Constitution Day Jumpstart

It’s 2012. Do you know where your Constitution is?

 

It’s September 17, which means it is also Constitution Day: the day on which the delegates to the Constitutional Convention met in Philadelphia in 1787 to sign the document that would enumerate, in general, those rights and freedoms that we purport to hold so dear. With each passing year, the Constitution means less and has less power and effect and thus, the importance of understanding it and its intent and its protections grows stronger. Here are some stories from the weekend that you should read with the Constitution in mind:

  • The Ninth Circuit hears re-argument en banc in a challenge to California’s DNA upon arrest law. [My post on the original 9th Circuit decision.]
  • Popehat has this deliciously titled post about the First Amendment, damages awards and their chilling effect on speech: Schadenfreude Is Not A Free Speech Value.
  • A 13-year old Florida boy is facing murder and sexual assault charges as an adult, exposing him to life in prison. He’s thirteen. Think of the children.
  • EvidenceProf continues his analysis of Giles, forfeiture by wrongdoing and transferred intent, analyzing a case currently pending in the Oregon Supreme Court.
  • The Atlantic has this interesting article questioning the continued importance of Justice Scalia.
  • There’s also this lengthy, powerful piece on Terrance Williams’ clemency request in Pennsylvania. Make sure you read it in its entirety. For the TL;DR version, here‘s a NYT piece.
  • Prosecutors across the country get their hands dirty by joining with scam debt collectors to threaten people. Scott Greenfield has more.
  • This post at The Agitator uses the example of a West Virginia teacher, acquitted of sexual assault charges after a retrial, to question prosecutorial immunity and wonder how the woman can piece her life back together.
  • Ken Lammers gives us all tips on how to put together the perfect opening statement.
  • Finally, in the WTF news story of the day, Facebook takes down the City of New Haven’s Facebook page because Facebook.

Now go say a silent prayer to your favorite Amendment.

Forfeit what?

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”:

Judge finds Reid method oppressive

In other news, scientist finds that the sun is really, really, hot and sports commentator opines that in order to win you have to score more than the opponent. Honestly, I wish the headline of this post, which is a version of the headline of this news story, was an Onion article. It’s not. Also, this is from Canada, so your mileage may vary.

The Reid method, for those who don’t know, is a classic police interrogation interview technique which is used to wrangle and coerce confessions from suspects. A simple Google search reveals much about the Reid technique, which you should peruse at your own leisure, preferably after you’re done reading this post. But since I know you’re lazy, here’s a link to the technique’s “Nine Steps“. You can see how coercive and insidious they are.

The Reid technique, despite its flaws and criticism about its tendency to produce false confessions, has been the standard method of conducting interviews across North America for near 20 years now. It’s routinely used – and defended – by law enforcement organizations. Courts have upheld the use of these coercive tactics time and again.

So leave it to a Canadian judge to unequivocally declare that this technique is improper and dangerous. In Regina v. Chapple [PDF], the Honorable M.C. Dinkle. The judge does a wonderful job of outlining the tactics employed by the police officers in this case:

Dinkel said Calgary police subjected Christa Lynn Chapple to an eight-hour interview and interrogation that “had all the appearances of a desperate investigative team that was bent on extracting a confession at any cost.”

Even though the accused asserted at least 24 times that she wanted to remain silent, Detective Karla Malsam-Dudar disregarded that right, continuing to prolong the interview with lengthy monologues, constant interruptions and persistent questioning.

The accused’s free will was overborne to the point where she told police what they wanted to hear, the judge concluded.

But more notable than the specific facts of this case was the overall condemnation of the technique itself, which the judge called “a guilt presumptive technique” designed to “extract confessions from the accused”. He further excoriates:

Innocence is not an option with the  Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with  the interrogators who misuse the technique and not the technique itself. They may also say that  the technique is intended to be used only in circumstances where the police are sure of an  accused’s guilt. These factors are of little solace to me and of no assistance to those innocent  individuals who have given false confessions over the years at the hands of Reid Technique  interrogators.

The judge notes, with some disappointment, that even years after other judges first began to question the use of this technique, it is still widely in service today. False confessions were recorded in approximately 25% of the exonerations cataloged by the Innocence Project. The dangers of using such a coercive technique should be obvious to those whose stated goal is the pursuit of truth and justice, yet more often than not, it is used to achieve precisely the opposite result and serves as nothing more than confirmation of their bias and tunnel-vision. The goal isn’t the truth, it’s an arrest, a confession and a conviction, truth be damned.

 

H/T: Lisa Steele for the pointer and The Trial Warrior for providing a link to the opinion.

Think of the children

The classic strawman, the underlying justification for any legislation appearing to be tough on crime, the go-to argument for riling up mobs in your favor is to implore people to, please, think of the children.

The “children” at issue are not just any children: they’re your children and mine, those sweet innocent babes who just want to eat ice cream and roll in the mud and take cute pictures with the family dog. Those naive children whom we must protect at all costs from the dangerous monsters that lurk around the corner and wait in shadows. Unless, of course, these children commit crimes themselves, in which case we do think of them: we think of them as juveniles. One day, they’re the future of the nation, the next they’re shackled in the back of a prison van, drenched in their newly acquired status as irredeemable delinquents, the scourge of society.

