• November 24, 2014
    Too Big to Jail
    How Prosecutors Compromise with Corporations
    Brandon L. Garrett

    by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    “He’s a grown man today, he was just a boy back then,” said Ricky Jackson upon his release from prison last week.  “I don’t hate him.” Jackson spent 39 years behind bars, more than any other person exonerated in the U.S., according to the National Registry of Exonerations. Jackson was speaking of the 12 year-old who had identified him and two others as murderers, and whose testimony in 1975 sent him to Ohio’s death row. Last week, the eyewitness admitted his testimony was “all lies.” There was no other evidence in this case: no forensic evidence, physical evidence, or other witnesses.  The exoneration highlights just how malleable eyewitness testimony can be, and how important it is to get it right. 

    This Fall, the National Academy of Sciences published an important report “Identifying the Culprit: Assessing Eyewitness Identification.” I was a member of the committee that produced the report. The report evaluates decades of research on eyewitness memory and it details scientific procedures that can help to prevent error. 

    Those recommended procedures were not used in Jackson’s case—far from it.  The 12 year-old, named Eddie Vernon, told police he saw the murder of a storeowner by three people: Jackson, and two brothers, Ronnie and Wiley Bridgeman. Vernon was unable to identify the suspects from photos. That alone should have been a red flag. Later, a detective showed Vernon a lineup of seven men, which included Jackson. He could not identify anyone. So he was “taken out of the room,” according to an appeals court, where he “told the policemen that he had not said anything at first because he had been afraid.” Now he identified Jackson. But he did not change his mind on his own. Police apparently shouted and threatened to charge him with perjury if he did not identify Jackson. Last week, when Jackson was exonerated, Vernon told the judge, “Do you really think as a 12-year old I could stand up to those detectives screaming in my face?”

    Far more subtle forms of suggestion can influence an eyewitness. As I have described in a book, DNA testing has exonerated scores of people in cases where eyewitnesses were not coerced, but rather police used outdated and error-prone identification procedures. The National Academy of Sciences report recommends identifications be conducted “blind” or “blinded,” just like an experiment, so the person running the procedure cannot inadvertently signal the answer. Standard instructions should make clear that the suspect may or may not be present in the lineup. The eyewitness should be asked to describe confidence upon making an identification. Procedures should be videotaped so that there is a clear record of what transpired. Obviously, the procedures described in Jackson’s case were brutal and nothing resembling scientific practices.

    Why didn’t judges release Jackson years ago? The National Academy of Sciences report highlights how judges should be far more sensitive to research on eyewitness memory. Back when Jackson was convicted, the judges seemed totally unaware there was anything wrong with a 12 year-old identifying three murder suspects, when previously he could not. The Supreme Court of Ohio in 1978 said evidence against Jackson “was not so slight or of so little probative value” that a jury could not convict him. Why? There was an eyewitness. And Jackson’s lawyer was appointed only four days before this death penalty trial. His lawyer complained he had “virtually no do independent investigation, talk to the prosecution witness, Edward Vernon, or determine a trial strategy.” Yet, the trial judge saw no problem because after all, this was a case where “the evidence was highly credible.” The National Academy of Sciences report highlights the need for pretrial investigation of eyewitness evidence, careful judicial inquiry, and use of expert witnesses to explain the science to the jury.

    Should any criminal case be based solely on the memory of an eyewitness, much less a death penalty case, when unsound identification procedures are used?  In response to wrongful convictions and scientific research, a number of states have adopted improved lineup procedures. But as the National Academy of Sciences report describes, many jurisdictions have not done so. It is a sign of changing times that the prosecutors, who the Ohio Innocence Project called heroes, readily agreed it was “obvious” that Jackson should be exonerated, with the eyewitness recanting and discredited.  It is equally obvious that eyewitness identification testimony must be put on a firm scientific footing.  

  • November 24, 2014

    by Caroline Cox

    In The New York TimesThe Editorial Board argues against current jurisprudence that could allow Texas to excute a mentally ill man. 

    Kathleen Sharp of Salon argues that post-Citizens United, the United States needs donor ID laws.

    In The Nation, Mychal Denzel Smith writes that protester suppression is happening in Ferguson even without a militarized police force.

    The blog for the Brennan Center for Justice features stories from the 2014 midterm elections that look at how voters were unfairly impacted by new voting restrictions.

