support, but Shattuck’s case raises several questions about the use of weekend jail sentences for more serious offenses and whether judges order such sentences in a discriminatory manner.

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Leigh Ainsworth, ACLR Featured Online Contributor

The View From Inside: The Bail Reform Act of 1984

10/17/2015

Two summers ago, I was fortunate enough to participate in the Street Law Community Clinic of the Georgetown University Law Center, which allowed me to teach a weekly class to inmates at the District of Columbia Jail (“D.C. Jail”).  Together, the students and I explored the origins and practical effects of constitutional and criminal law, particularly as they are experienced by marginalized communities. This past summer, the class was interested in learning more about pretrial detention, and the justification for holding someone who has not been convicted of a crime.  As a result, we read relevant portions of the Bail Reform Act of 1984, legislation allowing the detention of criminal suspects that, after an adversarial hearing, are determined to be a “danger to the community,” even if that determination is based on crimes that the judge believes the suspect might commit in the future.

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Introduction by Ben Shaw, featuring Andre Lyons, Anonymous, and Jermaine McGregor as guest authors

Equal: Enforcing Constitutional Responsibilities Against Prosecutors in Orange County

7/3/2015

In Orange County (OC) this past March, we saw a rare challenge to the inviolability of the American prosecutor. OC Superior Court Judge Thomas Goethals dismissed the entire Orange County District Attorney’s (OCDA) Office from a high-profile mass murder case for its role in supporting and hiding the unconstitutional use of jailhouse snitches. The practice, which stretches back at least a decade, has resulted in dozens of convictions based on unconstitutional evidence. It is clear that the OCDA’s Office played a crucial role in promoting this practice. It is unclear, however, whether these prosecutors will face substantial penalties, disbarment, or jail time for their violations. Various prosecutorial bodies—including the state AG’s office and the Justice Department—may decide to prosecute. Relying on prosecutors to prosecute their compatriots, however, is a risky practice. Regardless of the possible existence of future prosecution, the judge in the matter should at least move now to hold the prosecutors in contempt of court.

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Andrew C. Whitman, ACLR Featured Online Contributor

The Demise of the "Day in Court"

7/3/2015

The speediest trial is the one that never occurs. Recent events have led to outcry about and scrutiny into the actions of police officers in the United States, with particular attention to use of force and the number of citizens shot or killed by officers each year.Some of the victims of such police violence never make it into a courtroom, or do not make it far enough past arrest to obtain or receive legal counsel. Those individuals obviously never receive a day in court. The legal and policy limits on what lawyers and judges are able to do, as well as how lawyers and judges approach their roles has eroded the idea of the “day in court”so that it no longer has substance. This erosion affects both the perception and reality of fairness and justice, in the judicial system and for society at large.

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Anna E. Bodi, ACLR Featured Online Contributor

Kids Will Be Kids, but Even Kids Deserve a Fair Justice System

6/19/2015

A recent budget proposal from the Congressional Appropriations Subcommittee highlights the significant concerns about the way resources are spent in pursuit of a fair system of justice. The proposal, as it stood in early May, proposes to defund many juvenile justice crime prevention and juvenile community programs. This measure stands in stark contrast to the progressive view the Supreme Court has taken in recent years toward youths in the justice system. In several recent cases, the Supreme Court has chipped away at the idea that juveniles are “little adults” and has recognized that they are developmentally different. Supporting juveniles by offering preventative and rehabilitative resources as an alternative to punishment or confinement is both consistent with this emerging view point and reinforced by it.

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Heidi Schumann, ACLR Featured Online Contributor

Redefining Reasonableness: Police Use of Force and the Fourth Amendment

6/13/2015

To illustrate the bounds of police use of force, last spring Sergeant Brett Parson of the D.C. Metropolitan Police Department pointed an audience of Georgetown Law students to Eric Garner’s case.In response to Mr. Garner resisting arrest for selling loose cigarettes on the street corner, an officer applied a chokehold to restrain Mr. Garner against police policy. In the struggle, Mr. Garner suffered what police refer to as a “medical emergency” and died. Sergeant Parson explained that, while the officer was wrong to ignore departmental policy, he did not use excessive force in violation of the Constitution. He argued that officers are bound only by the reasonableness test handed down by the United States Supreme Court, and a mere violation of departmental standards is not necessarily unreasonable. In essence, what he proposed is that officers may break the rules, as long as they don’t break the law. Therefore, in the case of Mr. Garner, Sergeant Parson’s point of view is that the chokehold, given the perceived threat to police safety, was a reasonable response, and therefore was not a violation of Mr. Garner’s constitutional due process protections. To accept Sergeant Parson’s argument, you must accept that it is ever reasonable to break the rules.

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Alexa Gervasi, ACLR Featured Online Contributor

Breaking Down the School-To-Prison Pipeline: Causes, Consequences, and Remedial Proposals

6/13/2015

Earlier this year, a sixth-grader in Louisiana was arrested in class and charged with “interference with an educational facility” and battery. He spent six days in a juvenile detention facility before seeing a judge. The reason for his arrest? Throwing Skittles at other students on a school bus. Similarly, a police officer in Virginia filed a disorderly conduct charge in juvenile court against an autistic sixth-grader for kicking a trash can. Unfortunately, these types of cases have become increasingly common over the past two decades. The disciplinary system in U.S. schools has drastically changed since the 1980s, becoming more rigid and applying severe punishments broadly. Police officers are arresting more and more school children for crimes that previously may have resulted only in a visit to the principal’s office or after-school detention. For example, in 2010, the police in Texas gave close to 300,000 “Class C misdemeanor” tickets to children as young as six for offenses in and out of school, which result in fines, community service and even prison time.

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Olivia C. Jerjian, ACLR Featured Online Contributor

Hopping Off the Baby Train: How the States' Interest in Banning Gay Marriage in Obergefell is Unreasonable

6/10/15

The spousal evidence privileges demonstrate that the state’s interest in marriage must be viewed as more than simply an interest in procreation. The Supreme Court in Obergefell v. Hodges is currently being asked whether the four states preventing same-sex couples to marry are violating the Equal Protection Clause of the Constitution. According to the lawyer representing the states, the state interest in promoting child-raising is sufficient to limit marriage to man-woman partnerships. Even beyond the intuitive squeamishness most people have about this purported interest, there are deeply ingrained features in our legal system contradicting this limited view of marriage.

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Andrew C. Whitman, ACLR Featured Online Contributor
 
Smells Like Trouble: Potential Changes to Probable Cause Standards after State Marijuana Legalization

5/8/15

It is just before midnight. A state trooper notices a car with a defective taillight cruising down a state highway and stops the vehicle. Upon approaching the driver’s door, the trooper notices a strong scent of marijuana. After some brief questioning, the trooper searches the vehicle based on the smell and the likelihood of finding marijuana in the vehicle. The search uncovers a glass pipe, two lighters, and a substance that appears to be marijuana; the driver is ultimately arrested and charged with misdemeanor possession of marijuana and drug paraphernalia. Now, imagine a small change. Imagine this scenario occurs in a state where possession of marijuana has been decriminalized or even legalized. The smell of marijuana could not provide the same probable cause for a warrantless search if it no longer indicates criminal activity. If having marijuana in the car would be a perfectly legal act under state law, how can such a search be legal?

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Anna E. Bodi, ACLR Featured Online Contributor

Is there Justice in “Just Deserts”?

5/8/15

At Georgetown University Law Center, students do not take the traditional “criminal procedure” course. Instead, students’ transcripts read “Criminal Justice.” For all intents and purposes, the two courses are functional equivalents, both marching through the Fourth, Fifth, and Sixth Amendments to understand the framework of constitutional guarantees in the criminal arena. However, by changing the name of the course, Georgetown Law has distinguished criminal procedure from the traditional curriculum. It seems to be saying that criminal procedure is not about structure and rule alone, but demands that attention be given the purpose behind the criminal system. Every student, as they read Katz and Miranda, must ask himself, what is justice?

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Alexa Gervasi, ACLR Featured Online Contributor

“He Is Telling the Truth”: Is There a Place for Lie-Detection Technology in Court?

5/8/15

Imagine a defendant on the witness stand testifying that he had no involvement in the crime that he is accused of. After the defendant finishes his testimony, his attorney calls another witness: an expert in a procedure called fMRI. He testifies that he used this method to determine that the defendant is in fact telling the truth when he denied involvement in the crime. The expert testifies that he used the fMRI procedure prior to this trial to determine if the defendant’s testimony was true. He determined through this procedure that the statements were in fact true, and those statements are the same as the defendant’s testimony in court.  These are the only two witnesses for the defense, and after the expert’s testimony the defense rests. At the close of trial the jurors are read their instructions and retire to the jury room to deliberate. The jury now has before them two credibility assessments to make, first the credibility of the defendant and second the credibility of the expert and his technique. Have we added to the work of the jury or subtracted from it? In either case, have we aided in justice or supplanted the purpose of the jury with a scientific test? In the past decade, several defendants have sought to admit this type of evidence in both criminal and civil suits. No court has yet let the neurological evidence in, but proponents for the test are continuing to develop the technology and push for its admission.

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Heidi Schumann, ACLR Featured Online Contributor

Jail Fail: How Not Paying Your Fines Could Land You Behind Bars

4/27/15

A few weeks ago, John Oliver presented a twenty-minute segment on debtors’ prisons in the United States, highlighting the absurdity of their existence and their functioning through humor. One of the stories he shared was that of Harriet Cleveland, a grandmother in Montgomery, Alabama. The police fined Cleveland twice in 2008 because she could not afford to pay her car insurance, but she needed to drive to work. She was unable to pay the fines and court costs, which caused her to lose her license and, ultimately, her job at a daycare center.

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Olivia C. Jerjian, ACLR Featured Online Contributor

Monitoring for Life: Satellite Surveillance of Ex-Offenders

4/6/15

In March, the United States Supreme Court reviewed a petition from a North Carolina sex offender who has served his prison time, but who nevertheless has been ordered to wear a GPS monitoring ankle bracelet for life. Torrey Grady, a recidivist sex offender, wanted the Court to decide whether forcing him to wear the ankle bracelet is an unconstitutional search. In considering the petition, the Court’s decision could have broad implications for Fourth Amendment privacy rights, extending from prior decisions such as United States v. Jones. In Jones, the Court found that “[a]ttaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.” In Grady’s case, the Court considered whether the principles of Jones should be extended to GPS tracking devices attached to people. On March 30, 2015, the Court granted Grady’s petition and issued a per curiam opinion. The Court found that the use of the GPS monitoring device constituted a search, but remanded for a determination as to whether or not the search was reasonable. Although the case poses not only Fourth Amendment issues but also considerations of due process, Grady’s prospects do not appear promising.

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Anna E. Bodi, ACLR Featured Online Contributor

The Screaming Silence: How We Can Use Meditation to Rehabilitate, Punish, and Deter

4/3/15

“I’ve always justified some of my behavior during that crime, and on Day 5 I just couldn’t get away from myself. I had to actually see it.” So said Grady Bankhead, a man currently serving a life without parole sentence for capital murder at Donaldson Prison in Birmingham, Alabama. “Day 5” refers to the midway point of a 10-day Vipassana meditation retreat for prisoners, recorded in the documentary The Dhamma Brothers. It is an example of the growing number of prison meditation programs. Such programs are typically justified as a way to rehabilitate prisoners and ease suffering. Meditation is indeed a powerful method of rehabilitation, but programs also further two other major philosophical justifications for punishment: retribution and deterrence.

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Andrew C. Whitman, ACLR Featured Online Contributor

The Wrong Way to do the Right Thing: Florida’s Drug Screening of TANF Beneficiaries

4/2/15

Earlier this month Florida Attorney General Pam Bondi declined to appeal an Eleventh Circuit decision striking down a Florida statute mandating that certain Florida welfare recipients undergo urinalysis. The ACLU along with Florida resident Luis Lebron challenged Florida’s TANF qualifications program. In December 2014, the Eleventh Circuit found that the program violated the Fourth Amendment. Florida’s opportunity to challenge that ruling before the United States Supreme Court, however, passed on March 3, 2015, signaling that for the moment drug testing would not be required for welfare recipients. In a system notorious for abuse there still remains some concern about maintaining the integrity of the welfare system. Yet, Florida’s proposed solution would require an expansion of the Fourth Amendment doctrine authorizing the government to perform an unparticularized and suspicionless search, allowing the government to invade individual privacy without sufficient justification. The Florida legislature and other state legislatures need to develop an alternative system that does not implicate the Fourth Amendment but does address some of the underlying concerns of the Florida statute.

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Heidi Schumann, ACLR Featured Online Contributor

Prison Rape and Incarcerated Juveniles in Adult Facilities: The Shortcomings of the PREA and of Farmer v. Brennan and Remedial Proposals

4/2/15

This past February, The Atlantic published Rape in the American Prison, a powerful piece highlighting the failures of the American prison system to protect incarcerated youths. The publication included harrowing first-hand accounts of minors placed in adult detention facilities who were sexually assaulted by older inmates while prison guards turned a blind eye. In its 2014 study, Human Rights Watch estimated that approximately 95,000 youths under the age of eighteen were incarcerated in adult prisons and jails at risk of suffering sexual violence. The Atlantic piece also brought to light a recent state and federal class action lawsuit on behalf of youth who had been sexually assaulted in adult prison facilities in Michigan, alleging that the prison workers failed to protect them. Even though there is existing legislation enacted to eradicate prison rape, the Prison Rape Elimination Act (“PREA”), it seems to be ineffective in achieving its goal thus far. 

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Olivia C. Jerjian, ACLR Featured Online Contributor

Driving Under the Influence . . . Of the Law

4/1/15 

Approaching a run-of-the-mill DUI checkpoint, Boca Raton attorney Warren Redlich pressed what is now known as the “DUI Flyer” against his window, informing officers that he would not be rolling down his window. After observing the flyer reading, “I Remain Silent/No Searches/I Want My lawyer,” the officers waved Redlich on without any questions. DUI Flyers are the key to the Fair DUI campaign, with the stated purpose being to “[p]rotect the innocent. Focus on education over punishment.” While the flyer was successful in Redlich’s case, the effectiveness of Fair DUI’s mission has come under attack by police officers and lawyers. Should the controversial flyer make its way to the courts, will police be able to demand that individuals roll down their windows? Through this post, I will argue why the answer is “probably not.”

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Alexa Gervasi, ACLR Featured Online Contributor

Your Honor, the Defense Asks for a Meaningful Bail

3/18/15

The number of people that remain detained pending trial because they cannot post bail is staggering. Courts deny defendants bail because they may pose a danger to society. But, when a defendant is given a bail amount, he is given an opportunity to his liberty prior to trial because he is not a threat to society. Whatever the amount may be, the logical presumption is that the defendant should be able to afford bail; otherwise being detained based on inability to pay would be an effective denial of bail. So, what is the point of bail if it results in incarceration?

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Zina Makar, Legal Fellow at the Open Society Institute-Baltimore City

Keeping Up with Technology: A Constitutional Problem

3/6/15

The struggle to balance the breadth of the government’s ability to investigate actions by its citizens against the interest in protecting individual privacy from government invasion has had a long history, and is apparent even in the Constitutional language of the Fourth Amendment, itself. Many scholars believe that the Fourth Amendment protections evolved from a theory of trespass, and the language and nature of the protection afforded through interpretation of the Fourth Amendment reflected a desire to protect property from trespass by the government. As technology developed and the nature of the intrusions changed there was a paradigm shift in the interpretation of the privacy interest protected under the Fourth Amendment. Alongside the traditional trespass theory a new standard developed in which invasions of privacy are measured based on whether an action invaded a person’s “reasonable expectation of privacy.” This standard, which evolved as a result of the evolution of technology, has like its predecessor become outdated. It fails to adequately protect the interests of citizens against the new forms of privacy intrusion resulting from the advancements in technology employed by the government.

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Heidi Schumann, ACLR Featured Online Contributor

Prolonging Traffic Stops for Canine Sniffs: Why the Supreme Court Should Reverse Rodriguez v. United States

3/5/15

A little past midnight on March 27, 2012, Dennys Rodriguez was driving on a highway in Nebraska with a friend. An officer with a drug sniffing dog in his patrol vehicle saw Rodriguez’s car swerve into the shoulder of the highway for a few seconds, breaking one of Nebraska’s traffic statutes, and pulled Rodriguez over. Rodriguez handed his driver’s license, registration, and proof of insurance to the officer. He explained that he was trying to avoid a pothole, but the officer was skeptical of this justification. He noticed that the passenger seemed nervous and that the car had a strong scent of air freshener. The officer asked Rodriguez to step out the car – an order which Rodriguez followed. However, when the officer asked Rodriguez to accompany him to his patrol car, the driver asked if he had to. Surprised, the officer told him he did not, and Rodriguez preferred remaining in his own vehicle. In the eyes of the officer, this refusal was a subconscious sign of guilt, even though Rodriguez’s record turned out to be clean, as well as that of his passenger.

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Olivia C. Jerjian, ACLR Featured Online Contributor

Como Se Dice “Fair Trial”?

3/5/15

“Who gave this sonofabitch a green card?” To actor Sean Penn, this was the appropriate question to ask before bestowing the 2015 Academy Award for Best Picture on director Alejandro González Iñárritu. Winning for his film “Birdman,” Iñárritu graciously swarmed the stage with the film’s cast, approached the microphone, and laughed that he was elected to speak because he had the worst English of anyone on stage. Though intending their comments to be jovial, both Penn and Iñárritu represent a serious problem that burdens the American criminal justice system—ignorance and insensitivity for cultural diversity. In the trial system, there is no guarantee that a person lacking English proficiency will have access to an interpreter, certainly inhibiting their right to a fair trial.

