Category Archives: federal criminal issues

It’s not like you knew you had that right, anyway.

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We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that's what the value of your rights are. Are you guilty enough? That's the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. "Well yes, this confession was obtained illegally, but he was really guilty, so it doesn't matter" and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer's word is as good as the defendant's. 2. Except when the lawyer speaking doesn't mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived. 5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries

 

 

Nullifying death

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Today, all nine Justices of the Supreme Court met to decide whether to continue to permit juries in capital cases that are inherently biased toward imposing a sentence of death, or to finally revisit a much-maligned and problematic practice of “death qualification” of juries.

In 1968, the Supreme Court announced a seemingly bright-line test for determining when the State could unilaterally prevent jurors from serving on a capital case (exercising a peremptory challenge): when those jurors stated that they were unequivocally opposed to the death penalty and could not impose a sentence of death in any circumstance. In Witherspoon v. Illinois, the Supreme Court held that the State could legally excuse jurors:

who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon, reaffirmed in Wainwright v. Witt, still rules the day. Death qualified juries are the norm and community members are regularly excluded based on their moral opposition to the death penalty. Continue reading →

A Fully Informed Jury: Two tales

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We here in the United States are particularly proud of our jury system of dispensing justice, touting it as “the best in the world” at every given opportunity: and yet think we are all acutely aware of the significant flaws that show no sign of ameliorating. Take, for instance, the role of the jury itself. A jury is supposed to be a representative cross-section of the defendant’s peers, chosen from those in his community or neighborhood, so that they may be able to relate to and understand the defendant’s actions, thus giving greater legitimacy to their finding of guilt or not-guilt. When’s the last time that really happened in your practice?

Juries also have another important role, as we so love to remind them during jury selection: they are the weighers of evidence. It is their job to determine if the State has met its burden of proof. They are to decide if a prosecution is successful beyond a reasonable doubt and whether the State has firmly convinced them that the individual accused has indeed committed the crime.

But juries are often kept in the dark. They are directly told that they are not to bother themselves with consequences – in fact, barring a few outliers, juries aren’t even told of what the consequences might be. Their job is simply to decide the facts and then blindly apply the law. They’ve become accountants, adding up the numbers and deciding if you’ve got a surplus or deficit. That’s not how it always used to be, though. In 1794, Supreme Court Chief Justice John Jay informed a jury as follows:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

John Adams said the following: Continue reading →

Forfeit what?

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Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here's the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”: Continue reading →

Should dead women tell some tales?

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Having had my egg for lunch, I spent the better part of the day attempting to untangle the evidentiary web that seems to have ensnared many following and participating in the Drew Peterson saga. Drew Peterson, for those of you who don’t know, was a sort of Black Widower: a man who left a trail of dead wives. A jury just found him guilty of murdering his third (?) ex-wife, while wearing matching outfits. The jurors were wearing matching outfits, not Peterson and his wife. Lacking physical evidence, the prosecution relied on statements made by both his third ex-wife (the decedent in the trial) and his fourth (who is also missing) to friends, family and clerics.

And this is where, as they say, the plot thickens. With help from these two fantastic posts at EvidenceProf and this equally detailed post by anonymous public defender “S”, the issue has become somewhat clear less murky.

So, let’s start at the very beginning:

The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay. Continue reading →

Cellphones and the 4th Amendment: REP

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As we move faster and deeper into the technology age, the law struggles to keep up with ever changing methods of communication and constant availability of modern day consumers. One thing the law has had to deal with over the last 10 years is just how “private” are cellphones and the data that can get gotten from them?

It’s one thing to say that the data on a phone is private and expected to be so – although if you don’t password protect you’re phone you’re an idiot – but what about the signal of the cellphone itself that lets you get reception and connect to the internet?

Law enforcement and cops have been using cell tower data to pinpoint the location of a cell phone (and by extension its user) for a few years now, but this was mostly done post-hoc, to prove that a particular individual was at a particular location at the time of the crime. I’m also fairly certain that prosecutors and cops have been getting warrants to track cell phones in order to locate an individual they are chasing.

But can all of this be done without a warrant? Is there a reasonable expectation of privacy in the location signal of your phone? Is this something that society today is prepared to accept? That one doesn’t generally expect someone to know where you are based on the contact your cellphone has (covertly and unbeknownst to you) with a cell phone tower and the cell phone company?

That’s what the 6th Circuit just said in a decision [PDF] released two days ago: that there is no reasonable expectation of privacy in that information and thus, no need to get a warrant in order to conduct surveillance. Not only does the Court seem to place much faith in the “well, he was a criminal, right, so screw his rights” doctrine, but also makes several false analogies to other, more traditional, no expectation of privacy scenarios:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

As that Cato post appropriately points out, reasonable expectation of privacy doesn’t mean what the 6th Circuit claims it means:

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

The decision also makes no mention of US v. Jones, issued by SCOTUS earlier this year, albeit that is a slightly different scenario. More telling, however, is that there is no mention of Kyllo. Further, as Orin Kerr points out, the technical mumbo-jumbo utilized by the Court is ridiculously hazy.

Decisions like these, in light of the fact that it was recently revealed that cell phone companies dealt with 1.3 MILLION requests for cell tower information from LEOs last year and the FBI’s reluctance to turn over new memos giving guidance on how to deal with electronic surveillance in light of Jones, make it an increasingly dangerous time for our privacy in this digital age.

Unless, of course, you’re one of those people who constantly tell the world where they are on Foursquare, Twitter and Facebook. In that case, you get what you deserve.

Keep Every American’s Digital Data for Submission to the Federal Government Without a Warrant Act of 2011.

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I’m only just getting to this, but it seems that the Federal Government (or at least some wingnut faction of it) is seeking to pass this atrocious bill forcing all ISPs (that’s internet companies like Comcast, Time Warner, AOL haha good one and whatever the hell it is you guys have everywhere but the Northeast) to keep records of all your internet activity for a period of 12 months.

For what? Child porn. To prosecute, not to view, you goddamn pervert.

Here‘s an EFF primer on the bill and a statement on the bill making it out of committee. The title of this post comes via Rep. Zoe Lofgren (D-CA), which I learned of in this post.

Here’s a Reason post on the subject, here’s one from Cato which gives us the alternate title “You Are All Criminals Act”. From another Cato piece:

It’s got everything: porn, children, the Internet. And it’s got everything: financial services providers dragooned into law enforcement, dataretention requirements heaped on Internet service providers, expanded “administrative subpoena” authority. (Administrative subpoenas are an improvisation to accommodate the massive power of the bureaucracy, and they’ve become another end-run around the Fourth Amendment. If it’s “administrative” it must be reasonable, goes the non-thinking…)

This isn’t a bill about child predation. It’s a bald-faced attack on privacy and limited government.

What with all the BART nonsense this past week (but see and but but see) and the news that the NYPD will now be using Twitter and Facebook to monitor crime (giving a whole new meaning to the phrase “the NYPD is now following you”), one begins to wonder how far, not if, we’ve slipped down the rabbit hole.