Juveniles have long been the forgotten sector of the criminal justice system. Practicing in juvenile court is barely a step above practicing in family court. Representing them is akin to being a social worker and no self-respecting defense lawyer voluntarily wants to go into juvenile court and looks down on those who do. Until now. After the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, the plight of juvenile defendants is finally seeing the light of day and taking center stage in a long-overdue discussion about just what, exactly, we are doing to our children. These two cases are notable not only for their respective holdings, but also for mainstreaming the scientific consensus on the development of the adolescent brain.

They’ve caused us to re-examine our treatment of these damaged, troubled 14, 15, 16 and 17 year olds and have shone a spotlight on the ugly legislation we have in our states that mistreats these children.

5 ways the iPhone 5 will make you a better lawyer

Can you feel the warm glow emanating? CAN YOU?

Apple dropped some much expected news today that it will be releasing its latest version of the GodPhone next week, humbly titled the iPhone 5. If, like me, you’re rushing to buy it and figure out ways it will change your life and your legal practice, let me count them for you:

1. The screen will be larger. In fact, half an inch larger, which, we all know, makes a huge difference. Now you won’t have to squint at the tiny text in a clumsy, awkward way, letting everyone know that you’re looking at your phone while in court. You can do it stealthily while pretending to listen to whatever the judge is droning on about. Clients will be impressed at your attention giving skills.

2. It comes with a new-built in BumpForLawyers App, which allows you to transfer documents, motions and thoughts directly to the judge’s iPhone, minimizing the need to speak or articulate anything.

3. Siri is now schooled in all the evidentiary rules and your state statutes, so you can quickly ask “How should I object to this question?” and she will tell you the appropriate answer. In fact, you should just let Siri object for you; she’s far more sonorous than you ever will be.

4. The iPhone 5 is now equipped with EndlessZoom, a nifty tool that lets you zoom into pictures to infinity and has such useful features as “enpixelate” and “reverse the view” which let you fully and effectively explore a crime scene as if you were there! Discover hidden pieces of evidence, see the real perpetrator’s reflection in a toenail and splice DNA strands on the fly. It also provides you with handy catchphrases to sprinkle throughout your examination. David Caruso glasses are extra. You’re sure to win your trials and maybe get a few phone numbers in the process.

5. It won’t.

[Image shamelessly stolen from the Washington Post website, which I presume took it from Apple or someone covering the event.]

Courtroom reality

Tonight, National Geographic Channel, which, I’m told, has long abandoned any pretense of having to do with geography and has wholeheartedly embraced the quasi-reality of crime and prison shows, is airing a half-hour episode of a new project titled “Criminal Defense: And justice for all” (note that the title makes no pretensions of “equal” justice). There is a second episode set to air tomorrow night, I think. The show is getting a sort of trial and if these episodes garner enough interest, they might order a full run. Whatever.

The show follows public defenders at the World Famous© Brooklyn Legal Aid as they represent clients during the course of their humdrum, everyday routine while doing things like climbing ladders at crime scenes to prove that the cops are lying. We all do that, right? Whether this show accurately captures the life of a public defender and the day-to-day workings remains to be seen.

Real-life crime shows have taken off and captured the public’s “imagination” because they allow us to: 1) not think; 2) pretend we’re better than everyone else; 3) laugh at the misfortune of others and 4) not think. But these prosecution and law-and-order oriented shows are easy to make and easier to market. They’re black and white and, increasingly, the American populace seems to like things to only be black or white. A show from the defense perspective necessarily brings with it nuance and challenges the viewer to be understanding and compassionate, which is why they don’t garner much success despite being fronted by the ridiculously handsome Mark-Paul Gosselaar. And it makes sense, when a pro-prosecution show can generate this:

The new criminal justice experts: the public

The criminal justice system is made up of several, mostly unequal parts. At the top of the food chain sit the prosecutors, lording over all that they survey, with supreme control over the futures of thousands of individuals. Then come the judges, who are increasingly former prosecutors who echo the demands of the current prosecutors. Lagging behind – a long way behind – are criminal defense attorneys, whose roles have been sidelined to bleating and begging for a break here and a break there. We, the CDLs, are fast becoming used car salesmen. The defendant is somewhere there, in the mix, usually an unseen and amorphous blip on the radar on the horizon, hardly ever a thought in the negotiating process.

But there are two others who, from behind the scenes, feed into and subconsciously manipulate a once well-regarded (even if only by those who were a part of and beholden to it) justice system: the ill-informed general public and the media who control their puppet strings by refusing to provide any measure of nuance and education in their sensationalist stories about every case that happens to cross the docket (my previous media diatribe here).

(Former) Judge Nancy Gertner, writing for WBUR, makes a compelling argument that the media irresponsibility is much to blame for the current state of affairs in the justice system:

A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We’ve all seen it: there is almost a formulaic nature to the reporting of criminal cases in the “news”: a massive headline when someone is arrested for a crime with information taken mainly from the arrest warrants, with little to no mention of the range of sentences or a critical view of the facts as presented by police.

[This, on the other hand, sets up an interesting conflict: people seem increasingly suspicious of police activity as a whole and are cognizant of the creeping police state in general, yet blindly buy and accept whatever accusations are reported in individual, specific cases. I’m sure there’s a term for it, I just can’t seem to remember it.]