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Alexa Gervasi, ACLR Featured Online Contributor

The Prosecutor as Sentencer: Prosecutorial Discretion in Weighing Collateral Consequences

3/4/15

The Department of Justice should make it clear that prosecutors have discretion in deciding whether to consider collateral consequences in non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs). NPAs and DPAs are a “third way” for federal prosecutors, between going forward with a prosecution against a corporation and exonerating them completely. They are essentially a settlement between the corporation and the prosecutorial agency, often including monetary payments and promises to reform the corporation’s practices and compliance systems. They are typically performed outside of court. Collateral consequences occur when an investigation or prosecution creates consequences not directly imposed by any agreement or sentence. In the corporate law context, these can include, for example, additional civil law suits, debarment, and systemic risk associated with sweeping penalties.

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Andrew C. Whitman, ACLR Featured Online Contributor

Threatening Beats or Protected Speech?

3/2/15

It isn’t every day that United States Supreme Court Chief Justice John Roberts quotes Eminem’s rap lyrics during oral arguments. In a case argued before the Supreme Court in December, the Chief Justice recited some of Eminem’s more inflammatory lyrics from a song on The Slim Shady LP. Justice Roberts was trying to determine what makes a statement a threat and what test should be applied in that determination. In the case pending before the Court, Elonis v. United States, Anthony Elonis was sentenced to prison for posting his own rap lyrics on Facebook, including comments about killing his wife and an FBI agent. Elonis claims that, like Eminem, he did not intend the lyrics to be threatening, and so he should be protected by the First Amendment and should not have been convicted.

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Anna E. Bodi, ACLR Featured Online Contributor

Videotaping Justice: How Illinois Has Dealt With the Problem of Police Suggestion and How it Might be Used at Trial

2/6/15

Illinois’s new law seeking to make police lineups less susceptible to bias requires lineups, among other requirements, to be videotaped and conducted by a neutral police officer. These steps will help to curb police suggestion to witnesses and will have profound impacts on trials in Illinois. In addition, though an unintended consequence of the law, videos obtained in the course of conducting lineups and photo arrays could prove to be extremely probative evidence. In the search for the most accurate record of a witness’s memory, a video of the very first identification of a suspect should prove to be quite instructive. For these reasons, it should be adopted by other jurisdictions.

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Andrew C. Whitman, ACLR Featured Blogger

It’s Not Just a Name: DNA as Identity in Maryland v. King

2/6/15

The Supreme Court’s decision in Maryland v. King permitted the collection and analysis of DNA under the Maryland DNA Collection Act. The Maryland statute allowed for the collection of DNA from a defendant charged with a crime of violence or burglary or an attempted crime of violence or burglary. The sample is kept until arraignment, at which point it can be processed through a database called CODIS.  If the defendant is not convicted, then the sample is automatically destroyed. The Court found that this system of DNA collection and comparison did not violate the Fourth Amendment. The Court in King disregarded important privacy interests, focusing on the specific limitations that the Maryland statute put in place to protect individual privacy. In a recent decision from the California Supreme Court, the privacy interests not acknowledged or credited by the United States Supreme Court were brought to the forefront, and the statute permitting DNA collection and analysis in California was correctly found to violate its citizens’ privacy interests.

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Heidi Schumann, ACLR Featured Blogger

Stand Your Ground for Victims of Domestic Violence: A Gendered Narrative for Self-Defense

2/5/15

After spending 1,095 days—approximately three years—in jail, Marissa Alexander was finally released this past January, subsequent to pleading guilty to aggravated assault. Alexander was incarcerated in 2012 after firing a single gunshot towards the ceiling of her home in an attempt to scare her estranged husband, Rico Gray. In the events leading up to firing the shot, Gray broke through the locked bathroom door, grabbed Alexander by the neck, and shoved her into the bathroom door. Struggling, Alexander made her way to the garage. She tried to escape, but the garage door would not open. Alexander then grabbed her gun from her car and returned to the house, uncertain whether Gray had left. When Gray saw Alexander with a gun, he “charged her ‘in a rage,’ saying, ‘Bitch, I'll kill you.’” Frightened, Alexander shot the gun at the ceiling. No one was harmed.

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Olivia C. Jerjian, ACLR Featured Blogger 
 

Rehashing the Way We Criminalize

2/5/15

A pair in Michigan committing adultery are felons, facing thousands in fines and up to four years in prison. A person in Mississippi found guilty of using profanity in a public place, with two or more witnesses, may find himself with a $100 fine and spending up to thirty days in the county jail. For each act of premarital intercourse, individuals in Virginia may expect to pay a $250 fine. Criminal statutes concerned with regulating “morals” and “decency” are pervasive in our society, yet there is a disparity between those that are enforced and those that have been laughed out of relevance. This disparity can only be explained by examining the condemning eye of the public.

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Alexa Gervasi, ACLR Featured Blogger
 

Money in the Mix: Modest Modifications of Civil Asset Forfeiture

2/5/15

Last month United States Attorney General Eric Holder announced what the media reported as a “sweeping check on police power.” Holder issued an order calling for changes to the federal civil asset forfeiture program, under which law enforcement can seize cars, money, and other valuables. However, upon closer examination, the Attorney General’s policy changes are far from sweeping. Holder’s new limits on civil asset forfeiture are largely cosmetic changes to a program that allows law enforcement to seize individuals’ property without charging them with a crime.

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Anna E. Bodi, ACLR Featured Blogger
 

Holt v. Hobbs and Prisoners’ Litigation Rights

1/26/15

One of the priorities of prisons is to moderate individualism, engraining in prisoners that no one inmate is superior to or deserves more than another. In some prisons, this policy extends as far as to prohibit tomato slices under the reasoning that no two slices of tomato are equal.[1] The policies of the prison system fail to reach, however, the uniqueness of religious freedom. Prisons (both public and private) are bound by the Religious Land Use and Institutionalized Persons Act (RLUIPA), which, in part, prohibits prisons from substantially burdening the religious rights of prisoners.[2] Where a prisoner believes that his religious freedoms have been substantially burdened, he has the right to bring a lawsuit against that prison, subject to statutory restrictions imposed on the litigation rights of prisoners.

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Alexa Gervasi, ACLR Featured Blogger

The Difference Between “ I Don’t Want to Grow Up” and “I Can’t Grow Up”

1/22/15

A 2013 article published in the Ohio State Journal of Criminal Law was written by an offender who at the age of fourteen was sentenced to life without the possibility of parole. The author, Jeremiah Bourgeois, has served over 20 years in prison after being found guilty of the brutal murder of a witness who testified against his brother. Throughout his time in prison he studied the law, earned a paralegal certificate, and took classes toward a bachelor’s degree. His article is of similar quality to the many that are published in law journals around the country, and one of Bourgeois’s teachers stated that, “[Bourgeois’s] mind has blown me away in classes.” In 2012, the Supreme Court decided Miller v. Alabama, which invalidated the sentencing scheme under which Bourgeois was sentenced, and will potentially result in his freedom.

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Heidi Schumann, ACLR Featured Blogger

Phones, Fingerprints, and the Fifth Amendment

1/21/15

Last year, cell phone users who follow United States Supreme Court decisions received landmark news about their personal privacy. In Riley v. California, the Court reversed a lower court ruling and unanimously held that, in general, without a warrant, the police may not search information contained on a cellphone seized from an individual who has been arrested. The Court found that cell phones are both quantitatively and qualitatively different from other objects that an arrestee might have on their person. In this day and age, “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” As a consequence, the Court refused to extend the search incident to lawful arrest exception to the digital contents of cell phones. Instead, “officers must generally secure a warrant before conducting such a search.”

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Anna Bodi, ACLR Featured Blogger

The Supreme Court Should Overturn U.S. v. Newman and Recognize a New Type of Insider Trading Liability

1/20/15

The Supreme Court needs to make sure that the limits courts have placed on tippee insider trading liability do not render insider trading laws incapable of meeting their underling policy goals. In United States v. Newman, the Second Circuit clarified its precedent on insider trading and limited the ability of prosecutors to charge “downstream” tippees under Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5. “Tippees” are those who may be held liable when they trade on inside information received from an insider in breach of a fiduciary duty. From this point forward, prosecutors must prove that a defendant tippee actually knows that the original tipper received a personal benefit by releasing material, non-public information. The holding in Newman correctly interprets Dirks, but the reading will make it easier for traders to avoid insider trading liability by setting up systems of plausible deniability. This goes against the policy arguments courts and academics have set out as justifications for insider trading laws. The Supreme Court should thus grant certiorari and interpret 10(b) to include “enterprise” liability for tippees in order to combat such a policy outcome.

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Andrew C. Whitman, ACLR Featured Blogger

Criminals without a Choice: Why the Eighth Amendment Alone Cannot Protect the Homeless

1/20/15

In November 2014, Arnold Abbott was arrested and charged in Fort Lauderdale, Florida, for handing out food to the homeless in a park through his charitable organization. Fort Lauderdale is one of many cities with restrictive food sharing laws, requiring charities feeding the homeless to obey strict food service restrictions and to provide toilet facilities. Abbott, who faced 60 days in jail or a fine of $500, sued the city of Fort Lauderdale, arguing that the ordinance was unconstitutional. A few weeks later, Judge Thomas Lynch of the Broward Circuit Court granted a stay of enforcement, temporarily lifting the ordinance and allowing Abbott to continue feeding homeless individuals.

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Olivia C. Jerjian, ACLR Featured Blogger

Being Efficient with the Court's Time: Why the Supreme Court Should Decline to Hear Cummings v. Illinois

12/16/14

Incorporation of the Fourth Amendment through the Due Process Clause of the Fourteenth Amendment was a sound decision. The Fourth Amendment’s federalized baseline governing police conduct assures that the police will respect citizens’ privacy rights while standardizing the circumstances under which the police my validly conduct searches and seizures. Nevertheless, there are some downsides to incorporation, perhaps the most obvious of which is the complicated, sometimes contradictory rulings the Supreme Court has handed down in response to the great variety of interactions between the police and those they protect. 

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Logan Dwyer, ACLR Blog Editor

Preventing Run-On Sentences

12/9/14

On November 4, 2014, California voters passed Proposition 47, reclassifying certain low-level drug and theft crimes from felonies to misdemeanors. The passage of the ballot initiative occurs against the backdrop of decades of legislation and litigation over California’s criminal sentencing and overcrowded prison system. This post surveys the history of sentencing and prison reform in the state and analyzes the prospective impact of Proposition 47 on individual offenders and the prison system. 

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Rosalie Winn, ACLR Blog Editor

The Smell of Years-Old Fish

12/3/14

There was an interesting moment in the oral argument for Yates v. United States,1 in which Justice Scalia asked the assistant from the Solicitor General’s office if the prosecutor who brought the case in Yates was “the same guy that brought the prosecution in Bond last term?” The comment might have been simply a sarcastic dig from a Justice who has made a career out of biting sarcasm. But I believe it reflects Justice Scalia’s (and the Court’s) concern about overzealous prosecutors—a concern that is rooted in a series of recent cases involving seemingly absurd prosecutions. This blog post will catalog how we got to this point to show why this seemingly minor case about fish touched a nerve with the Justices.

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William Hornbeck, ACLR Blog Editor

Oops! Mistakes of Law and the Fourth Amendment

10/2/14 

This post, centered on State v. Heien, argues that searches or seizures based on a police officer’s mistake of law should be barred by the Fourth Amendment. To illustrate this problem, consider the following hypothetical, based on the facts in Heien. Suppose a police officer notices that one of the brake lights on a passing car is not working and, on the basis that a burned-out brake light violates the traffic code, pulls the car over. As the officer is writing the ticket, suppose the driver is acting suspiciously. Since the officer has probable cause to search the car—and because this is a criminal law blog—he does so and finds a kilogram of cocaine in the car.  

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Logan Dwyer, ACLR Featured Blogger

What’s In a Name: The Chief Justice’s Official Title

7/28/2014

On October 3rd, 2005, John Roberts ascended the bench for his first day as Chief Justice. To the surprise of many observers, he abandoned the robe with golden stripes that his predecessor and former boss William Rehnquist had introduced. But at the same time that he returned to the plain black robe of Rehnquist’s predecessors, Chief Justice Roberts left unaltered a different distinguishing feature that another prior Chief Justice had introduced. He kept the formal title used by the last 12 Chief Justices of “Chief Justice of the United States,” rather than return to the title “Chief Justice of the Supreme Court of the United States,” which had been used by Chief Justices from Jay to Chase. In doing so, he preserved a little-known legacy of aggrandizement and politicking that the Supreme Court should not be entirely comfortable with. Chief Justice Roberts should restore the Chief Justice’s official title to “Chief Justice of the Supreme Court of the United States.”

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William Hornbeck, ACLR Blog Editor

Noel Canning, Heller, and Scalia's Inconsistent Originalism

6/27/2014

“The Second Amendment therefore is, or rather, should be, an anachronism-"essentially an historic relic, something whose original purpose has disappeared." The need it was designed to fill no longer exists … That does not justify "read[ing] it out of the Constitution" and … I would not do so; but neither would I distort the Amendment’s original meaning, as the majority does, to ensure a prominent role for the Second Amendment in an era when its influence is far more pernicious than beneficial.” – Justice Antonin Scalia

Justice Scalia didn’t really say that, of course. But replace “Second Amendment” with “recess appointments clause,” and that passage is an accurate quote from Scalia’s concurrence in NLRB v. Noel Canning, No. 12-1281, 2014 WL 2882090, at *34 (June 26, 2014). This striking section of Scalia’s argument demonstrates the inconsistency of his “originalist” constitutional interpretation.

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Daniel Colbert, ACLR Senior Blog Editor

Doctrines Collide: The Special Needs Test and the Consent Exception in Scott v. AFSCME

4/18/2014

In Scott v. AFSCME, Florida Governor Rick Scott is asking the Supreme Court to clarify how two separate parts of Fourth Amendment jurisprudence interact. First, the “special needs” doctrine authorizes some searches without a warrant, probable cause, or individualized suspicion if the search passes a balancing test. There is also the more common exception to the warrant requirement carved out for consent: if a suspect consents to a search, it is generally allowed under the Fourth Amendment. The question in Scott is how consent affects special needs searches—does it merely weigh in favor of the government’s side of the balancing test, or does it authorize searches that would otherwise be unreasonable under the special needs test? This post, will examine the origins of both these doctrines and argue that consenting to an otherwise unreasonable search cures that search of any Fourth Amendment defect. Therefore, if the Court decides to hear Scott, it should keep the consent and special needs exceptions separate, while clarifying the high bar to qualify for either. 

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Logan Dwyer, ACLR Featured Blogger

Amicus Curiae, Hostem Civis

4/18/2014

The docket line is familiar to most Supreme Court litigators: “Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.” But for criminal defendants seeking Supreme Court review of their state convictions, seeing that docket line can cause either mild annoyance or serious concern. To preserve the proper balance between state and federal law enforcement, the Solicitor General should stop appearing in oral arguments between criminal defendants and the states.

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William Hornbeck, ACLR Featured Blogger

Operation Choke Point: Using an Old Tool in a New Way

4/18/2014

Prosecuting financial scams is incredibly difficult. By the time prosecutors identify fraudsters and gather enough evidence to bring a case, the fraudsters pack up shop and disappear, only to pop up again somewhere else. This leaves agencies like the Department of Justice wasting resources playing a perpetual game of whack-a-mole while consumers are constantly exposed to scams. Seeking a solution to this problem, the Justice Department created Operation Choke Point, which sought to identify fraudsters by requiring banks and payment processors to report evidence that their customers are committing fraud.

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Daniel Colbert, ACLR Featured Blogger

Where is a Corporation’s Conscience?: What Criminal Law Has to Teach Regarding Corporate Religious Exemptions and Hobby Lobby

3/25/2014

One of the more interesting aspects of Sebelius v. Hobby Lobby Stores, Inc., arguably the most controversial case the Supreme Court will hear this term, is a question that criminal law has struggled to answer for over a century: How does one identify the conscience of a corporation? In enforcing statutes that require an element of intent against corporations, courts have struggled to identify the source of corporate intent. The criminal law that has evolved in that area is potentially instructive as the Court considers whether a similarly personal attribute—religiosity—can be imputed to a corporation. Decades of trial and error have led courts to the same conclusion: Only human beings have consciences.

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Daniel Colbert, ACLR Featured Blogger 

Why Can’t We Be Friends?

3/19/2014

Recently, a disturbing trend has emerged in civil and criminal Supreme Court cases alike: Justices joining each other’s opinions in full except as to a footnote or two. Whatever drives Supreme Court Justices to refuse to join each other’s footnotes, they need to find a way to resolve their differences without presenting such a divided appearance to the public.

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William Hornbeck, ACLR Featured Blogger

The Sound Of Silence: Doyle v. Ohio’s Continued Vitality

3/19/2014

This post begins by examining the two kinds of silence present in People v. Clary.[1] The first is a defendant’s choice not to testify at his or her first trial. Evidence of this choice is admissible in a second trial on the same charges under Raffel v. United States.[2] The second kind of silence is a suspect’s refusal to speak to the police once he or she is read the Miranda warning. Evidence of this kind of silence is not admissible should the suspect be tried, as the Supreme Court held in Doyle v. Ohio.[3] At the trial level in Clary, the Superior Court of Michigan incorrectly allowed evidence of both kinds of silence to be presented to the jury.[4] The Michigan State Supreme Court ultimately reversed Clary’s convictions, citing Doyle.[5] Michigan sought review by the Supreme Court, seeking to have Doyle “revisited and overruled” in light of the original meaning of the Fifth Amendment’s self-incrimination clause.[6] As the relevant precedent shows, the Supreme Court was correct in declining to grant certiorari. 

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Logan Dwyer, ACLR Featured Blogger

Overplaying Their Hand: Overly Broad Interpretive Canons Applied to Including-but-not-Limited-to Clauses

3/4/2014

Lawrence DiCristina operated a poker club in the back room of a Staten Island warehouse in which he operated a business selling electric bicycles. At the time, he probably did not think these games would get him involved in a dispute over canons of statutory construction. When DiCristina was charged with violating the federal Illegal Gambling Business Act (IGBA), he argued that although the poker games clearly violated state law, they did not fall under the federal definition of gambling.

