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Posted in Criminal on Saturday March 15 2014 @ 8:27am

The new New York Review of Books is in, and as usual there is so much to see. We are going to focus on the ads -- yes, the squillions of book ads, all of which look good but some of which may be particularly interesting to court-o-ramans:

This list is not exhaustive! Happy reading!

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The Five Percent

Posted in Criminal on Tuesday March 04 2014 @ 11:55am

What is cruel and unusual for the purposes of the Eighth Amendment? The U.S. Supreme Court held, in Atkins v. Virginia, that executing mentally retarded defendants amounted to cruel and unusual (again with capacity!), and was thus unconstitutional. What that decision left out, however, was what was meant by mentally retarded or intellectual disability.

States established criteria in their crazy patchwork way. As one can imagine, the results are not uniform. The Death Penalty Information Center (DPIC) compiled a state-by-state list of definitions.

Many states require a particular IQ -- usually around 70. But what about statistical deviation? IQ tests are only so accurate (and, some might argue, not very). Florida requires a 70. IQ is usually determined as a score, plus or minus 5. So, what of those plus-or-minus-5 group? One death row inmate in Florida is seeking reprieve due to his raw score of 71. See Supreme Court to Revisit IQ Rule in Death-Penalty Cases, Jess Bravin, Wall Street Journal (March 2, 2014). See also Hall v. Florida: Florida's Attempt to Limit Atkins' Constitutional Protection, John H. Blume, American Constitution Society (February 20, 2014).

See the SCOTUSblog resources on Hall v. Florida for more.

How could an outcome for Hall affect states in the future? See the DPIC's States That Have Changed Their Statutes to Comply With the Supreme Court's Decision in Atkins v. Virginia. If the Court finds for Hall, expect a similar update incorporating language and guidance from the opinion.

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Common Good

Posted in Criminal on Thursday July 18 2013 @ 7:15am in no way resembles the popular notion of conservativism. But we like our old documents and rules, and we like them to be (to the extent modern times allow) all nice and preserved-like.

Are we mere Luddites, clinging to our Rolodexes and ink pens for the sake of tradition? Are we stuck in the past, with our Retro TV and our mood rings? (Come to think of it, Uncas did introduce one of us like this: This is Anna Skovee. She's from the 70's!)

No, there is something more to this. When we tamper with the Constitution or the common law, our entire system -- legal, governmental, societal -- breaks down. We have seen the demise of the civil jury here and (even moreso) in the UK. We have chipped away at the grand jury. And several states have spun the common law gold standard of self defense into straw, turning a useful and sane defense it an unrecognizable and very dangerous principle.

Was the common law so terrible that we felt the need to slice and dice it? We are all for reform when reform is due. We love innovation, and wish people would not fear it so. But we also live by the mantra If it ain't broke, don't fix it. The common law has been around since the Middle Ages. To it, we owe wonderful inventions such as juries, precedent, habeas corpus, and warrants. Conservatives and liberals alike should embrace the common law, as it protects individuals against the state, gives everybody a voice, and provides for basic freedoms. You can see its influence on the Magna Carta and the Declaration of Independence. Boalt Hall provides an excellent background history of common and civil law: The Common Law and Civil Law Traditions. Is this really something we want to abandon? Some might say yes. See The Death of the Common Law: Expiry Date, 2100, Duhaime's LawMag (October 14, 2009).

Can grand juries filter out bad cases? They have their little problems and may seem antiquated, but let's not throw the baby out with the bathwater. A good grand jury serves as a check on police and prosecutorial powers. See Skipping Grand Jury Bad Idea, Tom Luken, Cincinnati Enquirer (July 17, 2013). For perhaps more than you ever wanted to know on the topic, see the University of Dayton's excellent Federal Grand Jury and State Grand Jury websites.

Whither habeas corpus? As the Violent Femmes might say: gone, daddy, gone. See Graffiti Watch: Habeas Corpus, RIP, 1250-2006, Dean of Cincinnati, Cincinnati Beacon (October 10, 2006).

