Monday Morning Jumpstart

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Stuff for you to read while you “work” on a Monday morning:

  1. A comparison of the Democrats’ platform on civil liberties between 2008 and 2012. Spoiler: they’ve joined the GOP in not giving a shit about it.
  2. The FBI is launching a $1 billion facial recognition program. See 1. above.
  3. A new paper on the mandatory meaning of Miller.
  4. Gamso has an expert takedown.
  5. Ken at Popehat is back in action with an excellent post challenging this Gawker piece on pedophilia as a brain abnormality and the reactions to it.
  6. A terrifying story on the disciplining of school children.
  7. The Juvenile Justice Information Exchange has this post on the slowly widening social gap in our society and the impact it has on our ability to understand and care for those who have less.
  8. Should states help death row inmates donate their organs? Gamso (again) has more.

Should get you through the morning coffee break. Then you’re on your own.

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 →

Things to read

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On a Thursday evening:

  1. Another man who spent time on death row (this time in Ohio) was exonerated after a judge found that prosecutors withheld evidence from his attorneys that could have exonerated him.
  2. TL;DR: Lawyer submits a graphic novel amicus brief [PDF] after the judge gives him only 5 pages (via the new and local Federal Prisons Blog authored by friend-of-this-blog-although-he-doesn’t-know-it Todd Bussert). The ABA has more here.
  3. The Oregon Federal Defenders office has released its latest edition of ‘Developments in Federal Search and Seizure Law‘ [PDF], which is a must read primer or refresher for us practitioners.
  4. The Supreme Court’s new agent is helping the Court get better, higher profile cases.
  5. A wonderful opinion piece in the NYT titled ‘The Living Death of Solitary Confinement’.
  6. Chandra Bozelko, an inmate at CT’s prison for women, has this lengthy piece at the New Haven Independent on life and love on the inside.
  7. Did you know that there’s a statute that allows school bus drivers to write down your license plate number and then the cops can send you a summons? Neither did I.
  8. Yes, Dorothy, these are the idiots who will decide whether you spend the rest of your life behind bars.
  9. 8 judicial opinions citing to Star Trek.

The more you know…

State has no guidelines or policies for seeking death

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The first day of the ‘racial and geographic disparity in the death penalty‘ trial ended pretty abruptly today, after the testimony of just the Chief State’s Attorney Kevin Kane. After being peppered with questions about his time as the supervisor of the New London State’s Attorney’s Office and his decisions to seek the death penalty in some cases and not in others, both sides apparently agreed to forgo questioning of all the other 13 chief prosecutors and some former ones in exchange for a stipulation.

While I’m not particularly clear on whether I’m in agreement over forgoing the questioning of the prosecutors and subjecting their decision making to scrutiny, the stipulation gained is a pretty damning one:

That from 1973 until today no written or oral guidelines or policies have been used by states attorneys or chief states attorneys to make decisions on an initial charge, whether to seek the death penalty or whether to reduce a charge.

There is no oversight by chief states attorney over decisions make by states attorneys on whether to seek the death penalty.

Each states attorney makes decisions on charging capital felony and seeking death based on criteria that is appropriate in their case.

Essentially, each judicial district is an island unto itself and each chief prosecutor makes the decision to seek the death penalty based on his or her own view of the aggravating and mitigating factors and his own personal opinion as to the seriousness of the case. While Attorney Kane, as I predicted yesterday, maintained that his decisions were based on the statute itself and factors contained therein, the bottom line remains inescapably that the decision to seek the death penalty is entirely arbitrary. Continue reading →

Racial disparity to finally take center stage

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Starting tomorrow, the geographically and racially arbitrary application of Connecticut’s death penalty will be put on trial in a makeshift courtroom in the state’s only maximum security prison, which, in a twist of unintended irony, is called Northern.

The disparity lawsuit, which I’ve written about for years now, will focus on whether the decision to seek the death penalty in Connecticut courts is influenced by race (duh) and geography (hello, Waterbury). Not surprisingly, this will be a battle of experts: John Donohue, hired by the Office of the Chief Public Defender and some other guy hired by the Office of the Chief State’s Attorney. Here‘s [PDF] the latest version of the study prepared by Donohue and read this prior post for a summary. The New York times created this nifty graphic summarizing the findings of the study:

The trial is also expected to feature the testimony of various State’s Attorneys from across the state as they try to explain their justifications for seeking death in one case as opposed to life in another. There will be mountains of obfuscation and chest-thumping and people will get their backs up, as they are wont to do when their decisions are questioned in the light of racial biases. There will be plenty of explanations provided for choosing one case over the other, perhaps an appeal to the specific emotional tugs of one case or the personal horror of another and lots of indignation and calls to the prosecutors’ sense of duty and justice. And that’s all well and good, but them facts are the facts and it seems that – intentional or otherwise – a systemic bias does exist in this state: you’re more likely to have the death penalty sought against you if your victim is a white female and certainly more so if the crime you commit happens to be within the geographic boundaries of the Judicial District of Waterbury.