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Daniel Colbert, ACLR Featured Blogger

Abstract Questions, Practical Consequences: Excessive Force and Qualified Immunity in Tolan v. Cotton

2/22/2014

Tolan v. Cotton, now on petition for writ of certiorari before the Supreme Court, is interesting for two reasons. First, the district court that heard Tolan incorrectly found that the defendant police officer did not use excessive force in shooting a kneeling, unarmed 23-year-old on his own porch with his parents watching.At the very least, reasonable minds can disagree as to whether excessive force was used, so the case should have gone to a jury instead of being dismissed on summary judgment. Second, examining the grounds upon which the petitioner in Tolan appeals, the Fifth Circuit’s analysis of the qualified immunity issue is flawed and should be immediately corrected by the Court.

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Logan Dwyer, ACLR Featured Blogger

This is a Red Line Train to Judiciary Square

2/17/2014

From October of last year until a couple of weeks ago, Metro riders who left the Judiciary Square metro station through the south entrance faced a red-and-white billboard advocating jury nullification for victimless crimes.[1] The billboard’s message and its potential impact on trials held in the state and federal courthouses in Judiciary Square bring to mind the broader academic debate over jury nullification. In a city like DC where a large number of jurors and defendants are African-Americans, the billboard also brings to mind Professor Paul Butler’s argument in favor of race-based jury nullification for victimless crimes. The billboard illustrates the likelihood that any attempts like Professor Butler’s to limit jury nullification to the African-American community will ultimately be unsuccessful.

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William Hornbeck, ACLR Featured Blogger

Combatting Notario Fraud: New Tools Needed to Protect Consumers of Immigration Services

1/25/2014

As Congress debates comprehensive immigration reform, one of the widespread abuses it should address is one of which immigrants are the victims: notario fraud. Narrowly defined, notario fraud is the unauthorized provision of legal services to individuals seeking help with their immigration status, but it can also include others falsely holding themselves out as experts in immigration.

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Daniel Colbert, ACLR Featured Blogger

Snapped: Prosecuting Carol Anne Bond

1/12/2014

Bond v United States has it all: a set of facts reminiscent of Jerry Springer, two trips to the United States Supreme Court, and potentially massive implications for our federalist system. While this case will likely propel Carol Anne Bond into the federalism revolution pantheon alongside Alfonso Lopez, Christy Brzonkala, and Angel Raich, the Bond case could also have an immediate practical impact on the behavior of state and federal prosecutors. If the Bond case makes prosecutors more aware of how their actions can implicate federalism, it could help achieve some of the most defendant-friendly goals of the federalism revolution. 

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William Hornbeck, ACLR Featured Blogger

A Brave New World With Such Data In It: Cell phones and the Search Incident to Arrest Doctrine

1/6/2014

Imagine that you are pulled over and arrested for failing to wear your seatbelt. As the officer pats you down in anticipation of taking you downtown, he finds your cell phone in your pocket. He unlocks the phone and you protest—the phone contains sensitive pictures, text messages, and documents which are perfectly legal but extremely confidential, personal, or embarrassing. Your objections, however, have piqued the officer’s curiosity, and he starts looking through your phone. “Wait,” you say, “nothing on the phone presents a danger to you, and since the phone is outside of my control I can’t destroy any relevant evidence on it. You have no good reason to search my phone, and the Fourth Amendment prohibits unreasonable searches.” As he flips through the miniature record of your life, the officer responds “I can search your phone under the search incident to arrest doctrine; the mere fact that you are lawfully under arrest makes this search completely reasonable.”

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Logan Dwyer, ACLR Featured Blogger  

Foreclosing Restitution: When Has a Lender’s Property Been “Returned?”

11/26/2013

On October 21st, the Supreme Court granted cert. in Robers v. United States to resolve a circuit split in the interpretation of the Mandatory Victims Restitution Act (MVRA). In view of increasing mortgage fraud litigation, the question presented to the court will arise many, many times in the lower courts.

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Daniel Colbert, ACLR Featured Blogger

The Best Way to Lose: The Question of Kansas v. Cheever

11/14/2013

It was not the sort of question Neal Katyal was hoping for from Justice Sotomayor: “Assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?” While Justice Sotomayor’s question brought ripples of laughter through the courtroom, a great deal hung on the answer: the fate of death row inmate Scott Cheever (Katyal’s client) and the scope of the Fifth Amendment’s privilege against self-incrimination. If the Supreme Court does reverse the decision of the Kansas Supreme Court in Kansas v. Cheever, its reasons for doing so will either represent a minor hiccup in Fifth Amendment case law or a major obstacle to criminal defendants making arguments based on their mental state. For both procedural and substantive reasons, the Court should use the narrowest possible rationale to reverse the Kansas Supreme Court and remand the case for further proceedings.

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William Hornbeck, ACLR Featured Blogger

Tightening Up the Anonymous Tip Doctrine: The Supreme Court’s Opportunity in Navarette v. United States

11/9/2013

Can the police, on the basis of an anonymous tip containing a description of your car alleging that you were driving recklessly, pull you over to investigate? This question, posed to the Supreme Court in Navarette v. California is an important one practically. Navarette, however, will also be a test of how strictly the Court will adhere to the decade-old Florida v. J.L., in which it found a Terry stop based on an anonymous tip of illegal firearm possession unconstitutional without more corroborating evidence. The Court should recognize that interpretations of J.L. in the lower courts do not sufficiently protect against police searches instigated by malicious or sparse tips and find for the petitioners in Navarette. 

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Logan Dwyer, ACLR Featured Blogger

An Unhealthy Inquiry: First Amendment Retaliation Goes to Prison

10/26/2013

When a prisoner violates prison rules, a guard can give him or her a citation depriving the prisoner of some of his or her privileges (e.g., TV viewing time). Unsurprisingly, many prisoners who have sued their guards for various constitutional violations find that they now receive more citations than their less litigious fellow prisoners. But when prisoners challenge their citations in court, courts in some circuits ask only whether the citation was justified by the prisoner’s misconduct (the so-called “checkmate rule”). Other circuits go beyond the justifications for the citation and look at whether the citations were retaliatory. This blog post argues that the former approach (the checkmate rule) is inconsistent with the First Amendment and with the Supreme Court’s jurisprudence on First Amendment retaliation.

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William Hornbeck, ACLR Featured Blogger

Victims or Fraudsters?: Telling Them Apart in the Wake of the Subprime Mortgage Crisis

10/26/2013

Lacey Phillips and Erin Hall were two of millions of Americans who received subprime loans from unscrupulous lenders in the years leading up to the financial crisis. In 2006, the couple applied for a loan from a reputable bank and were turned down. A short time later, they found a mortgage broker – Brian Bowling – who directed them to Fremont Investment & Loan. There is no indication the couple knew that Bowling had a history of producing fraudulent loan documents or that Fremont was a disreputable institution that would soon face prosecution for its predatory practices. Fremont specialized in “stated income” loans – known in the industry as “liar’s loans” because they required no proof of the borrower’s income – which it quickly repackaged into mortgage-backed securities and sold, turning a profit despite the high risk of default. Phillips and Hall applied for and received a loan, purchased the house, and soon lost it when they defaulted on the mortgage.

 

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Daniel Colbert, ACLR Featured Blogger

Maryland v. King: A Visual Guide Revisited

6/19/2013

Soon after oral argument in Maryland v. KingI posted to this site a Visual Guide that aimed to “highlight[] the most representative and influential opinions” behind the Fourth Amendment doctrinal dispute in that case. Now that the Supreme Court has rendered judgment in King, the time has come to revisit the Guide, assess its predictive analysis, and update the prior maps to reflect the new doctrinal territory. This post does just that.

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Colin Starger

Stay Out of It: United States v. Davilla and the Costs of Judicial Interference in Plea Discussions

4/20/2013

In Missouri v. Frye, Justice Kennedy astutely observed that plea bargaining is not just “some adjunct” to the criminal justice system; it is the criminal justice system. With over 95% of criminal cases being resolved with guilty pleas, defendants are under great pressure from prosecutors, and often their own counsel, to accept plea bargains in order to avoid long and costly trials. When judges get into the plea bargaining business, the pressure for defendants to plead guilty is exponentially increased. 

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Regan Gibson, ACLR Featured Blogger

Reassessing Freeman v. United States in the D.C. Circuit

4/3/2013

I recently wrote a post about the precedential effect of splintered Supreme Court decisions, analyzing theMarks narrowest opinion test in light of the D.C. Circuit’s decision interpreting Freeman v. United States, 131 S.Ct. 2685 (2011) (discussing the circumstances under which a plea agreement under Fed. R. Civ. P. Rule 11(c)(1)(C) should be understood as “based on” the Sentencing Guidelines). See United States v. Duvall, No. 10-3091, 2013 U.S. App. LEXIS 1658 (D.C. Cir. Jan. 25, 2013) (plea agreement “based on” the Guidelines to the extent explicitly referenced in the agreement). However, recently a new decision, United States v. Epps, No. 11-3002, 2013 U.S. App. LEXIS 2866 (D.C. Cir. Feb. 12, 2013), addressed the issue discussed in that post, resolving it in accordance with Senior Circuit Judge Williams’ concurrence.

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David McAleer, ACLR Featured Blogger

 

Review: Susannah Sheffer, Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys

4/3/2013

In the debate over the death penalty, those on both sides of the issue cite the impact of capital punishment on victims, their families, the defendants, and the public. Conspicuously absent from the debate are those who have arguably the most intimate view of capital punishment: the defense attorneys who fight for their clients’ survival until the last moment. In her new book, Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys, Susannah Sheffer explores the small community of post-conviction capital defense attorneys who take cases in the last stages before executions. Through a series of interviews with twenty attorneys, Sheffer investigates the motivations of those who take on these cases, and the impact their unusual work has on both their professional and personal lives. The book does not present a balanced analysis of the legality or morality of capital punishment; not surprisingly, the interviewees are all outspoken critics of the death penalty. Rather, it is a testimonial of the impact of capital punishment on those who witness its effects over and over. Whatever your view on capital punishment, it is hard not recognize the emotional toll it takes on these advocates. 

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Regan Gibson, ACLR Featured Blogger

Corporate Disconnect? Dissonance Between the Treatment of Corporate Subsidiaries in Common Law and Criminal Antitrust

4/3/2013

Different areas of the law treat the relationship between a corporation and its wholly owned subsidiary differently. Corporate law (while varying from state to state) will generally treat the two entities separately, except under specific circumstances governed by the doctrine of “piercing the corporate veil.” In interpreting the Sherman Act’s prohibition in collusive agreements, however, a corporation and its subsidiary are treated as a single entity. Thus, while one area of law presumes a corporation and its wholly owned subsidiary are distinct, another invariably treats them as inseparable.

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Kevin Scura, ACLR Featured Blogger

A Visual Guide To Maryland v. King

3/20/2013

During last month’s oral argument in Maryland v. King, Justice Alito announced that he regarded King as “perhaps the most important criminal procedure case that this Court has heard in decades.” Justice Alito’s extraordinary statement derives from the recognition that King could determine the relevance of the Fourth Amendment for the next generation. By mapping the underlying doctrinal debate in King, this Visual Guide reveals the critical Fourth Amendment choices facing the Court and illustrates the case’s potential to shape the meaning of privacy for the new age of surveillance.

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Colin Starger
Reconsidering the Sixth Amendment and Jury Overrides

3/5/2013

Three states invest elected judges with the power to impose the death penalty despite a jury’s recommendation of life in prison.  Jury overrides are rare in Florida and Delaware but a near-institution in Alabama, where one-fifth of current death row inmates arrived by judicial fiat, despite what the jury thought.  An Alabama judge can impose a death sentence more easily than a directed verdict in a routine slip-and-fall case.  All he needs to do is find that the aggravating circumstances of a capital case outweigh the mitigating circumstances.

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Andrew George and Aaron Rabinowitz

So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees

2/17/2013

On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statute that authorizes the collection of DNA from individuals arrested for certain felonies.  In brief, the case concerns Alonzo King, who was arrested in 2009 on first and second-degree assault charges, and was subjected to DNA collection under the 2008 amendments to the Maryland DNA Collection Act. The Act authorizes authorities to collect DNA samples from those arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Samples taken from arrestees are analyzed and profiles are uploaded in the FBI’s Combined DNA Index System (“CODIS”), where they can be compared against samples taken from crime scenes.  King’s profile was uploaded into the system and a few months later (but before his trial on the assault charges) was matched with an unknown sample collected after an unsolved sexual assault.  The CODIS match was used as probable cause for a search warrant to collect a new sample from King and he was subsequently indicted and convicted for first-degree rape. King was sentenced to life in prison.

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Regan Gibson, ACLR Featured Blogger

United States v. Duvall: Splintered Decisions and the Narrowest Grounds Interpretation

2/17/2013

Though plurality decisions have existed throughout Supreme Court history, they have risen steadily over the years. Moreover, splintering has become the product of ideological differences, and in some cases may not be about the substantive legal question under consideration at all. The Supreme Court attempted to provide guidance to lower courts on how to determine precedent within such decisions in Marks v. United States, 430 U.S. 188, 193 (1977). Marks held, in the case of a fragmented decision supporting a holding, with no single rationale explaining the result, that “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, (1976) (opinion of Stewart, Powell, and Stevens, J.J.)) Since 1977, this has become controlling precedent, applied by most circuits when deciding similar cases.

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David McAleer, ACLR Featured Blogger

Book Review: David A. Harris, FAILED EVIDENCE: WHY LAW ENFORCEMENT RESISTS SCIENCE (New York University Press, 2012)

2/17/2013

Over 250 innocent people have been exonerated through DNA evidence since it first appeared in criminal courts in the early 1980's. Using this popular hook, David Harris engages more broadly with forensics in his book Failed Evidence, exploring why law enforcement and prosecutors have shown such marked reluctance to incorporate a modern understanding of the scientific method. 

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David McAleer, ACLR Featured Blogger

HSBC and Money Laundering: “Too Big to Indict”

2/15/2013

In December, the Department of Justice (DOJ) ceased its prosecution of the international banking giant HSBC for money laundering, in return for the bank accepting a plea deal in which it paid a record $1.92 billion (a $1.2 billion forfeiture along with approximately $700 million in remedial measures). While the sum may seem impressive (although not compared to HSBC’s annual $46 billion in profits), and its status as a record punishment provides some solace for fans of justice, there is no question that HSBC could have faced much worse. The New York Times wrote, “[s]tate and federal authorities decided against indicting HSBC in a money-laundering case over concerns that criminal charges could jeopardize the world’s largest banks and ultimately destabilize the global financial system.” Problematically, no top-level executives were indicted. Needless to say, this case portends poorly for the rule of law, driving a tank-sized hole through the notion that the criminal justice system is something that applies equally to all citizens.

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Kevin Scura, ACLR Featured Blogger

Review: Rebecca Tiger, Judging Addicts: Drug Courts and Coercion in the Justice System, New York University Press (2013)

1/28/2013

In her new book, Judging Addicts: Drug Courts and Coercion in the Justice System, sociologist Rebecca Tiger explores what she believes are the weaknesses of drug courts, a system where addicts are given the option to avoid traditional criminal prosecution and choose court-ordered drug treatment instead.  Tiger challenges the view that drug courts, which operate on the philosophy that addicts are best served by coerced treatment rather than traditional incarceration, help to shift substance abuse from a criminal justice issue to a public health issue.  She criticizes the now widely-accepted notion that drug addiction is an incurable disease characterized by inevitable relapse that can only be managed through institutional treatment and eventual abstinence.  While her conclusion that a “harm reduction” approach is the best option for dealing with our nation’s drug problem is unlikely to take hold any time in the near future, the book does stimulate a critical analysis of the “success” of drug courts, and what they really mean in the larger context of the criminal justice system.  

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Regan Gibson, ACLR Featured Blogger

Cops And Robbers: The Use of Cell Tower Dumps To Investigate Bank Robberies

1/26/2013

The use of cell tower dumps is a striking example of the changes in investigation forced by rapid technological change, and the attendant privacy issues that arise. Two recent bank robbery cases in federal court provide good examples of law enforcement’s increasing use of cell tower dumps, a relatively obscure investigatory tool.  “A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time.” While investigating crimes which were likely coordinated using cell phones the cell tower dump yields information regarding the specific locations and times when perpetrators likely would have used their phones.  Once law enforcement officials have this cell tower data, they then analyze the results to look for repeat telephone numbers that hit towers near multiple crime scenes. 

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Brian L. Owsley, United States Magistrate Judge, United States District Court for the Southern District of Texas

 

ASSOCIATIONAL PRIVACY, THE PRESUMPTION OF INNOCENCE, AND “CORRUPTION OF BLOOD” AS CONSTITUTIONAL METAPHORS IN THE DEBATE ON “FAMILIAL SEARCHING"

11/26/2012

Twenty-five years ago, DNA databases were a curiosity thought to be useful only for a few types of violent crimes. Today, they are a dazzling device for enforcing criminal laws from car theft to murder. Computer trawls of DNA databases for matches to DNA profiles from crime-scenes or from the bodies or clothing of victims have produced hundreds of thousands of “cold hits” to known offenders.

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By David H. Kaye, Distinguished Professor and Weiss Family Scholar, Dickinson School of Law; Graduate Program in Forensic Science, The Pennsylvania State University

RETRO IS BACK: PADILLA MEETS GIDEON, Part 2

10/22/2012

Today we post the second of two parts of an article by Daniel Sylvester, a third-year law student at DePaul University College of Law. The first part was posted on October 18.