    Joseph Tafani writes in the Los Angeles Times that judicial elections are getting even more political with the growth of campaign spending and references the ACS "Skewed Justice" report.

    In The Washington Post, Robert Barnes previews the upcoming oral argument for Elonis v. United States, a free speech case that considers how to treat threats on social media.

  • November 22, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    The debate over President Obama’s action on immigration has raised a difficult and enduring issue: the nature and scope of the executive’s prosecutorial, or perhaps more accurately, enforcement discretion. The existence of such discretion is inevitable and, in many circumstances, desirable. Consider the familiar example of the enforcement of speed limits.  Anyone who travels the nation’s highways knows that law enforcement officers do not pull over drivers who slightly exceed the posted speed limit. We would expect a driver to be upset to get a ticket for going 56 mph in 55 mph zone. To some extent this practice of ignoring slight violations of speeding laws results from scarce enforcement resources. While a police officer is occupied with issuing a ticket to a speeder, that officer is unable to pull over other speeders.  An officer who tickets the hypothetical driver for going 56 mph risks allowing a dangerous speeder, say someone going 90 mph, to evade detection. This risk wouldn’t exist if there were an unlimited number of police officers at the roadside able to take over while one officer pulls over the 56 mph driver.  Given the existence of scarce enforcement resources, police officers have concluded that refraining from enforcing speed limits against slight violators actually better promotes the goal of the speed limit – highway safety.

    On the other hand, it is easy to see how this discretion might be abused. The power could be used to undermine the force of existing laws and thus, in effect, to repeal or revise those laws.  Imagine, for example, the President orders the Social Security Administration to cease processing social security payments because doing so would conserve scarce federal resources.  This order would be clearly illegal.  It would violate individual rights (for qualified persons to receive the payments) and an affirmative statutory command to the executive branch (to make the payments). 

    What are we to do when the exercise of discretion does not fall at one of these extremes?  This is a truly important issue.  At its heart, the issue involves the proper relationship between the executive and legislative branches.  The conundrum is expressed in the Constitution’s Take Care Clause (which directs that the President “shall take Care that the Laws be faithfully executed”).  This Clause simultaneously imposes a duty on and recognizes power in the President.  On the one hand, the Clause forbids the President to refuse to enforce the laws (I do not mean to address the context where statutes conflict with one another or with the Constitution).  On the other hand, the idea of “faithful execution” must include some room for the exercise of discretion to determine what course will faithfully execute the laws.  This theoretical conundrum has real practical resonance.  Conservatives today see the President flouting the recent elections and pursuing a regulatory policy that is not only inconsistent with those results but represents the sort of broad policymaking that one would ordinarily expect to see in a statute, not in unilateral executive action.  The President, on this view, is usurping the legislative power.  This is not a frivolous concern.  Flipping the political valence, consider a future, conservative President taking the position that he or she is clothed with discretion to refrain from prosecuting violations of certain federal firearms laws or environmental protections.  Many of those expressing approval of President Obama’s order would be outraged at the usurpation of a President who unilaterally re-writes the law of environmental protection or firearms safety.

  • November 21, 2014

    by Rebekah DeHaven

    This week, the Senate voted to confirm eight U.S. District Court nominees. On Tuesday, November 18, the Senate confirmed three nominees:

    Leslie Abrams, nominated to the U.S. District Court for the Middle District of Georgia, by a vote of 100-0;

    Eleanor Ross, nominated to the U.S. District Court for the Northern District of Georgia, by voice votes; and

    Mark Cohen, nominated to the U.S. District Court for the Northern District of Georgia, by voice votes.

    Later in the week, after invoking cloture, the Senate confirmed an additional five nominees:

    Pamela Pepper, nominated to the U.S. District Court for the Eastern District of Wisconsin, by a vote of 95-0;

    Brenda Sannes, nominated to the U.S. District Court for the Northern District of New York, by a vote of 96-0;

    Madeline Arleo, nominated to the U.S. District Court for the District of New Jersey, by voice vote;

    Wendy Beetlestone, nominated to the U.S. District Court for the Eastern District of Pennsylvania, by voice vote; and

    Victor Bolden, nominated to the U.S. District Court for the District of Connecticut, by a vote of 49-46.

  • November 21, 2014
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.