As for self defense -- sigh. We've already been over that. See De-fense!, (April 5, 2012). See also Notable Comments on Self-Defense Laws by Attorney General Eric Holder Sentencing Law and Policy (July 16, 2013).

What started this trend away from our common law roots? Are legislators without law degrees, an increasing phenomenon, to blame? Is the Tough on Crime crowd, who rose to power in the 1990s, part of the problem? Do we point fingers at our last and current president? Have law professors stopped relying on solid casebooks such as Moskovitz's wonderfully well-organized Cases and Problems in Criminal Law? Maybe all of the above. Guantanamo, Zimmerman, and your jury trial rights may be just the beginning of a very hard end.

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Words of Wisdom

Posted in Criminal on Friday December 14 2012 @ 5:39pm

"It's a lot easier to outrun a knife than it is a speeding bullet."

-- Roger Groot

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Posted in Criminal on Thursday April 05 2012 @ 5:11am

We've said this already on our facebook page, but we'll say it here, for good measure: self defense is a defense.

Self defense is a defense to a charge that allows the defendant to justifiably use force just great enough to overcome the force used against him. Thus, one who is threatened by someone wielding a spork could not retaliate with an Uzi.

This is true in all cases. It matters not that the defendant is in a jurisdiction honoring the age-old castle doctrine, or Florida, which has expanded that doctrine to include any ground on which the defendant stands -- the stand your ground law. Both of these allow a person to defend oneself using force.

Note, though, that the Florida law (776.032) provides for immunity from criminal prosecution and civil action for justifiable use of force. Justifiable is determined by the law enforcement agency investigating the incident. It is the immunity, not the bulk of the law, that is an issue in the Treyvon Martin death. Self defense is a defense to a charge, not a shield from prosecution.

For further insight, from a retired prosecutor no less, please see Minnesota's Proposed Castle Doctrine Expansion Worse Than Florida's Shoot First, Thomas Weyandt, Minnesota Post (March 29, 2012).

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Plea Plea Me

Posted in Criminal on Friday March 23 2012 @ 6:50am

Kudos to the SCOTUS for using statistics in thinking about plea bargaining. While the numbers are probably not as pointy as one would like, it is abundantly clear that most criminal cases do not go to trial. While some statistics are fuzzy and ill-gotten, subject to morphing over time, this number has been firm and unbending for decades.

Because the pretrial may be all there is, the SCOTUS has determined that the right to effective counsel applies. Doug Berman of Sentencing Law & Policy asks: Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon? Could be.

Justice Scalia may be right when he says that plea-bargaining law may be the next trendy trend. But -- thank goodness! Plea bargaining, prolific as it is, has usually been practiced in the shadows, more art than science, more serendipitous than procedural. It was rarely written about, almost never studied (exception: Alaska, which did away with plea bargaining for a time and thus provided ripe ground for comparison). The bible of plea bargaining was written in 1981 -- the year MTV was born. Frye (though, we wish people with the last name of Frye would stop making important caselaw -- we will get all mixed up) and Lafler are welcome updates to the murky, yet prolific, practice of plea bargaining. That the Justices relied, in part, on established statistics, makes our day.

p.s. Apologies to Simple Justice for not reading the title of Scott's post before we wrote ours. Great minds, ya know?

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Posted in Criminal on Friday December 16 2011 @ 6:25am

More frightening than any mythological creatures are the myths that end up wrongfully convicting innocent people. In his book False Justice: Eight Myths that Convict the Innocent, former Ohio Attorney General Jim Petro lists the following dangerous myths:

  • 1. Everyone in prison claims innocence

  • Our system almost never convicts an innocent person
  • 3. Only the guilty confess

  • 4. Wrongful conviction is the result of innocent human error

  • 5. An eyewitness is the best testimony

  • 6. Conviction errors get corrected on appeal

  • 7. It dishonors a victim to question a conviction

  • 8. If the justice system has problems, the pros will fix them

To illustrate, Petro refers to a recent real-life example of a union supporter whose supervisor wanted revenge. An unsolved series of rape cases was the supervisor's ticket -- together, with a lying cop, the crime-free defendant was convicted and sentenced from 22-56 years. He has since been exonerated by University of Cincinnati law students. See UC Law Students Celebrate Overturned Conviction, Janice Morse, Cincinnati Enquirer (December 15, 2011).