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Taking Stock of the STOCK Act

10/19/2012

The long-standing federal insider trading laws do not expressly apply to Members of Congress and their staffs.  The recently passed STOCK Act is intended to close this apparent gap, by amending the insider trading laws to prohibit Members of Congress and their staffs from using insider information acquired in the exercise of their official duties for personal gain.  But will the STOCK Act actually serve its intended function?  The Speech or Debate Clause, a relatively obscure clause of the United States Constitution, may thwart attempts to enforce the STOCK Act against its intended targets on the Hill.  Instead, because the Act likely provides liability for “tippees” (persons that receive and trade based on material non-public information),  the STOCK Act’s impact may fall hardest on private parties who regularly receive information from Members or their staffs.

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By James Hamilton, Randall Levine, and Stephanie Schuster-Lezell

RETRO IS BACK: PADILLA MEETS GIDEON, Part 1

10/18/2012

It is hard today to turn on the television or read the news and not see a story discussing immigration, especially against the backdrop of the upcoming 2012 Presidential elections.  Most of the stories deal with illegal immigrants and how the states and the federal government are, or are not, dealing with that issue; however, left out of that discussion, is the fact that in the last ten years there have been over ten million new immigrants who have received lawful permanent resident (LPR) status in the United States.  These LPRs have become productive, tax-paying members of society, some of whom have taken an oath to defend the Constitution of the United States of America by serving honorably in its armed forces.

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By Daniel Sylvester, third-year law student at DePaul University College of Law

Cogitationes: Prof. John D. Bessler - Tinkering Around the Edges: The Supreme Court's Death Penalty Jurisprudence

4/16/2012

The ACLR is pleased to publish our first comprehensive article online.  Many thanks go to Professor John D. Bessler for writing the article, Tinkering Around the Edges: The Supreme Court's Death Penalty Jurisprudence.  The Essay examines America’s death penalty forty years after Furman, providing a critique of the Supreme Court’s existing Eighth Amendment case law.

Read the Introduction Here

Download the Full Article Here

Penetrating an Organization’s Internal Investigation: Does 18 U.S.C. § 1519 Create More Problems Than It Solves?

11/28/2011

Impeding an organization’s internal investigation into alleged wrongdoing can be a federal crime, even though no federal investigation has been instituted. Such conduct has been proscribed since 2002, when 18 U.S.C. § 1519 was enacted. Section 1519’s impact on internal investigations, a staple in the defense of organizations, is significant given how courts have interpreted § 1519. Corporate counsel, organizations and their employees must carefully navigate the conflicting currents posed, and issues raised by, the statute.

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Mark J. Biros, Partner, Proskauer Rose LLP; Adjunct Professor of Law at Georgetown University Law Center

Lower Courts Navigate the Supreme Court’s Decision in United States v. Jones

4/16/2012

As a fellow blogger noted last month, the Supreme Court’s decision in United States v. Jones leaves much to be desired by way of direction to lower courts. So, how have lower courts since reacted? 

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By Lauren Britsch, J.D. Candidate

Unqualified for Prosecution: Why Qualified Immunity Should Protect Employees of Child Protective Service Agencies from Criminal Liability

4/2/2012

Marchella Brett-Pierce’s mother Carlotta has gone to trial for murder. Earlier this month, the New York media watched as Marchella’s eight-year-old brother testified against Carlotta and accused her of malnourishing and abusing her children. Meanwhile, social workers Chereece Bell and Damon Adams have been arguing pre-trial motions while awaiting charges of criminally negligent homicide in the related case. But noticeably absent from the entire discussion of the Brett-Pierce media coverage is the fact that New York fails to extend any form of immunity from civil or criminal prosecution to social workers who fail to investigate—or satisfactorily investigate, as in the Brett-Pierce case—reports of child abuse.

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Neal Shechter, J.D. Candidate

Harmless Error--Where's the Harm in That?

3/21/2012

On Wednesday, March 21, the Supreme Court will hear oral argument in Vasquez v. United States.  This case has not received much in the way of media coverage, and is understandably dwarfed by the other high-profile cases of the term like the Arizona immigration case or the challenges to the Affordable Care Act.  Even so, as an ongoing matter of practical importance for appellate litigators, Vasquez is a very important case with broad implications.

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Reid Allison, J.D. Candidate

Treatment for Transgender Inmates: Adapting the 8th Amendment to 21st Century Concerns

3/18/2012

The Eighth Amendment proscribes the infliction of cruel or unusual punishment. Although the clause was originally adopted due to concerns over torture, Eighth Amendment jurisprudence has grown to encompass the minimum constitutional standards that prisoners are entitled to during their confinement. One of these standards is the provision of medical care; withholding care for serious medical needs constitutes an “unnecessary and wanton infliction of pain.” But just what qualifies as a serious medical need or necessary medical care is subject to debate and a constantly evolving body of medical knowledge. Currently pending before the Supreme Court and scheduled for conference on March 16, 2012, is a petition involving an issue at the frontier of that debate—whether the Eighth Amendment requires the provision of hormone replacement therapy to transgender prisoners.       

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Eric Trachtman, J.D. Candidate

Prostitution Free Zones or Playgrounds for Profiling: The Problems With Section 104 of DC’s Omnibus Public Safety Emergency Amendment Act of 2006

3/18/2012

Under current District of Columbia law, police officers have the authority to establish areas of the city as “prostitution-free zones.”  The Chief of Police may declare such zones on “any . . . verifiable information . . . from which the Chief of Police ascertains [that] the public health or safety is endangered by prostitution or prostitution-related offenses” in the area.  Each zone designation is currently limited to a duration of no more than twenty days at a time.  Once such a designation is made, officers may approach any group of two or more people—whom the officers have articulable suspicion to believe are engaging in prostitution or prostitution-related offenses—and demand that they disperse.  If the group does not disperse within a reasonable time, or if it disperses and congregates again in another area of the prostitution-free zone, the officers can arrest members of the group.  Once arrested, a person can be convicted of violating the statute and fined up to 300 dollars and/or imprisoned up to 180 days.       

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Reid Allison, J.D. Candidate

A Horrific Violation of Trust: Prosecuting Doctors for Patients’ Prescription Overdoses

2/21/2012

On Saturday, February 18, 2012, a crowd gathered at the New Hope Baptist Church in Newark, New Jersey, to mourn the untimely loss of music legend Whitney Houston. Although the results of a toxicology test are still weeks away, preliminary reports cite a deadly mixture of alcohol and prescription drugs as the cause of Houston’s death. Multiple prescription drugs were found in the Beverly Hills hotel room where Houston died, including Xanax. It is no secret that the singer had struggled with substance abuse problems for years, but to what extent should her doctor be held accountable for her death? The physicians of the rich and famous regularly face the temptation to ignore ethical obligations and acquiesce to the unreasonable demands of their patients. Although most medical negligence cases are handled in civil court, the recent conviction of Michael Jackson’s doctor for involuntary manslaughter reflects the growing belief that a stronger deterrent is needed, and in some cases, doctors should be held criminally liable when their patients abuse and overdose on prescription drugs.

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Erica Trachtman, J.D. Candidate

Tricking Terrorists and Toeing the Entrapment Line: Law Enforcement’s Fight Against Terrorism

2/21/2012

Foiling terrorism plots obviously is extremely important to protecting the security of the United States. The work of informants has prevented many attacks and led to prosecutions. The most recent attempted terrorist attack highlights an extremely important aspect of law enforcement’s efforts to intercept attacks before they cause damage—the undercover operation and its close relationship with entrapment.

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Lauren Britsch, J.D. Candidate

Confronting the Dead: The Testimonial Status of Autopsies After Melendez-Dias and Bullcoming

2/21/2012

During the last decade, the Supreme Court actively has been shaping a particular aspect of constitutional criminal law: the Confrontation Clause. Since 2004, when the Court overruled the Ohio v. Roberts analysis in Crawford v. Washington, the Court has decided four distinct cases within the same line. Crawford introduced the determinative question of whether the evidence that the government seeks to introduce is testimonial. If a court decides that evidence is testimonial, the defendant must be given an opportunity to cross-examine the person who created the evidence (or made the statement), or the evidence may not be admitted. This testimonial status inquiry replaced the Roberts analysis, which determined Confrontation Clause admissibility on the grounds of “indicia of reliability.” 

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Reid Allison, J.D. Candidate

 

Sex Trafficking and the Internet: Can Advertising Websites Be Liable?

2/11/2012

The United States is a “source, transit, and destination country for men, women, and children subjected to forced labor, debt bondage, document servitude, and sex trafficking.”[1] A dearth of statistics makes it difficult to know the scope and exact nature of the problem of human trafficking in the United States. Estimates and anecdotal evidence demonstrate, however, that the problem is widespread and affects not only foreigners but also U.S. citizens, particularly minors. The National Center for Missing and Exploited Children estimates that at least 100,000 American children are trafficked into the commercial sex industry within the United States annually.  

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Lauren Britsch, J.D. Candidate

‘RE-CALCULATING!’: The Court's Convoluted Opinion in United States v. Jones Gives Little Guidance

2/6/2012

On January 23rd, 2012, the Supreme Court issued its long-awaited opinion in United States v. Jones unanimously holding that prolonged, warrantless surveillance of individuals using physically-invasive GPS devices attached to their vehicles is an unreasonable search in violation of the Fourth Amendment.

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Neal Shetcher, J.D. Candidate

Reliability Still Comes Second: The Supreme Court’s Narrowing of the Two-Part Test for Admissibility of Eyewitness Identification

2/2/2012

Most of us probably have seen police use lineups to identify suspects in movies or on television. Pop culture teaches us that eyewitness identifications play a substantial role in police procedure, not to mention the criminal justice system. Although state law generally governs admission of such evidence in state trials, due process places some limits on the admissibility of eyewitness identifications. Due process comes into question when the police apply what the Supreme Court have called “suggestive” procedures that essentially indicate to the witness whom to identify as the suspect. 

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By Lauren Britsch, J.D. Candidate

Corruption, Crime, and the D.C. Council

1/28/2012

On Friday, January 6, after several months of denying any misconduct, D.C. Councilmember Harry Thomas, Jr. pled guilty to embezzling federal funds and filing false tax returns—two felonies that, in addition to curbing Thomas’ political aspirations, will likely send him to prison for a number of years. Rather than doing his job and representing the interests of Ward 5, in which one in five residents is a child, Thomas pocketed funds specifically earmarked for youth recreation programs. Somewhat surprisingly, Thomas is the first D.C. councilmember to vacate his seat under a legal cloud, although the D.C. government is certainly no stranger to corruption and scandal. In fact, the FBI and IRS are continuing investigations into the shady conduct of other key District leaders, including Mayor Vincent Gray and Council Chairman Kwame Brown. This post examines the legal and ethical woes surrounding Thomas and other top players at the helm of the D.C. government and analyzes the impact of this less-than-effective leadership on the seemingly eternal quest for D.C. statehood.

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Erica Trachtman, J.D. Candidate

Book Review: Cruel & Unusual by John D. Bessler

1/18/2012

John D. Bessler’s fourth book, Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment, presents a careful, well-researched study of the death penalty in American history. The book demonstrates that the Founding Fathers held conflicting and evolving views about the death penalty, and did not necessarily support its use. Bessler, admirably, does not take a detached approach in Cruel & Unusual. As he explains, the book “thoroughly examines the Eighth Amendment’s history, meaning, and purpose, arguing that the Cruel and Unusual Punishments Clause should be read to bar executions” and that its meaning is not tied to “eighteenth-century mores.”[1] Bessler’s subjective approach augments the effect of his compelling historical indictment of capital punishment, particularly as he seeks to change readers’ understanding of punishment and penal reform in the late eighteenth and early nineteenth centuries.

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George C. Chipev, J.D. Candidate

Marchella Brett-Pierce: Expanding Criminal Negligence Liability for Third-Party Actions (Part II)

12/5/2011

On November 16, 2011, Judge Patricia DiMango of the Kings County State Supreme Court issued a 22-page opinion denying the defendants’ motion to dismiss and ordering social workers Chereece Bell and Damon Adams to stand trial in the Marchella Brett-Pierce case. Although the decision on the motion to dismiss is not yet available, it is already attracting attention as the case heads toward a very public trial. Judge DiMango, who was recently profiled by the New York Timesheld that evidence of the social workers’ failure to notice the young girl’s malnourishment and the alleged failure to appropriately monitor the family could be sufficient to allow the criminally negligent homicide charges to go to the jury. Her opinion sets a precedent which some feel could indict the entire social work profession, and an examination of the history of criminal negligence law in New York shows how much this opinion could reshape the definition of criminally negligent conduct.

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Neal Shechter, J.D. Candidate

“Predictive Policing” and the Fourth Amendment

11/28/2011

The future of policing just arrived on a computer screen in downtown Los Angeles. As reported by National Public Radio, this month the Los Angeles Police Department’s (LAPD) Real Time Analysis and Critical Response Division has embraced a new computer program offers the holy grail of smart policing: the ability to predict where crime will happen and direct police resources to that location.

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Andrew Guthrie Ferguson, Assistant Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia

Williams v. Illinois: The Confrontation Clause and Forensic Evidence

11/28/2011

The Supreme Court will soon here argument in Williams v. Illinois, the next in a recent line of cases considering the Confrontation Clause. The Court over the past few years has overturned a number of convictions for violations of the Confrontation Clause of the Sixth Amendment, which guarantees the right of a criminal defendant to confront the witnesses against him or her. However, it is not clear whether this trend of applying the Clause in favor of defendants will continue with Williams.

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Lauren Britsch, J.D. Candidate

Permissible Regulation or Unprecedented Expansion: Forecasting the Supreme Court’s Take on the Stolen Valor Act

11/20/2011

This is my second post on United States v. Alvarez, the case involving one man’s phony claims of military heroism recently granted certiorari by the Supreme Court. Specifically at issue in the case is the constitutionality of the Stolen Valor Act, a federal law that criminalizes lying about the receipt of military awards, and it raises serious concerns about the ability of lawmakers to curtail First Amendment rights. In this post, I analyze the probable fate of the Stolen Valor Act in light of two recent Supreme Court decisions interpreting traditional First Amendment jurisprudence. Emphasized in both opinions, and what I expect will be prevalent in the Alvarezdecision, is the Court’s abhorrence of content-based restrictions on speech. As Justice Marshall once explained, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[1]  Consequently, unless it is part of a well-defined, long-standing tradition of proscription, the Court is reluctant to recognize a novel restriction on content. In both of the Court’s recent decisions, it deemed allowing new restrictions, like the Stolen Valor Act’s prohibition of military award-related lies, directly at odds with the enduring nature of the First Amendment’s protection. InUnited States v. Stevens, the Court stated:“The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”[2]

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Erica Trachtman, J.D. Candidate

Smith v. Cain: An Opportunity to Effectuate the Promise of Brady

11/20/2011

On November 8, the Supreme Court heard oral argument in Smith v. Cain.  Smith is not interesting because of controversy surrounding its facts or because the Justices appear reasonably split on the questions of settled law.  Instead, this case is important because it deals with an absolutely essential predicate to a fair trial: disclosure by the prosecution of all potentially exculpatory evidence as required by the decades-old case ofBrady v. Maryland

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Reid Allison, J.D. Candidate

The Stolen Valor Act: Making a Criminal Out of a Liar

11/4/2011

Revered as our nation’s highest military decoration, the Congressional Medal of Honor has been the symbol of American heroism and bravery since the Civil War Era. Its distinguished recipients personify courage and selflessness, having risked (and often lost) life and limb to protect the United States and defend democracy. In return for their exemplary acts of valor, Medal of Honor recipients receive not only the award itself, but also a lifetime of accompanying privileges and accolades. So how then should Medal imposters be treated? Those deceitful individuals who falsely claim to be Medal of Honor recipients and exploit the award for their own personal gain may be morally culpable, but should they be criminally liable?  

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Erica Trachtman, J.D. Candidate

How Amici May (And Should) Affect The Supreme Court’s Decision In U.S. v. Jones

11/1/2011

On November 8th, the Supreme Court will hear oral argument in United States v. Jones, 10-1259, a case of great interest to 1L Criminal Procedure students and the general public alike because it will determine whether or not law enforcement officers must obtain a search warrant in order to attach a GPS device to a suspect’s vehicle and track the suspect’s movement for an extended period. The case has been written about by many commentators (including the ACLR’s Kirk Goza and Brad Leneis), and the issue of GPS searches has been the focus of extensive academic debate, including numerous student notes.

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Reid Allison, J.D. Candidate

Tempted by the Fruit of Another: Third Party Standing and the Exclusionary Rule

10/7/2011

The exclusionary rule prevents evidence that was obtained through unlawful search and seizure from being admitted in trial. The “fruit of the poisonous tree” doctrine holds that any further evidence found as a result of information uncovered through an unlawful search is also inadmissible at trial. The logic is that if the source of the evidence, the “tree,” is tainted, so too are its gains, or “fruit.” The doctrine was created to safeguard an individual’s privacy interest under the Fourth Amendment and deter police from using unconstitutional means to gather evidence.

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Kelly Walters, J.D. Candidate

Expert-Networks: Crossing the Insider Trading Line

10/3/2011

You’re a Fortune 100 sales executive. You earn a $120,000 salary, which provides for a comfortable life in the Midwest. However, after paying your mortgage, car payment, and your children’s college bills, your monthly bank statements are hardly flush. On top of that, your 401(k) was decimated in the downturn, erasing decades of savings. You are dissatisfied with your career as a middle manager. 

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Andrew H. Yong, J.D. Candidate

Matthew Taylor, the FBI Art Crime Team, and the Law of Stolen Chattels

10/3/2011

Approximately two weeks ago, Matthew Taylor of Vero Beach, FL was arrested by the Federal Bureau of Investigation (FBI) after being indicted on seven felony charges related to art theft and fraud. Taylor targeted an art collector in Los Angeles, and the alleged crime makes him the interest of a new and growing law enforcement mechanism: the FBI’s Art Crime Team.