No amount of hand-waving or imploring that these are “just good folks conscientiously applying the law” should be allowed to overshadow and hide the fact that the system punishes those whose ethnic status is anything other than “white”.

It is important to remember that a bias need not be explicit: that there need not be an explicit preference for one gender or one race over another. Rather, some biases are insidious and work subconsciously and those, after all, are the most dangerous biases of all.

What this trial is not about, however, is whether the death penalty repeal in Connecticut is to be applied retroactively. That was explicitly rejected by the judge as an additional claim in this lawsuit because goddammit it’s dragged on long enough already or something. Not like that’s probably the most important issue that our courts are going to have to address in the near future or anything. But judicial efficiency and all that.

That the death penalty is sought – and applied – in an arbitrary fashion should really come as no surprise to anyone following this area of jurisprudence with just a little bit of brain power, but will the law – which is always notoriously last in these situations – finally catch up? We’ll find out starting tomorrow.

No semantics when it comes to life

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Life, in America, means different things to different people. Life can start now or 9 months from now. In some states, like CT, life used to mean life, but now it means 60 years. Unless you’re convicted of a capital felony, in which case life means life.

And life is, according to the Supreme Court of the United States, no longer an option for juveniles convicted of non-homicides (and cannot be the only option for juveniles convicted of homicide). That’s all well and simple when the sentence is simply “life” in a legal sense, but what if the sentence is life in a real sense? Are those juveniles somehow different? What if the effect of the sentence is that a juvenile will spend the rest of his natural life behind bars without any meaningful review? What if the sentence is 110 years? Or 220? Isn’t that the same as “life”? Is that juvenile just as condemned to die in prison as the one sentenced to “life”?

According to the California Supreme Court, it is. In a(n?) unanimous decision issued today [PDF], the CA Supreme Court – correctly, in my opinion – vacates the 110-year sentence of a juvenile convicted of a non-homicide crime as a violation of the ban against cruel and unusual punishments.

Relying on the all-too important distinction drawn by SCOTUS in Graham that juveniles are different:

The high court stated that nonhomicide crimes differ from homicide crimes in a “moral sense” and that a juvenile nonhomicide offender has a “twice diminished moral culpability” as opposed to an adult convicted of murder — both because of his crime and because of his undeveloped moral sense.  (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].)  The court relied on studies showing that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.  [Citations.]  Juveniles are [also] more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character? than are the actions of adults.”  (Id. at p. ___ [130 S.Ct. at p. 2026],  quoting Roper v. Simmons (2005) 543 U.S. 551, 570.)  No legitimate penological interest, the court concluded, justifies a life without parole sentence for juvenile nonhomicide offenders.  (Id. at p. ___ [130 S.Ct. at p. 2030].)

the CA Supreme Court mandates only that juvenile offenders be given a meaningful opportunity to secure their release, not that their release must be guaranteed. This rationale isn’t limited to parole-ineligible defendants. Indeed, the defendant in today’s opinion is eligible for release on parole, except that the eligibility date won’t come until he’s served 100 years. In other words, never. That’s not a meaningful opportunity.

If one accepts, as the general scientific community does, that the development of the adolescent mind continues until one turns roughly 25, then it is clear to see why this decision and those like it are the right way to proceed. We all change and grow as we age, acquiring new experiences that shape our view of the world and show us the consequences of our actions. We are evolving, in a sense, into hopefully better, more responsible and socially conscious human beings. We aren’t the kids that we were at 16 and we won’t be who we are now when we turn 65. To punish someone of that tender an age and of lesser development for the rest of their lives is cruel. Will the defendant at 50 know the 16 year old who committed the crime? Will he like him? Who are we continuing to punish? I’m not saying that there needs to be a maximum penalty for juveniles that will ensure that they are always released from prison before their death, but rather that society takes another look at these half-cooked humans from time to time to see if they’ve ripened to the point that they can safely be let out again.

And shouldn’t the logic and rationale of Graham and Miller apply not only to mandatory maximums and astronomical sentences but also to mandatory minimums? By applying min-man sentences to juveniles who were 14 or 16 at the time of the commission of their crimes, aren’t we, in essence, doing that very thing which Graham warned against? That mandatory sentences are “particularly harsh for a juvenile offender who will on average serve more years and a greater percentage of his life in prison than an adult offender”? Because what is a mandatory minimum sentence if not a broad brush that refuses to take into account the particular nuances of an individual juvenile? And what of those juveniles that are treated as adults and thus exposed to harsher sentences? Aren’t we drawing arbitrary lines between those who will be treated as adults and those who won’t? Some states set the minimum age for transfer to adult court at 16, many others at 14 and yet others at 13. How is that not cruel?

Yes, these are children who have committed horrible crimes. Yes, these are children who’ve hurt many people. Yes, these are children who deserve some form of punishment and correction. But they’re still children. Isn’t it time we started thinking about the children?

 

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.