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Death Declines

Posted in Criminal on Wednesday November 23 2011 @ 7:54am

Every year, inexplicably, the president of the United States pardons a turkey.

As holiday-friendly as this tradition is, what about actual people who face the death penalty? Since 1976, when the death penalty was re-established, 1277 people have been put to death in the U.S. But now, their numbers are dwindling, and not only in jurisdictions you'd expect.

Thanks to Carl Reynolds at CourTex, we learn that capital cases in Texas are declining, a lot. See Capital Punishment, Carl Reynolds, CourTex (October 13, 2011). Is this due to life without parole (LWOP)? No, because, as Carl notes, LWOP was not around until 2005, well after the trend began.

The savvy Grits for Breakfast gives this more attention, and poses some challenges to LWOP generally. See Texas Death Sentences Plummeted Duringi Bush, Perry Tenures, Grits for Breakfast (October 14, 2011).

And while it's difficult to ever compare Texas to Oregon, especially with regard to the death penalty, see Governor's Kitzhaber's statement establishing a moratorium: BREAKING: Governor Kitzhaber Issues Reprieve -- Calls for Action on Capital Punishment, DP9 (November 22, 2011). Maybe Oregon is simply following Texas's lead.

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Retro Activity

Posted in Criminal on Wednesday July 06 2011 @ 8:51pm

The 80s are over.

Sure, Lady Gaga makes us reminisce about old-school Madonna, and we saw a kid with a fade at a skate park last weekend. Sure, we had to flee a place of business when Hall and Oates came on the soundtrack. But for the most part, it's a new century.

How do we know? First, crack! Remember crack? It didn't go anywhere, but the violent turf wars of the 80s have settled down. And, in response to a few decades of pleading, the U.S. Sentencing Commission finally realized it, too, had a crack problem, and modified the guidelines. See this nifty resource page (which has the Berman Seal of Approval) if you want to know (much) more.

That's not all -- the guidelines are retroactive. Really. Starting November 1, 2011.

Guess what else? These budgetary times have made taxpayers less likely to support tough on crime policies, and see such policies as the expensive short-term solutions they really were. The true cost of corralling people, re-entry, and the gap in families are now being understood. The SCOTUS supports this path, too, mandating a reduction in California's prison population in Brown v. Plata.

We all know where Greed is good got us. We are smart enough to realize that only a very small segment of the population looks good with shoulder pads. And our approach to crime -- tempered by the problem-solving courts movement, lack of funding, and common sense -- is on a new path.

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Not Ready for Prime Time

Posted in Criminal on Tuesday July 05 2011 @ 8:01pm

It's a sad (?) fact that most of the legal world isn't very interesting! That doesn't stop us from blogging on about the lesser thrills of juror parking. Somebody has to, and it ain't CNN.

Meanwhile, the media has fallen flat twice (by our count) this week. Looking for excitement in the form of terrible moms who get tattooed and participate in wet t-shirt contests, or for lewd Frenchmen preying on hotel staff, these particular cases were blown up larger than life. Prosecutors, some of whom have an unnatural affinity for limelight, jumped in with all feet.

Back in the day we would speak with hundreds of media folks every year. The quickest way to get them to flee was to tell them the boring truth -- night courts aren't full of hijinks, they are merely a way for the court to help regular people to take care of business (such as a traffic ticket) at a more convenient time (say, 6:00 p.m.). Drug courts aren't much like Lohanic TV pitches (thank goodness for small favors). In courtroom reality, a team meets and notes the slow process of recovery, noting small victories (having a clean urine test or attending an AA meeting) or lapses (not), week after week.

As our friend and former co-worker Walt so nicely noted, The thing to remember about trials is that the jury or judge is not determining whether a person is guilty. The judge or jury is to determine whether the government proved its case beyond a reasonable doubt. Those last four words are key, and it's part of what made yesterday the Fourth of July, so worthy of celebration.

You want drama? Sex? Excitement? Watch the headlines. You want justice? Visit a courtroom.

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