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Amy Zelcer, J.D. Candidate

ACLU Report Details Prisoner Abuse at LA County Jails

10/3/2011

On Wednesday, September 28, the ACLU released its annual report on the Los Angeles County Jail System. The report detailed dozens of unprovoked beatings and other violations of prisoners’ rights by guards, and contained numerous eyewitness accounts of prisoner abuse. Complaints to superior officers about deputy misconduct were regularly swept under the rug. In addition to releasing the report, the ACLU is calling for a federal investigation and for LA County Sheriff Lee Baca to resign.

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Russell Squire, J.D. Candidate

FCPA Prosecution: Where Enforcement Borders on Extortion

10/2/2011

On September 15th, Tokyo's Bridgestone Corporation pled guilty to conspiracy to bribe government officials, a violation of the Foreign Corrupt Practices Act (FCPA for short).  The Department of Justice had charged Bridgestone with authorizing its local sales agents to bribe employees of state-owned entities in Latin America.  As a part of its plea bargain, which also covered an antitrust violation under the Sherman Act, Bridgestone agreed to pay a fine of $28 million, a bargain by FCPA standards.  Of course that figure doesn't begin to capture the considerable legal costs that attend FCPA cases.  That's because FCPA prosecutions typically require companies to perform an extensive internal investigation in addition to the normal fees associated with a large-scale litigation against the Department of Justice. Bridgestone's case is hardly out of the ordinary. A quick web search will turn up scores of similar settlements, on account of a surge in FCPA prosecutions over the past decade.  In fact, prosecutions have become so commonplace that several years ago a major Hollywood filmfollowed the cat and mouse game between the Department of Justice and a law firm defending and investigating an FCPA charge.  Needless to say, the Foreign Corrupt Practices Act is not the sort of statute that usually makes it to the silver screen.  So why is FCPA prosecution suddenly so fashionable?  As any skilled investigator knows, it's wise to follow the money.

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Ross Anderson, J.D. Candidate

United States v. Jones: GPS Tracking and the Future of Privacy

10/2/2011

This November the Supreme Court will hear oral arguments in a case that will have powerful implications for the future of privacy and police surveillance. That case, United States v. Jones(No. 10-1259), involves a challenge to a police practice that has split state and circuit courts for nearly a decade. The practice in question? Police use of GPS trackers to monitor suspects’ vehicles without a warrant. The Court’s decision will obviously impact the police’s use of GPS devices, but it could also shed light on a major ambiguity in Fourth Amendment law. 

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Kirk Goza, J.D. Candidate

Revising Criminal Background Check Laws

10/2/2011

The U.S. Equal Employment Opportunity Commission (EEOC) is considering revising its guidelines for criminal background checks. On July 26th 2011 in Washington, DC, 250-300 people gathered to discuss the use of arrest and conviction records in employment screening and the effects that any change in policy would have on the business world. The recent action is based at least in part on a 2007 case heard by the U.S. Court of Appeals for the Third Circuit in which the court complained that the EEOC’s guidelines did not give sufficient instruction on what an employer should do with information about past criminal arrests or convictions. Specifically, the guidelines do not say whether an employer can create bright-line policies as to whether some offenses are serious enough to justify a life-time hiring ban. 

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Lauren Pomeroy, J.D. Candidate

New York City Police Officers Face Sharp New Order on Marijuana Drug Enforcement Arrests

10/2/2011

In the wake of increasing public pressure, NYPD Commissioner Ray Kelly issued an Order last week commanding NYPD officers to follow existing laws about marijuana possession and what police can and cannot do with regard to searches and stop-and-frisk procedures. The Marijuana Reform Act—the current New York State law which was passed in 1977—makes possession of less than seven-eighths of an ounce of marijuana a violation instead of a criminal offense. Editorial, Trouble With Marijuana Arrests: Questionable police practices on minor possession charges merit deeper scrutiny, N.Y. Times, Sept. 27, 2011, at A26. A violation is subject to only a $100 fine for the first offense, whereas possession of any amount in public view is a misdemeanor punishable by up to three months in jail and a $500 fine. Commissioner Kelly’s Order does not actually change the law itself but rather instructs officers to follow the law, of which they apparently have not been doing the most satisfactory job in the past decade and a half.  But will an Order standing on its own be enough to end such a pervasive problem?

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Josh Savitz, J.D. Candidate

The Jared L. Loughner Saga

10/1/2011

On Wednesday September 28, 2011, Jared L. Loughner, the man charged in the Arizona shooting rampage, faced another competency hearing in Arizona. Loughner is charged with the January 8 shooting rampage in Tucson that left six people, including a federal judge and a child, dead and wounded thirteen others, including congresswoman Gabrielle Giffords. Loughner has pleaded not guilty, but if he is found competent to stand trial and subsequently convicted, he could receive the death penalty. Below is a brief overview of the history of Loughner’s case:

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Carrie Tenant, J.D. Candidate

The Whitey Bulger Case: Snitching and its Justifications

10/1/2011

The arrest on June 22, 2011 of fugitive alleged Boston Crime Boss James “Whitey” Bulger after 16 years on the run was an empty triumph for law enforcement. Bulger, 81, had successfully lived out much of his golden years in comfort (more than $800,000 in cash was found in the Santa Monica home he shared with his longtime companion) and security (the same search turned up more than 20 loaded guns, as well as other weapons). Moreover, during the time that Bulger remained free, the FBI saw a former agent convicted of second-degree murder after a jury found he leaked information to Bulger and Stephen Flemmi, both of whom were his informants, resulting in the death of another associate, John Callahan. The revelations damaged the credibility of the FBI, leading to Congressional hearings and a major revision to the Bureau’s informant-handling standards.

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Nick Jarcho, J.D. Candidate

Duane Buck, Texas, and the Death Penalty

10/1/2011

On September 7th, 2011 Texas Governor Rick Perry was met by an outburst of applause from the audience at the Republican Party Presidential Debate when he expressed confidence in his state’s execution record. Governor Perry extolled the fairness of the Texas criminal justice system when asked about his personal confidence in the guilt of the executed defendants. However, death row inmate Duane Buck and the United State’s Supreme Court might disagree with Governor Perry’s assurance of the fairness of Texas’ criminal courts.

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Bobby v. Dixon: Miranda, Again

10/1/2011

You know the setting. You’ve seen it before. From television dramas to box office mega-hits, silver screened scenes of criminal interrogations by police officers have become a favored vignette for pop culture’s modern interpretation of the recurring conflict between perpetrator and protector, between individual rights and societal repercussions. Yet far removed from Hollywood’s broad creative license and collective imagination lie the requirements of the Fifth Amendment, Miranda’s prohibition against self-incrimination, law enforcement’s dogged quest for the most persuasive interrogation techniques, and an Ohio man accused of murder facing the death penalty.

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Colum Weiden, J.D. Candidate 2013

Brady Tries Again in New Orleans: SCOTUS to Hear Second Case in Two Years Involving New Orleans DA’s Office

9/30/2011

This November, the Supreme Court will hear Smith v. Cain, the second Brady case to come out of the New Orleans’ District Attorney’s case in two years. The Court agreed to hear the present case on petition from Juan Smith, who was convicted of a quintuple murder stemming from a 1995 shooting on North Roman Street in New Orleans, Louisiana. The court agreed to hear the case despite deciding Connick v. Thompson, 131 S.Ct. 1350 (2011), regarding Brady issues out of the exact same DA’s office, only last term.

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Jessica Pettit, J.D. Candidate

 

The Troy Davis Case & Controversy

9/30/2011

On Wednesday September 21, 2011 at 11:08 p.m. EST, Troy Anthony Davis was executed by lethal injection in Jackson, Georgia against the vehement protests of individuals around the world moved by Davis’s 22-year-long battle to prove his innocence. Davis died four hours after his originally scheduled time, in which time the Supreme Court reviewed but ultimately denied a final petition by Davis’ lawyers to stay his execution. Contrary to public opinion casting Davis’ case as an example of the racially discriminatory and arbitrary application of the death penalty in the United States, Davis was actually afforded the full range of possible review by state and federal courts short of review by the Supreme Court, in addition to having had his case reviewed by the Georgia State Board of Parson and Paroles.

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Ariel Xue, J.D. Candidate

Technology and the Fourth Amendment: A Look at Recent and Upcoming Cases

9/30/2011

It is no secret that technological development and innovation has been accelerating in recent decades at a dizzying pace. As a result, courts increasingly have applied the Fourth Amendment to circumstances involving new technologies that were barely anticipated ten years ago and completely unknown in 1791. This post briefly summarizes some upcoming cases and recent decisions involving the Fourth Amendment and technological change. These cases force the courts to strike a difficult balance between promoting the public good of efficient and effective law enforcement and protecting individuals from unreasonable infringements on their privacy. 

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Ben Thompson, J.D. Candidate

Last Meals Before Death

9/30/2011

The Texas Department of Criminal Justice recently decided to terminate its long-held practice of accommodating last meal requests of those condemned to die. For their last meals, death-row inmates in the Texas criminal justice system are now limited to those same options as other prisoners. The catalyst for this policy change was Texas’ accommodating Lawrence Brewer’s extravagant last meal request. Days before his execution, Brewer requested a meal that included two chicken-fried steaks with gravy and sliced onions, a triple-patty bacon cheeseburger, a cheese omelet with ground beef, tomatoes, onions, bell peppers and jalapeños, a bowl of fried okra with ketchup; one pound of barbecued meat, one half a loaf of white bread, three fajitas, a pizza, one pint of Ice Cream, a slab of peanut-butter fudge with crushed peanuts, and three root beers. Facing the impending confirmation of his mortality, Brewer left his requested fare untouched.

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Brian Shack, J.D. Candidate

Risking Reciprocity: The Supreme Court’s Continued Disregard of American Obligations Under the Vienna Convention

9/29/2011

On July 7, 2011, despite pleas from top officials of the Obama administration, Texas executed 38-year-old Mexican national Humberto Leal Garcia. Given that Texas is the nation’s most active death penalty state, Leal’s execution for the horrific rape and murder of a San Antonio teen in 1994 may not seem unusual or even undeserving. However, Leal’s execution in fact presents broad implications for U.S. foreign policy interests and jeopardizes the safety of many Americans abroad. The omission was slight but significant, and apparently not all that uncommon: following his arrest, Leal was never informed of his right to seek assistance from the Mexican consulate, a right guaranteed to him by Article 36 of the Vienna Convention. Although the conservative Justices have expressed doubt that Leal’s execution will be the catalyst for grave international consequences, his death continues to undermine the Vienna Convention’s already eroded purpose, to “contribute to the development of friendly relations among nations.”

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Erica Trachtman, J.D. Candidate

Ponzi Hold ‘em: Department of Justice Accuses Full Tilt Poker of Defrauding Players

9/29/2011

Full Tilt Poker was once a prominent poker website that allowed players to compete online for money. The site has been the target of federal prosecutors since April 2011, when the United States filed a civil suit against the company and its officers in the Southern District of New York. On September 19, 2011, however, prosecutors made a startling announcement when they accused Full Tilt Poker of operating as a “massive Ponzi scheme against its own players.”

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Jared Stark, J.D. Candidate

Should the Supreme Court Adopt New Jersey’s Framework for Eyewitness Identifications?

9/29/2011

Study after study shows that eyewitness identifications are unreliable and result in hundreds of wrongful convictions. Yet the Supreme Court standard for admitting eyewitness testimony in court is over thirty years old, and it fails to take into account studies conducted over the past decade. Hopefully that will change this term when the Supreme Court hears Perry v. New Hampshire, where the defendant challenged whether eyewitness identification at the scene of the crime may be admitted at trial. The Supreme Court should abandon its current two-prong approach focused on police misconduct and adopt at least some of the prescriptions outlined recently by the New Jersey Supreme Court in a totality of the circumstances analysis.

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Brittany Heyd, J.D. Candidate

J.D.B v. North Carolina: A Step Towards Protecting Juvenile Rights

9/28/2011

Recently, the Supreme Court addressed the issue of whether a thirteen-year old boy was held in custody, when he was interrogated in a school conference room by police officers and school administrators.  Holding that age is one of the factors that determines whether a child is in custody, J.D.B. v. North Carolina issued a landmarkMiranda decision to protect juvenile rights.  Moving forward, the Court needs to further recognize the uniquely coercive elements within the school environment and offer procedural protections beyond Miranda for students who are interrogated within the school.

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Nicole Mortorano, J.D. Candidate

The Rubashkin Sentencing Debate

9/28/2011

Last Friday, September 16, 2011, marked the latest chapter in the Sholom Rubashkin sentencing debate. Sholom Rubashkin is a former executive officer of Agriprocessors, a kosher meat producer in Iowa. In November 2009, he was convicted of eight six counts of bank, wire, and mail fraud as well as making false statements to a bank and money laundering.  

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Rebecca Gross, J.D. Candidate

Second Circuit Becomes Latest to Require Proximate Cause Showing When Seeking Mandatory Restitution Under 18 U.S.C. § 2259

9/28/2011

The Second Circuit became the latest circuit to find a proximate cause requirement in 18 U.S.C. § 2259, the statute that orders mandatory restitution from those who sexually exploit or abuse children. Only one circuit, the Fifth, of the six to consider the issue has found that § 2259 does not have a proximate cause requirement. Whether proximate cause is required under § 2259 only recently became an issue with the novel use of the statute as a means to seek restitution from “end-users” of child pornography, that is, those convicted for possession and not production. Since the circuits have begun reviewing the issue in the last few years, the debate has gained widespread attention. The debate becomes more and more relevant as the internet, and our inability to control it, grows. Though the majority of circuits require that proximate cause is shown, some people still argue against the requirement and favor a broad reading of the statute that would make it easy for those portrayed in images to collect from the end-user. Some type of monetary penalty for possessing child pornography is probably a good idea. However, the view that merely posits that there should be no proximate cause requirement, and the rhetoric used to support it, is oversimplified and has significant implications for how we think about internet crime and child sexual abuse. When considering the debate, multiple factors should be taken into account, but more attention should be given to two often overlooked matters: the inextricable nature of the contact offense that created the child pornography and to the outdated nature of the case law supporting some of the argument for restitution from end-users.

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Barrie H. Newberger, J.D. Candidate

United States v. Jones and the Implications of Technology-Enhanced Tracking Under the Fourth Amendment

9/26/2011

United States v. Jones, No. 10-1259 (appeal docketed Apr. 15, 2011) promises to be one of the most important cases on the Supreme Court docket this term. In Jones, the Court will examine the Fourth Amendment implications of technology-enhanced tracking by law enforcement for the first time since United States v. Karo, 468 U.S. 705 (1984)—a case decided shortly after the release of the first Macintosh PC. Developments in tracking technology over the past 27 years have kept pace with developments in personal computers: while Karoinvolved the use of a primitive radio transmitter that only provided its location relative to a matching receiver, the GPS device in Jones pinpoints its absolute location to within ten feet by communicating with orbiting satellites. See Department of Defense, Global Positioning Standard Positioning Service Performance Standard, v (4th ed. 2008) (http://www.pnt.gov/public/docs/2008/spsps2008.pdf). Monitoring the movements of a suspect’s car via GPS has become a commonplace law enforcement technique, and courts are granting increasing leeway to attach a GPS unit to a car parked in a suspect’s driveway, even when the car is parked within the curtilage of the home.  See United States v. Pineda-Moreno, 591 F.3d 1212, 1214–15 (9th Cir. 2010),reh’g en banc denied, 617 F.3d 1120 (9th Cir. 2010).

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Brad Leneis, J.D. Candidate

Jeffrey Skilling's Third Act

9/26/2011

For audiences in the market for "razzle-dazzle choreography," tickets are already on sale for “Enron,” the latest musical debut from Burning Coal Theatre Company of Raleigh, North Carolina. But off-stage, the lights have yet to go down on the tragic hero of the real-life scandal upon which that opus is based. Former Enron CEO Jeffery Skilling has filed a petition for certiorari with the United States Supreme Court, praying that the tribunal review the Fifth Circuit Court of Appeals’ April 6, 2011 denial of his appeal. If the Court decides to grant cert, it will be the second time the erstwhile "smartest guy in the room" appears before it.

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Matthew Nicholson, J.D. Candidate

The Republican Field: Congresswoman Michele Bachmann’s Position on Issues Related to Criminal Law

9/26/2011

MSNBC and Politico co-sponsored a debate of the Republican presidential candidates at the Reagan Library in Simi Valley, California, on September 7.  As a sign of times, the majority of the conversation at the debate dealt with the dearth of American jobs and President Obama’s Affordable Care Act.  The conservative candidates received much applause when they directed their ire at President Obama, but arguably the biggest applause line of the night did not come from any of the eight members of the Republican field standing on the stage.  Indeed, the rousing applause rang up from the crowd in the Reagan Library’s Air Force One Pavilion when moderator Brian Williams directed a question to Texas Governor Rick Perry that began, “Governor Perry, question about Texas.  Your state has executed 234 death row inmates, more than any other state of modern times…”  Mr. Williams was not even able to finish his question before the crowd broke out into the first of two rounds of applause, giving viewers a stark reminder that even in a year when jobs plans and healthcare reform promises take center stage there remains a place for issues of criminal law in the minds of many voters.

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Christopher Indelicato, J.D. Candidate

California's Struggle to Reduce Its Prison Population

9/25/2011

Last May, the Supreme Court ordered California to reduce overcrowding in its prison system “without further delay.” The Court pointed out that the prisons were operating at 200% of design capacity, and had been doing so for eleven years. “After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population.” For a state already facing well-publicized budget problems, the required reduction of potentially 46,000 prisoners must have seemed overwhelming. However, in the four months that have passed since the Supreme Court’s order, California has devised at least three possible methods it can use in an effort to come into compliance.

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Jeff Nye, J.D. Candidate

Lafler v. Cooper: Attorney Mistakes, Plea Bargaining, and Remedies

9/25/2011

One of the more interesting issues the Supreme Court will address this term arises in Lafler v. Cooper. There, the question is what happens when an attorney advises his criminal client to reject a favorable plea based on an incorrect understanding of the law and his client is then sentenced to a harsher sentence after a fair trial? The Sixth Amendment test for ineffective counsel is obviously of critical importance here, but what caught my eye was the second question that the Supreme Court directed the parties to brief after granting certiorari. The Court specifically asked the parties to determine what remedy, if any, should be provided for the counsel’s performance during the plea bargaining stage if the defendant was later convicted based on constitutionally adequate procedures.

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Genny Ngai, J.D. Candidate

SAP Pays $20 Million Fine to Settle Criminal Charges in an Unusual Copyright Case

9/25/2011

German software company SAP AG, the global market leader in business software, has agreed to pay over $20 million in fines to settle a criminal case brought by the U.S. Department of Justice against its defunct Texas subsidiary, TomorrowNow. On September 14, SAP executive Mark White pled guilty on behalf of TomorrowNow to charges of criminal copyright infringement against SAP’s chief competitor, Oracle.

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Christopher J. Kim, J.D. Candidate

Maryland's Highest Court Affirms Constitutionality of Death Penalty Sentencing Standard

9/24/2011

On September 20th, the Maryland Court of Appeals denied a claim by death row inmate Jody Lee Miles for a new sentencing hearing on the grounds that his jury should have been instructed that the death sentence cannot be imposed unless every juror is persuaded beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances.  In the original trial, a jury in the circuit court for Queen Anne’s County convicted Miles of first degree felony murder and other offenses including robbery with a deadly weapon and use of a handgun with a crime of violence; the jury also imposed the death sentence.  The Maryland Court of appeals affirmed Miles’ conviction and sentence once in 2001 and the Supreme Court denied his petition for certiorari in 2002. 

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Michael A. Goodwin, J.D. Candidate

9/11 at 10: Inside the Terrorist Trial Report Card

9/24/2011

The 10th anniversary of the September 11th attacks passed a few weeks ago with solemn memorials, tributes, and name-readings. At Ground Zero, President Obama and President Bush, the two men whose presidencies have been shaped by the aftermath of the attacks, gathered to commemorate the occasion and dedicate the National 9/11 Memorial.[1] But while the attacks have affected our foreign policy and national psyche, they have also had a huge impact on our courts, which must now wrangle with classified information and expanded investigative tools, high-profile cases on the constitutional rights of detainees, and legal questions surrounding the execution of the “War on Terror.”

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Daniel Michelson-Horowitz, J.D. Candidate

Brooklyn Case May Set Precedent for Criminal Liability for Social Workers

9/24/2011

For some, the future of the social work profession is being decided in an unassuming Brooklyn trial court in October, as New York prosecutors sift through a particularly brutal case of child abuse that has received national headlines, and ask the court to assign criminal liability to all those whom prosecutors claim were in a position to prevent the abuse.

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Neal Shechter, J.D. Candidate

Too Much Doubt: The Case of Troy Davis

9/22/2011

A decades-old case ultimately has ended with the execution of Troy Davis, an outcome that has rocked many people’s sense of fundamental justice.  Davis, a 42-year-old African-American man, was convicted in 1991 of murdering Mark MacPhail, a local police officer, and was given the death penalty.  After numerous appeals and three last-minute stays of execution, Davis’s time unfortunately ran out.  A decision by the Georgia Board of Pardons and Parole to deny clemency early Tuesday morning sparked a wave of international outrage and disappointment, given the evidence that came to light in recent years tending to support Davis’s innocence.  At the original trial, the prosecution’s case rested solely on witness testimony, but at the time of the hearing on Monday, seven out of the nine witnesses for the prosecution had recanted or contradicted their testimony, many coming forward and admitting  they were coerced by strong-arm police tactics. Nine people signed sworn affidavits implicating another man as the murderer, Sylvester Coles.  Coles is one of only two witnesses who did not change their stories, as well as the man who originally reported Davis to the police. In a case where no murder weapon was found and no physical evidence ever tied Davis to the crime, was a death sentence really justified? 

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Susannah Ostlund, J.D. Candidate

The Supreme Court Is Too Late For Troy Davis

9/21/2011

On Wednesday, September 21, 2011, at 11:08PM, Troy Davis was executed by the State of Georgia for the murder of an off-duty police officer. At his trial, nine eyewitnesses testified to Davis’ guilt – seven have recanted or changed their testimony, which was unquestionably influenced by police suggestion. While the case has drawn public attention to the failures of the death penalty system in the United States, it is also notable for highlighting the weaknesses, perhaps even unconstitutional failings, of eyewitness identifications. The execution went forward after the Supreme Court refused to grant a stay following four hours of deliberation, an unusually long time. The Supreme Court has observed that “almost nothing is more convincing” to a jury than an eyewitness’ testimony. However, the Court will not consider the subject until November 2, when it hears argument in Perry v. New Hampshire. Unfortunately, that is too late for Troy Davis.

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Hanna Lundqvist, J.D. Candidate

Preserving Prosecutorial Discretion with the Death Penalty

9/20/2011

InUnited States v. Sierra-Rodriguez, six foreign nationals face charges including conspiracy to travel in interstate commerce to commit murder. That charge renders them eligible for the death penalty. Earlier this year, four of the defendants moved to enjoin the government from seeking the death penalty. Although the district court recently dismissed the motion as moot, the proceeding raises several intriguing and unusual questions.

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James Barta, J.D. Candidate

Conviction Outside the Courtroom: Refusal of Jury Sequestration in the Murray Trial

9/20/2011

Last week, jury selection began in the trial of Dr. Conrad Murray, a man who has become a media sensation, if not a household name, since June 2009. Unfortunately for Murray, the cause of his renown is not a lauding of his medical skill, but rather the allegation that he killed Michael Jackson. Charged with involuntary manslaughter in the King of Pop’s death, Murray faces up to four years in prison for his supposed role in administering to Jackson an ultimately lethal dose of the surgical anesthetic propofol.

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Danielle Goldman, J.D. Candidate

Restitution: Part of a Criminal Sentence?

9/20/2011

A pending certiorari petition may actually pique the Supreme Court’s interest later this month. The Violence Against Women Act (VAWA), 18 U.S.C. § 2559, mandates that “in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.”  In Staples v. United States, the Eleventh Circuit held that when petitioner waived his right to appeal his sentence, he also waived his right to appeal the restitution amount awarded to the victim under VAWA. The holding turned on whether restitution was part of a criminal sentence.  The facts do not lend much sympathy to petitioner, but the circuit split on this issue may work in his favor—at least at this stage.

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Tiffiney Carney, J.D. Candidate

Upcoming Supreme Court Case to Decide on Privacy Rights of Inmates

9/20/2011

This fall, the Supreme Court will hear argument in a case centering on the practice of “strip searches” conducted when individuals are processed as inmates in a prison. Florence v. Board of Chosen Freeholders of the County of Burlington, coming up from the Third Circuit (most likely in recognition of a nascent circuit-split), addresses the Fourth Amendment issue of the constitutionality of routine strip searches of all new inmates, regardless of their alleged crimes or the suspicion that they are a threat.

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Brenner M. Fissell, J.D. Candidate

The John Edwards Trial: Just Temporarily Delayed or Time to Dismiss?

9/19/2011

Beleaguered former North Carolina Senator and presidential candidate John Edwards received welcome news regarding his impending criminal trial. On Thursday, September 8, 2011, Chief Judge James Beatty for the U.S. District Court of the Middle District of North Carolina delayed proceedings until January 2012. Edwards, who was indicted in June by the United States Department of Justice for conspiracy, issuing false statements, and violating campaign contribution laws, had earlier requested additional time to prepare his legal defense in light of the passing of his ex-wife, Elizabeth, which has made Edwards the sole caretaker of his two youngest children, ages 11 and 13. While the Edwards legal team prepares to defend against the prosecution’s assertion that campaign contributions were used to support Edward’s mistress during the 2008 presidential race--a claim his lawyers characterize as a “novel legal theory”--it may be even more prudent for federal prosecutors to use the delay to reconsider the merits of their seemingly weak case. 

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Adam Dulberg, J.D. Candidate 

Death by Mail: What We Talk About When We Talk About Maples v. Thomas

9/19/2011

On October 4th, 2011, the Supreme Court will hear a case that arises out of a mailroom mistake. As anyone who has ever used the United States Postal Service knows, mistakes occur all the time. Two things make this particular case stand out from the crowd of everyday mailroom snafus. First, the mailroom in question was that of Sullivan & Cromwell—a very highly regarded New York law firm. Second, and the reason that certiorari was granted in this case, the mistake cost a man on death row the ability to appeal his conviction—leaving him with no recourse to stave off eventual execution.

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Reid Allison, J.D. Candidate

Privacy on an Open, Unsecured Wireless Network?

9/19/2011

Technological advances have had numerous implications for the right to privacy under the Fourth Amendment. As society evolves to live more through the Internet and computers and other mobile devices, so does the realistic level of privacy and the degree of protection the law might provide. As put by the Ninth Circuit, “[t]he extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored.” One aspect of these privacy concerns manifests itself through data that an internet user transmits or shares through wireless internet of Wi-Fi connections. If, without a warrant, a law enforcement officer discovers evidence of a crime by using a computer to connect to the internet through the same wireless network of a defendant, has the defendant’s Fourth Amendment right to be free from unreasonable search and seizures been violated?

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Lauren Britsch, J.D. Candidate

Ending an Era of Swiss Banking Secrecy: The Facts Behind FATCA

9/18/2011

Since the inception of the income tax system in 1913, the government has relied on taxpayer honesty in reporting their income and assets. Unfortunately, the U.S. Government’s “trust the taxpayer” policy and Switzerland’s highly secure banking system based on a century-old commitment to protecting individual privacy created a perfect tax haven opportunity for wealthy U.S. taxpayers to hide their assets from the federal government. Following the Obama Administration’s pledge to “crackdown” on tax evasion, the United States Government began investigating UBS and other foreign banks seeking information about undisclosed “offshore” accounts held by U.S. taxpayers. However, the Government soon realized that foreign bank settlements would yield only a fraction of its annual tax revenue losses. It became clear that the tax evasion crackdown would be better served by prevention rather than prosecution, and thus, the Foreign Account Tax Compliance Act (FATCA) was born. 

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Courtney Cardin, J.D. Candidate

Capital Punishment Trendsetting in North Carolina

9/18/2011

This week marked the beginning of a new milestone for critics of capital punishment and its racially disparate effect.  A new law in North Carolina, designed to battle systemic racism in capital punishment sentencing, made its first appearance in court thanks to Marcus Reymond Robinson. The Racial Justice Act, N.C.G.S.A. § 15A-2010, the first of its kind, allows death row inmates to commute their death sentences to life without parole if they can provide evidence, including statistical analysis, that shows that their sentence was racially motivated.  This includes evidence that shows that there are statistically significant racial disparities in the seeking or imposing of death penalties, in addition to the use of race as a peremptory challenge in jury selection.  Out of the 158 convicts on North Carolina’s death row, 151 have filed claims under the Racial Justice Act, including a number of white inmates. Robinson’s case is the furthest along in the legal pipeline despite a delay, and the outcome will likely set the tone for the many challenges to follow. 

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Melissa Gohlke, J.D. Candidate

Upcoming at the Supreme Court: Attaching GPS Devices to Vehicles Absent a Warrant

9/18/2011

In November, the Supreme Court will hear arguments in United States v. Jones, No. 10-1259, which asks whether police need a warrant to attach a GPS device to a criminal suspect’s vehicle and track its movements over time.

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Naomi Birbach, J.D. Candidate

Get Ready for Game Two: Another Perspective on the Clemens Trial

9/18/2011

On August 19, 2010, a federal grand jury indicted Roger Clemens for lying to Congress when he claimed that he never used steroids under oath. The indictment allowed Clemens to join the ranks of Marion Jones and Barry Bonds and become the third famous athlete within three years to be charged with use of performance-enhancing drugs. Now, as the first trial has already started and ended and had its fair share of mistakes and missteps, the question remains if Clemens will get out of this mess with the same bravado he had walking into it. Based on the actions of both the prosecution and the defense attorneys so far, it remains to be seen if the jury will end up making a decision based either on Clemens’ guilt or innocence or on which attorney they loathe more.

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Jaclyn Epstein, J.D. Candidate

Case Against Clementi’s Roommate Highlights Public, Legal Challenges of Bias Crime Prosecutions

9/11/2011

As the common name would suggest, the prosecution of a hate crime may be charged with emotion. A September 2010 student suicide at Rutgers University has thrust the issue of “hate crime” – or bias crime – laws into the public and legislative spotlight.

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Julia Chapman, J.D. Candidate

Prosecutors Get a Second Swing at Roger Clemens

9/11/2011

On Friday September 2, 2011, Judge Reggie Walton, a judge on the Federal District Court for the District of Columbia, decided to give prosecutors a second chance to present their case against Roger Clemens for lying under oath about his use of performance-enhancing drugs. See Lester Munson, Why Roger Clemens Faces Another Trial, ESPN Commentary (Sept. 3, 2011). The first trial ended on July 14 in a mistrial when the prosecution presented evidence barred by the judge. See id.

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Mikaela Cavalli, J.D. Candidate

Civil Penalties Erode Civil Liberties

8/18/2011

At the Volokh Conspiracy, Jonathan Adler notes that the D.C. Circuit rejected a challenge to ex post application of DC's sex offender registry on the grounds that registration was "'civil and nonpunitive' in intention and effect."  Anderson v. Holder, No. 10-5097 (August 16, 2011).  Adler cites several studies finding that sex offender registries are not a very effective deterrent, and probably increase recidivism.

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The Game’s Over, But Did Anyone in the Bonds Trial Win?

4/15/2011

The government’s seven-year investigation of Barry Bonds ended anticlimactically on Wednesday, as the jury found Bonds guilty of obstruction of justice, but could not agree on the three counts of perjury.  As someone who has long been critical of the government’s case, the jury’s decision is somewhat validating, but it’s hard to declare victory when your complaints about the government wasting time and money prove to be resoundingly true.  (Bonds, on the other hand, flashed a victory sign to fans outside the courthouse, despite the fact that he still is a felon under the jury’s verdict).  See Juliet Macur, Bonds Guilty of Obstruction, but Not of Perjury, New York Times, April 13, 2011.  So, what exactly does the verdict mean?  And what’s at stake in the post-verdict extra innings of this case?

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Barry Bonds Trial: Week 3

4/10/2011

The Barry Bonds trial is now in the hands of the jurors.  Both the prosecution and defense rested this week, but not after some late-inning drama from the prosecution, which tried valiantly to rescue its tattered case with a “miracle” tape recording in which Bonds’ former personal assistant Steve Hoskins and Bonds’ former orthopedic surgeon Arthur Ting allegedly discuss Bonds’ steroid use.  The presiding judge threw it out.  Bonds faces three counts of perjury (the government dropped yet another charge this week) and one count of obstruction of justice relating to statements he made to a grand jury in 2003 about his use of performance enhancing drugs.  Like last week, here’s a rundown of the week’s highlights:

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Brittany Clement

Barry Bonds Trial: Week 2

4/1/2011

The prosecution’s case against Barry Bonds went from risqué to risky this week, as it began with graphic testimony from Bonds’ former mistress about changes to his body throughout their relationship, and ended with Bonds’ former orthopedic surgeon contradicting last week’s testimony by Steve Hoskins, Bonds’ former friend and personal assistant.  Bonds faces four counts of perjury and one count of obstruction of justice relating to statements he made to a grand jury in 2003 about his use of performance enhancing drugs.  Like last week, here’s a rundown of the week’s highlights:

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Brittany Clement

Barry Bonds Trial: Week 1

3/27/2011

It’s official – the Barry Bonds trial began this week, bringing with it salacious statements about shrunken testicles and insertion of syringes into Bonds’ buttocks.  (It’s hard to believe the government has spent $6 million on this.)  Bonds faces four counts of perjury and one count of obstruction of justice relating to statements he made to a grand jury in 2003 about his use of performance enhancing drugs.  Here’s a quick rundown of the week’s highlights:

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Brittany Clement

Reflecting

3/21/2011

On March 1, Bulgarians celebrate the dawning of spring with the holiday Баба Марта (Baba Marta; Grandmother March) with the tradition of giving friends and family red-and-white interwoven strings to bring health and happiness during the year. It is supposed to be a month of positivity, renewal, and rebirth.  Unfortunately for my family, March 21, 2011, marks the one-year anniversary of the murder of my uncle, George Markov, who died while he was sitting in his backyard on Long Island smoking a cigarette on a Sunday night like any other.

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George Chipev

Policing Snitching to Protect Defendants' Rights

3/20/2011

Informant testimony, or snitching, is an ingrained practice. It is a tool that dates back to English common law and has been “recognized and approved by the United States Congress, United States Courts and the United States Sentencing Commission.” Each of these regulatory bodies condones these concessions in order to ensure convictions; they allow prosecutors to offer incentives to otherwise unmotivated witnesses to get the bigger and badder defendant.

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Emily Smith

Play Ball: Expect a Circus in the Upcoming Bonds Trial

3/14/2011

Last month I wrote about the government’s weak case against Barry Bonds, which is slated to go to trial later this month.  I stand by that assertion, especially given a recent development in the case, in which the presiding judge, United States District Court Judge Susan Illston, asked the two sides to resolve the case before going to trial.  Prosecutors have said they would have a conversation with Bonds’ attorneys regarding a plea bargain, but Bonds’ lead attorney expects a trial.  See Juliet Macur, Resolution Requested in Bonds Case, New York Times, Feb.18, 2011.  This seems especially likely after Bonds pled not guilty to perjury charges last week.  The government’s willingness to negotiate a plea and Bonds’ apparent readiness for a trial clearly indicates that Bonds’ attorneys believe the government’s case is so weak that they would rather face a San Francisco jury than voluntarily give their client any jail time and a felony on his record.

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Brittany Clement

What Does “Delay” Really Mean? A Discussion of United States v. Tinklenberg

2/28/2011

On February 22, 2011, the Supreme Court heard a less juicy but nonetheless interesting case - United States v. Tinklenberg, 131 S. Ct. 62 (2010) (No. 09-1498), on writ of certiorari from the Sixth Circuit. The decision may affect the administration of courts in criminal cases. At issue was whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, 18 U.S.C. 3161(h)(1)(D) (Supp. III 2009), or is instead excluded only if the motion actually causes a postponement, or the expectation of postponement, of the trial. 

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George Chipev

Should Science Stay Out Of The Court Room?

2/21/2011

In a justice system designed with “blind” in mind, law has embraced the scientific community and the guidance it offers in convicting the guilty. As noted by the National Research Council, “many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.” Law's embrace is seemingly well-founded because of science's benefit: it is dispassionate. It appears to remove bias from the equation and present the “truth” with confidence. It is neutral in a forum that usually requires sifting through adversarial points of view. Science seems to be driven by logic, and plays the role of the calming voice in the middle of a he said-she said storm. Judges may even subconsciously appreciate the role that science plays. It removes the hard parts of their jobs, giving them the “right” answer. Because “science” said it is so, it must be true.

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Emily Smith

Why the Government’s Case Against Barry Bonds Strikes Out

2/14/2011

Most baseball fans will surely say they “know” Barry Bonds took steroids during his Major League Baseball career.  Whether the government can prove Bonds himself knowingly took steroids is an entirely different issue.  Yet that is precisely what federal prosecutors in California are trying to do in Bonds’ much awaited perjury trial, slated to begin on March 21 in the District Court for the Northern District of California.  The perjury charges stem from statements Bonds made in 2003 to a grand jury investigating the Bay Area Laboratory Co-operative (BALCO), now famously known for providing undetectable steroids to many professional athletes and Olympians.  At the trial, Bonds claimed he never knowingly used steroids and that he never asked his trainer and personal friend, Greg Anderson, what substances he was giving him, assuming they were harmless.  Anderson, one of the subjects of the 2003 BALCO investigation, eventually pled guilty to illegal steroid distribution and money laundering.  Whether Bonds’ statements are plausible or not, the government’s case against him falls flat for two main reasons.

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Brittany Clement

Ninety and kicking? How New York’s Martin Act is only getting stronger with age

2/7/2011

It’s shaping up to be quite a busy year for New York’s Martin Act, the state’s increasingly notorious “blue sky law” designed to combat financial fraud. See N.Y. GEN. BUS. LAW§§ 352-59 (McKinney 2010). For that matter, though, it’s been a busy decade. The Martin Act, which celebrates its 90th birthday this year, gives New York’s attorney general broad powers in both investigating and prosecuting financial fraud. Id. 

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Sarah Kelly-Kilgore

Criminal Liability for WikiLeaks

1/31/2011

Frustration over WikiLeaks’ embarrassing November 28 release of thousands of State Department communiqués will likely lead to aggressive efforts to prosecute individuals for the leak of classified information. Unfortunately for administration officials, the path to criminal liability for any involved party is unclear.

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Tom McSorley

Jason Pepper Must Have Run Over the Eight Circuit’s Dog

1/31/2011

The Supreme Court will hear oral arguments in Pepper v. United States on December 6thhttp://www.scotusblog.com/case-files/cases/pepper-v-united-states. The central issue is the Eight Circuit’s ban on consideration of post-sentencing behavior during resentencing.  For Jason Pepper, the upshot of the Eight Circuit’s decision is a forced return to prison for the same crime years after his release.

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Dan Starck

The Fourth Amendment and GPS Surveillance: DC Circuit

1/31/2011

On November 19, 2010, the District of Columbia Circuit Court of Appeals denied the United States government’s petition for a rehearing en banc in United States v. Antoine Jones.  In doing so, the D.C. Circuit refused to overturn an earlier panel decision finding that the use of a GPS device to track a suspected drug dealer’s movements for a month without a warrant violated the Fourth Amendment (The original opinion was issued under the case name United States v. Maynard).  The panel rejected the government’s arguments based on an earlier United States Supreme Court case, United States v. Knotts.  The panel distinguished Knotts by saying that the Court in Knotts specifically reserved the question of whether prolonged surveillance implicated the Fourth Amendment.  The panel alsorejected the government’s argument that Jones did not have a reasonable expectation of privacy in his movements because all of these movements took place in public.  Instead, the panel’s opinion suggested that Jones had a greater privacy interest in all of his movements together than each individual movementbecause the information gained by viewing the sequence of the suspect’s movements is greater than each individual trip viewed in isolation.

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Tim Feulner

United States v. Sykes and the Difficulty of Categorizing Broad Crimes

1/31/2011

On January 12, 2011, the Supreme Court will hear arguments for Sykes v. United States. In doing so, the Court will be deciding whether fleeing the police in a car constitutes a “violent felony” under the Armed Career Criminal Act (ACCA). The Circuits are currently split on this issue, with the Eleventh and Fourth Circuits holding that this is not a violent felony, while the Seventh Circuit held that Sykes had indeed committed a violent felony by fleeing the police in his car (the Fifth, Sixth, and Tenth Circuits also agree that this is a violent felony). This is a particularly important issue for the Court to decide not only because Sykes will be facing a statutory minimum of fifteen years in jail if his fleeing is found to be a violent felony, but also because the legal standard for categorizing a felony under the ACCA is unclear and fraught with problems.

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Brent Tunis

Arguments for and Against the Recording of Public Officials

1/31/2011

In my previous post, I referred to a few famous incidents of police on camera.

In the abstract halls of academia, we see the camera—at least as applied to public officials, including police officers—as a good thing: it provides better evidence for the jury when a crime is committed, it exposes misconduct when it exists, and it provides accountability to the electorate.  The defenses that arise are classic defenses against transparency: the observed people can’t do their job properly if they are observed; the armchair quarterbacks behind the camera will never properly relate to the job as it exists.   Put another way, you never know what happened before the camera was turned on.

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Tom White

Divergence of Rationales in Ninth Circuit Use of Force Opinion: Cert Petition for City of Santa Rosa, California v. DeSantis

1/19/2011

One recent cert petition before the Supreme Court regards the case of City of Santa Rosa, California v. DeSantis. DeSantis involves the issue of whether a police officer acts with a legitimate law enforcement purpose and is entitled to qualified immunity when he shoots someone believed to be armed when no alternative force option was available to him, but alternative force options were available to other officers at the scene.  The trial court denied summary judgment for the police officers, and this was affirmed by the Ninth Circuit in an unpublished opinion.  

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Alford v. Greene

1/19/2011

The Fourth Amendment guarantees that the “right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” It would (I hope) be difficult to find anyone who objected in general to the principles of this guarantee; on the contrary, most would agree that the rights enshrined in the Fourth Amendment are critical to the functioning of a free society. . . at least in theory. . . When the protections of the Fourth Amendment are pitted against the real-life pursuit of evildoers, however, society has long struggled with the costs of preserving a guarantee, that, as encapsulated by then-Judge Cardozo, provides that “[t]he criminal is to go free because the constable has blundered.” 

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Nicholas Soares

Summary of Barrister v. Illinois

1/19/2011

This term, the Supreme Court will have to decide whether to grant cert and provide a remedy to James Barrister.  Barrister was convicted of two counts of first degree murder for his part in a shooting of two people in a Chicago housing project in 1989, and was sentenced to life in prison.

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Henry Klementowicz

Premo v. Moore

1/17/2011

On October 12, the Supreme Court heard argument in the case of Premo v. Moore, on appeal from the Ninth Circuit.  The Ninth Circuit ruled that Moore’s Sixth Amendment rights were violated when his lawyer failed to suppress his confession, which was inadmissible because it was coerced by the police.

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Bob Nichols

Sentencing in the Steven Hayes Case

1/17/2011

Recently, a Connecticut judge disallowed a jury from considering arguments of convicted murderer Steven Hayes’s defense lawyers relating to the higher cost of imposing the death penalty over life imprisonment in the sentencing phase of his trial.  According to The Wall Street Journal Law Blog, Connecticut judge Jon Clarence Blue ruled that the jury is “charged with the task of using reasoned moral judgment, not counting dollars and cents,” so cost-benefit arguments were irrelevant in the jury’s decision-making process. This occurred nearly a month after the New York Times reported that Missouri is encouraging judges to utilize “price tag” information in sentencing decisions by providing such data (along with other information, like recidivism rates for various sentences and crimes) in an easily accessible format.  Professor Thaddeus Hoffmeister of the University of Dayton School of Law noted on his Juries blog that Steven Hayes was convicted of a “heinous” murder while the new information system deployed in Missouri seems to be primarily focused on lower level crimes. Hoffmeister leaves open the question that these recent events prompt: “Should jurors be allowed to consider economic costs when sentencing individual defendants?”

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Tom McSorley

United States v. Reyes-Hernandez

1/17/2011

In the wake of United States v. Booker, in which the Supreme Court held that the federal sentencing guidelines are advisory, the battle over judicial discretion in sentencing has played out on a number of frontiers. Once at the forefront of this battle was the hefty difference between sentences for crack and powder cocaine offenses. In United States v. Kimbrough, the Supreme Court ruled that this disparity is a permissible factor for judges to consider when trying to impose a sentence sufficient but not greater than necessary to achieve the goals of sentencing.

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Tom McKay

Does President Obama Lack “Empathy”?

1/17/2011

President Obama’s recent completion of what has become the farcical yearly tradition of presidential pardons for turkeys merely added a morbid statistic to an area of growing concern in the criminal justice community: Turkeys pardoned – 4, People pardoned – 0. Seeking to add humor to the proceedings, Obama described the turkey pardon as one of his “awesome” responsibilities as President. Sarcastic though he may have been, the President would be well advised to remember that one truly awesome responsibility he has is “to grant reprieves and pardons for offenses against the United States” – to people, that is.

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Tom McKay

Tolentino v. US

1/17/2011

The Supreme Court has recently agreed to hear a case in which a driver was pulled over for playing his music too loudly and was subsequently charged with the crime of driving with a suspended license. 

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Dominic Carucci

Welch v. United States

1/15/2011

The Supreme Court is currently considering whether to grant review of the Seventh Circuit’s decision in Welch v. United States.   In the case, petitioner Devin Welch pled guilty to unlawful possession of a firearm by a felon after drug task force agents discovered the weapon hidden beneath a mattress while executing a search warrant.  During sentencing, the lower court classified Welch as an armed career criminal because it deemed that he had three prior convictions that qualified as ‘violent felonies.’  The third of these prior convictions was a prior juvenile adjudication for attempted armed robbery that was without a jury.

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Jason Chimon

Supreme Court Grants Cert in Fowler v. United States

1/15/2011

On November 15th, the Supreme Court granted certiorari to hear the case of Fowler v. United States.  http://www.courthousenews.com/2010/11/15/31854.htm The defendant Charles Andrew Fowler was convicted of killing Todd Horner, a Haines City (Florida) Police Officer, with the intent to prevent him from communicating information about a federal offense.  Fowler and four others were planning to rob a bank when Fowler stepped out of the car shooting and killing Horner for trying to interfere with his plan to rob a bank with four other men. 

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Griffin Finan

News Update! Focus On: The Death Penalty

1/15/2011

Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities (PR Newswire, November 16, 2010).
On November 16, the Death Penalty Information Center released the results of a comprehensive study on how Americans view the death penalty. According to report’s polling, which sampled 1,500 registered voters nationwide, a majority of respondents supported punishing convicted murders by other means. The polling also noted that a plurality of voters did not believe an elected representative’s supporting a death penalty repeal would affect their vote. Respondent’s concerns centered on the costs of applying the penalty as compared to other pressing public safety needs, worry the penalty was being applied unfairly, and fear that the penalty risked executing the innocent. Hispanic voters were among the most likely to support alternative punishments, citing concerns over uneven application across racial lines along with moral objections. In recent years, Maryland, Colorado, Connecticut, Kansas, and New Mexico have each considered repealing the death penalty.

...

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Gabriel Maser

Schwarzenegger v. Plata - The Role of Judges and the Prison Litigation Reform Act in the Criminal Justice System

1/15/2011

In January of 2009, a federal three-judge panel in California determined that overcrowding of the State’s prison population was the primary cause of Eighth Amendment violations of prisoners’ rights to adequate health care. Plata v. Schwarzenegger, No. 3:01-cv-01351-TEH (N.D. Cal. 2009). The court issued a Prisoner Release Order, pursuant to the Prisoner Litigation Reform Act, 18 U.S.C. § 3626, ordering the release of approximately 46,000 inmates – a reduction of more than one-fourth of the state’s prison population.

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Ryan Thornton

Ninety and Loving It: Retired Justice Stevens All Vim and Vinegar

1/10/2011

Recently retired Supreme Court Justice John Paul Stevens will publish a review in The New York Review of Books of Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland. In the essay, Stevens offers criticism of former Supreme Court colleagues, gives a detailed explanation of his mid-career change of mind about the death penalty, and impugns the present state of capital punishment in the United States. Though presumably less capable of affecting capital punishment jurisprudence off the bench, Justice Stevens may significantly change the stature and position of retired Justices with his candid post-Court remarks.

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Christopher Clark

A Strange Case: The Trial of Ingmar Guandique, Charged with the Murder of Chandra Levy

1/10/2011

It may be hard to remember what life was like in the US prior to 9/11. I remember that summer before the start of 9th grade like it was yesterday. Well, actually, that’s a lie. But I do remember that in the weeks before 9/11, the People Magazine that my parents subscribed to covered only two stories: Aaliyah’s death in a tragic plane crash, and the mysterious disappearance of Chandra Levy.

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Jeremy Hutcher

Commentary on Berghuis v. Thompkins

1/10/2011

In response to the Supreme Court’s June 2010 decision in Berghuis v. Thompkins, the Marquette University Law School Faculty blog recently published a revised version of the Miranda warning:

First, you have the right to remain silent.

  1. 1.  Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 560 U.S. ___ (2010).
  2. 2.  But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

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Meg Slachetka

Supreme Court Issues Opinion in Abbott v. United States

1/10/2011

On November 15, 2010, the United States Supreme Court issued its first opinion of the term in Abbott v. United States; Gould v. United States. Before the Court were two appeals from the Third and Fifth Circuits.

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Police on Camera: Menace to Law Enforcement or Important Political Speech?

1/7/2011

In much of the United States, we are fortunate to have a professional police force.  They are the visible symbol of the social contract, and the most immediate reason—after the respect of our fellow citizens—why we can walk down the street with twenty or a hundred dollars and expect to make it to the other end untouched.  The police force of any Democratic society is one of the foremost defenders of the liberty of the members of that society.

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Tom White

Bullcoming v. New Mexico

1/7/2011

The Supreme Court has granted cert in Bullcoming v. New Mexico to decide whether the testimony of a laboratory supervisor, who did not personally observe a test, can satisfy the Confrontation Clause when a laboratory test is admitted as evidence and the analyst who conducted the test is unavailable to testify.

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Anna Driggers

When is a 13-year-old student under arrest?

1/7/2011

When is a 13-year-old student under arrest?  On November 1, 2010, the United States Supreme Court granted a writ of certiorari to hear arguments in the case, J.D.B. v. North Carolina, 2010 WL 2215447 (2010).  At issue in the case is whether a 13-year-old student was entitled to the protection of Miranda warnings when questioned by police at school.

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Daniel McGinn-Shapiro

Defining Justice

1/5/2011

In general, the goal of the American legal system is justice.  As a community, we want to get the “perp,” right the wrong and restore our sense of order.  We put bad guys behind bars to keep the rest of us safe.  But justice also requires providing those accused of crimes with a fair and appropriate adjudication of their guilt.  They are not only given, but informed of their rights to counsel and silence, and they should have the right to due process upheld at each step.  Justice, therefore, means avoiding mistakes.  It keeps those who are innocent out of the criminal system, and its utmost end is to find the truth.   However, if you have been reading the Chicago Tribune lately, you would be forgiven for forgetting that simple goal.

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Emily Smith

Lago Agrio's Loch Ness Monster

1/5/2011

On November 5, Judge Lewis Kaplan in the Southern District of New York issued an opinion detailing why he is allowing Chevron to depose Steven Donzinger, a Lago Agrio plaintiffs’ attorney in the massive environmental tort litigation in Ecuador (See AmLaw Daily’s write-up:http://amlawdaily.typepad.com/amlawdaily/2010/11/kaplanchevron.html).  Kaplan’s decision was based primarily on outtakes from a documentary, Crude.   

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The New CFTC Enforcement Rules: A Step in the Right Direction?

1/5/2011

The Commodity Futures Trading Commission has long been known as the black sheep of financial regulatory agencies.  Traditionally, the CFTC regulated a very limited set of financial transactions, futures contracts dealing with agricultural commodities.  As such, the CFTC has less than a quarter of the attorneys of its big brother on the other side of the District, the Securities & Exchange Commission.  However, with the recent expansion of futures contracts into areas other than commodities, the CFTC’s enforcement abilities have been strained beyond the means of a small agency with a relatively narrow mission.

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Tyler Layne

Bullying and Teen Suicides are Tragic, But Criminal Law is Not the Solution

1/5/2011

The recent string of teenage suicides attributable to bullying has caused quite a stir in the media and high schools nationwide. To be sure, these cases illustrate the tortuous experience many teens have in high school and raise serious questions about school authorities’ oversight (or lack thereof); however, using criminal law as a remedy for these tragic deaths is neither a feasible nor sensible solution to the problem. Yet this is precisely what one district attorney is attempting to do after the suicide of a fifteen-year-old girl.

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Brittany Clement

Connick v. Thompson: Liability for District Attorney Offices Under a Failure to Train Theory

11/24/2010

On October 6, 2010, the Supreme Court heard Oral arguments in Connick v. Thompson. After serving 14 years on death row for first-degree murder, John Thompson’s murder conviction was overturned by a Louisiana Court of Appeals because the prosecutors in the case failed to disclose an exculpatory lab report to defense council. Under the failure to train theory, a jury awarded Mr. Thompson $14 million in damages. The Fifth Circuit affirmed this award, and the Supreme Court granted certiorari to determine the question of whether the District Attorney’s office could be liable for failing to train ADAs on Brady rules.

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David Overhuls

Harrington v. Richter: SCOTUS Habeas Petition

11/24/2010

On October 12, 2010, the United States Supreme Court heard oral arguments in Harrington v. Richter.  Before the Court was an appeal from the Ninth Circuit decision to grant a habeas petition for lack of effective counsel.

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Daniel McGinn-Shapiro

D.C. Circuit Decides Lay Witness vs. Expert Witness Distinction in Drug Cases

11/17/2010

In less than a month, the D.C. Circuit Court of Appeals will hear oral arguments in U.S. v. Smith (Case 09-3119).  The appeal challenges the conviction of John Smith, the named defendant, for participating in a drug distribution ring.  Central to Smith's conviction was the testimony of an FBI narcotics agent John Bevington, a twenty-year veteran of the narcotics team who was in charge of the case against the drug-ring's alleged kingpin and Smith's acquaintance, Lonnell Glover.

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Tyler Layne

Prosecuting Juvenile Prostitution

11/17/2010

On October 6, 2010, a preeminent pop culture law commentary in America, Law and Order: Special Victims Unit, aired an episode about the prosecution of juvenile prostitutes. In the episode, a couple is eventually arrested and brought to justice for tricking families into believing they were sending their children to farms, when they were actually being sold into the sex trade. In the last few years, increased attention to problems with juvenile prostitution has grown, with documentaries and New York Times articles; however, legislators and prosecutors are at a loss of how to deal with minors who have been arrested for prostitution. Prosecuting or otherwise trying to prevent minors from engaging in prostitution is problematic due to the difficulty in invoking typical prostitution laws and a general absence of other effective legal mechanisms to address the needs of these children. Furthermore, unlike the children in Law and Order, most of these children are wards of the state and do not have families to protect them.

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Katie Kronick

Four state senators arrested by the FBI in corruption probe

11/17/2010

This month, four Alabama State Senators were among 11 arrested for corruption in a wide ranging corruption probe involving a bill to allow some forms of gambling. While reports of the inquiry had been coming in since last spring, it wasn’t until October 4th that the targets of the probe became known.

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Henry Klementowicz

Comment on DePierre v. United States: Why “cocaine base” should be limited to crack cocaine

11/17/2010

This term, the Supreme Court will hear arguments on DePierre v. United States, a case determining whether the phrase “cocaine base” is limited to “crack” cocaine, or whether the phrase encompasses every form of cocaine that is classified chemically as a base.  Mr. DePierre was convicted of distributing more than 50 grams of cocaine base under 21 U.S.C. § 841(a)(1) (2006) which created the sentencing minimums for punishing drug-related offenses.  The statute provides a mandatory minimum 10-year sentence for offenses involving “50 grams or more of a mixture or substance…that contains cocaine base.”  The meaning of the phrase “cocaine base” has created a deep division between the circuit courts with four courts of appeals holding the phrase is limited to crack cocaine, while six courts of appeals have interpreted the phrase to mean all chemically basic forms of cocaine. 

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Meghan King

Bond v. United States

11/14/2010

The Supreme Court recently added Bond v. United States to its docket.  The fundamental issue in this case is whether a private citizen has standing to challenge the constitutionality of a federal law on the grounds that said federal law impermissibly abrogates the powers of State government in contravention of the 10th Amendment.  Based on the important issues of federalism raised in Bond's appeal, as well as the colorful facts underlying the case, the Court's ultimate decision will be one to watch for.

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Jonathan Greenberg

Allshouse v. Pennsylvania – Pending Cert Petition in US Supreme Court

11/14/2010

Allshouse v. Pennsylvania (Docket No. 09-1396) (pending cert.) seeks to resolve whether or not a child’s statements to a child protection worker who is investigating allegations of abuse should be considered “testimonial” evidence and hence subject to the demands of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).

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Nicholas Soares

Where Can Troy Davis Appeal Now (If Anywhere)?

11/14/2010

It is no secret that in the later stages of his career Justice Stevens developed misgivings on the justification of the death penalty for administration of criminal justice. See, e.g., Baze v. Rees, 553 U.S. 35, 78 (2008) (Stevens, J., concurring) (expressing belief that the death penalty is retained by state legislatures as a matter of “habit and inattention”). It is probably his misgivings, more than anything, which caused the court to take the extraordinary step of transferring the original petition of Anthony Troy Davis for a writ of habeas corpus to the United States District Court for the Southern District of Georgia. In re Davis, 130 S.Ct. 1, 1 (2009) (Stevens, J., concurring). The district court found that Davis’ purported “new evidence” did not contradict the material evidence that he had murdered Mark Allen MacPhail in 1989, concluding, “Mr. Davis is not innocent.” (That order available from ScotusBlog here). The district court later denied a Certificate of Appealability to the Eleventh Circuit to Mr. Davis. The district court indicated confusion as to its role. That confusion is shared. The Supreme Court’s taking of original jurisdiction raised more questions than it answered.

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Pat Reisinger

Reasonableness of law enforcement entry into curtilage should be a case-by-case inquiry rather than a per se prohibition

11/10/2010

In Missouri v. Kruse, the State of Missouri seeks certiorari from the Supreme Court and asks the Court to invalidate a Missouri Court of Appeals ruling creating a rule that it is unreasonable for police officers to enter the curtilage of an individual’s home to cover the back door while other officers conduct a knock and talk at the front door, seeking the non-resident subject of an arrest warrant.  The Missouri Court of Appeals expanded upon the Supreme Court’s rule in Steagald v. United States, whichbars law enforcement officers from entering the home of a third party when the subject of an arrest warrant is in the home, absent consent of the resident or exigent circumstances.  The Missouri Court of Appeals held that law enforcement officers also may not enter of the curtilage of the home absent consent or exigent circumstances.  While the home is a source of great privacy interests, a case-by-case inquiry into the reasonableness of the officers’ intrusion is likely more appropriate than a per se rule, like the one adopted by the Missouri Court of Appeals that entry into the curtilage of a home violates the Fourth Amendment rights of the resident.  A case-by-case inquiry into the reasonableness of the officers’ intrusion into the curtilage should include consideration of the nature of the law enforcement activity and the characteristics of the curtilage, particularly its openness to the public. 

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Anna Driggers

A Second Comment on Skinner v. Switzer

11/10/2010

Does a death row inmate who claims he is innocent have a right to obtain DNA testing on evidence found at the scene of the alleged crime? On March 25, 2010, one hour before Hank Skinner was scheduled to be executed for the 1993 murder of his girlfriend and her two adult sons, the Supreme Court, in Skinner v. Switzer, No.09–9000 (2010), decided to stay Skinner’s execution to answer this question.

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Ryan Thornton

Comment on Skinner v. Switzer

11/10/2010

Henry Skinner was convicted of the murder of his girlfriend and two sons, and sentenced to death.  SeeSkinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009). Before the trial, Skinner’s attorney had refused to have DNA testing done on several pieces of evidence, and after Skinner’s direct appeals failed, he filed motions seeking to capitalize on a portion of the Texas Code of Criminal Procedure which allows the opportunity to seek post-conviction DNA testing.

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Jason Chimon

The confusing world of judicial comments, summations, and instructions: Follow-up on Wong v. Smith

11/10/2010

Ah, November.  I still love the weather, but it’s now time to start shopping for holiday gifts, and I hate wish-lists.  Specifically, I hate being constrained to such wish-lists by the extraordinarily methodical engineers in my family.  I’ve been told this is impractical and highly inefficient, but I also dislike planned rest-stops on vacation, and can’t stand the idea of the Yankees in the playoffs.  Okay, that last one may be an outlier, but what I’m trying to say is that I’m usually one for surprises – even most bad ones – as they produce a feeling of adventure I think the world is otherwise missing.  Regardless, I have to admit I was unpleasantly surprised when the Supreme Court denied cert. in Wong v. Smith last week. (Comment on dissent from denial of cert. petition (Orders, Nov. 1, 2010)

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Sarah Kelly-Kilgore
Pending Cert Petition in Wrisley v. Crowe

11/7/2010

Wrisley v. Crowe presents the situation of coercive questioning by police officers of minors, which has been contested on both Fifth and Fourteenth Amendment grounds.  The three issues on appeal concern (1) whether police are subject to liability under the Fifth Amendment for allegedly coercive questioning used only in pre-trial proceedings that do not impose criminal penalties; (2) whether police are subject to liability for questioning excluded under the Fifth Amendment and not rising to a level that “shocks the conscience” under the Fourteenth Amendment; and (3) whether police can “shock the conscience” for purposes of liability under the Fourteenth Amendment by non-tortious conduct that causes or threatens no physical harm.

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Sean Douglass

The Anti-Bullying Bill of Rights

11/7/2010

In the wake of the tragedy at Rutgers University, the New Jersey legislature announced a proposal this week that would seek to stop the bullying that allegedly led Tyler Clementi to take his own life. Called the Anti-Bullying Bill of Rights, this measure seeks to require schools and their employees to report harassment to police.  However, it goes further than any prior New Jersey statute.  It requires reportage even if the bullying occurs off school property and holds employees responsible through disciplinary action if they do not.  The proponents of this initiative hope that it this tough new law, in fact, the most sturdy anti-bullying in the nation, will help those like Clementi. 

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Emily Smith

Tyler Clementi and Bias Crime in New Jersey

11/7/2010

On September 22, Tyler Clementi, a freshman at Rutgers University, took his own life by jumping off the George Washington Bridge.  Clementi’s roommate, Dharun Ravi, and Molly Wei, a friend of Ravi’s from high school, had witnessed a sexual encounter between Clementi and another man using Ravi’s webcam accessed remotely from Wei’s computer.  After watching the initial video, Ravi tweeted to let his friends know that he had witnessed Clementi kissing a man.  Two days later, Ravi tried to again use the camera and Wei’s computer to catch Clementi in a sexual situation.  This time, he tweeted his plans ahead of time so his friends could watch the encounter using iChat as well.  Although his second attempt to broadcast Clementi was unsuccessful, Clementi found out about both incidents and posted on a gay message board that he didn’t think there was anything he could do about the incident, other than request a new roommate.  Clementi also reportedly filed a complaint with his resident advisor before committing suicide.  He was 18 years old.

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Meg Slachetka

Federalism and California's Proposition 19

11/7/2010

On November 2nd, Californians will vote on Proposition 19, an initiative that if passed would legalize the possession and recreational use of marijuana in most cases.  The proposed regime would permit local governments within the state to impose taxes on and regulate the sale of the drug.

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Thea Cohen

Privatizing Juvenile Justice

11/3/2010

Recently, the Southern Poverty Law Center filed a federal lawsuit against Youth Services International, Inc. (YSI), a private company that operates fifteen for-profit juvenile prisons nationwide, funded by state taxpayers.[1] The suit alleges that YSI staff at the Thompson Academy facility in Broward County, Florida, physically and sexually abused juvenile inmates, and unconstitutionally denied juvenile inmates access to their attorneys.  A mother of an alleged victim stated that "[n]o child should ever have to endure something like this from a system that is supposed to help him."[2]

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Ron Coenen

Kentucky v. King

11/3/2010

On April 19, 2010 the Commonwealth of Kentucky filed a petition of writ for certiorari in the case of King v. Commonwealth, 302 S.W. 3d 649 (Ky. 2010). It is of particular importance that the Supreme Court accepts this petition because the Court has yet to address if and under what conditions may law enforcement officials rely on police-created exigent circumstances to justify a warrantless entry of a home.

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Brent Tunis

Ashcroft v. Al-Kidd: Are High-Ranking Officials Immune to Suit?

11/3/2010

On October 18th, the Supreme Court granted certiorari to its first case of the new term: Ashcroft v. Al-Kidd, 580 F.3d 949 (9thCir. 2009), cert. granted, 2010 U.S. LEXIS 8303 (U.S. Oct. 18, 2010) (No. 10-98), a plea by former U.S. Attorney General John Ashcroft for immunity to a lawsuit alleging that he misused a federal anti-terrorism law. The case concerns the arrest and detention of Nevada resident Abdullah al-Kidd, who was detained for 15 days under a material witness warrant (issuedfor a temporary detention of an individual who was a witness of someone else’s alleged crime when it is believed that the individual will not be available at the time of trial) before being released and held on a form of probation for over a year. Al-Kidd claims that the material witness law was used unconstitutionally to detain suspects that the government had insufficient evidence to arrest otherwise in order to further investigate them as suspects.

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Julia Sarnoff

Comment on Jimenez v. City of Chicago: Why Federal Courts Should Follow the Ninth Circuit’s Approach to Journalist’s Privilege

11/3/2010

The District Court for the Western District of Washington granted journalists a major victory in Jimenez v. City of Chicago, 2010 WL 3292665 (W.D. Wash. 2010), in which it applied the Ninth Circuit’s journalist’s privilege test to quash a subpoena of a student journalist’s notes.

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Brittany Clement

Comment on Michigan v. Bryant: Court Confronts Confrontation Clause

11/3/2010

On October 5, the Supreme Court heard arguments in Michigan v. Bryant in the Court’s latest attempt to wrestle with the meaning of the Confrontation Clause. The case stems from a 2001 shooting in Detroit.  When Detroit Police officers responded to the reported shooting, they found a severely wounded Anthony Covington lying on the ground at a gas station.  After the officers spoke with Covington, they arrested Richard Bryant based on Covington’s statements that implicated Bryant in the shooting.  Because Covington died two hours later, he was unavailable to testify at Bryant’s subsequent trial. At that trial, the judge admitted the hearsay statements made by the victim to the police on the night of the murder as excited utterances, and Bryant was convicted of second degree murder.  Bryant appealed his conviction arguing that the use of the victim’s hearsay statement violated his Sixth Amendment right to “be confronted with the witnesses against him,” and the Michigan Supreme Court reversed his conviction finding that the admission of the victim’s statements did violate the Confrontation Clause.

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Tim Feulner

Md court Rules Defendants Have Right to Counsel at Bail Hearing (Md. Daily Record, Legal Times: 10/5/2010)

11/3/2010

A Maryland state circuit court judge in Quinton Richmond et al. v. District Court of Maryland et al. ruled that the initial bail hearing is a “critical stage” of a criminal proceeding meaning that it is subject to the Sixth Amendment’s right to counsel, reversing previous holdings of the Court of Appeals.  The opinion cited the 2008 Supreme Court case Rothgery v. Gillespie County, Texas, where the court found that a criminal defendant’s initial appearance before a magistrate where the defendant’s liberty is subject to restriction, marks the initiation of adversarial judicial proceedings and thus triggers the Sixth Amendment right to counsel.  The court’s opinion was that the initial bail hearings in Maryland held before a commissioner, are similar enough to the hearings at issue in Rothgery as to trigger the same Sixth Amendment protections.

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Griffin Finan

Comment on Wong v. Smith: Why the Supreme Court should grant cert

11/1/2010

It’s late October, and we’ve finally reached my favorite season of the year: the leaves are changing, there’s post-season baseball to be watched, football weather to be enjoyed, and SCOTUSblog’s “Petitions to watch” to be discussed.  The site’s last edition – discussing petitions up for consideration on October 15 – included a number of cases in the criminal field, encompassing such issues as ineffective counsel, jury instructions, sentencing factors, and felon disenfranchisement.  Among those was Wong v. Smith, a petition arising out of the Ninth Circuit that may renew debate over the propriety of giving Allen instructions to a deadlocked jury.  At issue in the case is whether a series of increasingly specific jury instructions given by the state judge coerced jurors into returning a guilty verdict.

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Sarah Kelly-Kilgore

Leaving the Factfinding to the Factfinders

11/1/2010

The Supreme Court recently denied certiorari in the case of Hall v. Thaler, declining to weigh in on the purported issue whether environmental factors should be taken into account in determining mental retardation for purposes of employing the death penalty. (http://www.scotusblog.com/case-files/cases/hall-v-thaler/). As a result, Texans return to their dramatized emulation of Yosemite Sam, yodeling and happily firing their six-shooters, while the rest of us begrudgingly take cover from the shower of falling bullets. Moral leanings aside, however, I would like to take the opportunity to voice my support for this decision.

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Christopher Clark

Consistency in the Evaluation of Mental Retardation

11/1/2010

SCOTUSblog recently posted the petitions for certiorari for the October 15, 2010, conference.  Hall v. Thaler(http://www.scotusblog.com/case-files/cases/hall-v-thaler/) is a capital case wherein a man sentenced to execution for capital murder is challenging the determination that he is not shielded from the death penalty despite having an IQ below seventy and substantial adaptive limitations that satisfy the clinical definition of mental retardation.  Hall argues that even if the retardation was caused, in part, by “environmental” factors, he was in the scope of Atkins v. Virginia, which bars execution of the mentally retarded, and he further contends that Texas’ more subjective approach to assessing adaptive limitations violates Atkins by departing from clinic standards (namely, the clinic definitions of retardation from the American Psychiatric Association and the American Association on Mental Retardation).

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George Chipev

Comment on the Rise of Federal Grand Juries for Terrorism Prosecution

11/1/2010

 In 1982 Bernardine Dohrn was confined to a federal correctional facility, not charged with any crime, but rather held in civil contempt, in an effort to compel her to testify. In her case, the judge wanted her to produce samples of her handwriting to the grand jury, despite the fact that the FBI and federal government had boxes of her handwriting. When she was finally released, seven months later, the judge instructed the federal prosecutor to utilize the handwritten letters she had submitted to him about dangerous jail conditions. 

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Dominic Carucci