by Kanya Bennett, Director of Policy Development and Programming at the American Constitution Society, Angelyn Frazer, State Legislative Affairs Director at the National Association of Criminal Defense Lawyers, and Nkechi Taifa, Senior Policy Analyst at the Open Society Foundations
In 1989, five African American and Latino boys were wrongly convicted of a heinous crime committed in New York City’s Central Park. Filmmakers Ken Burns, Sarah Burns, and David McMahon document their story in The Central Park Five. As PBS describes, The Central Park Five documentary “raises important questions about race and class, the failings of our criminal justice system, legal protections for vulnerable juveniles, and basic human rights.”
The Central Park Five featured our criminal justice system at its very worst. The police, with great help from the media, made vulnerable juveniles of color the poster children for violent criminal activities or what they coined a “wilding,” a narrative they held on to even when the evidence suggested another story. Prosecutors played detectives and advanced their case against the boys using this flimsy support. And a lawyer whose job it was to poke holes in the district attorney’s assertions allegedly fell asleep, almost every day, during trial.
Litigation reform is bandied about in an inevitable way. The narrative supporting such reform says that corporations are coerced into settling frivolous claims because the cost of litigating in federal court is so high. Further, the story goes, corporations do not want to be in the United States because the litigation risks are too much. This narrative of excessive cost and abuse is used to justify various litigation reforms, ranging from tort reform to attorney sanctions. The most recent entrant into the reform fray comes from the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States. This rulemaking body has proposed amendments to the Federal Rules of Civil Procedure. These amendments would make it easier for parties to resist producing documents, provide greater protection to parties who fail to preserve key information, and limit the number of ways parties can request information from one another. By limiting access to information in this way, these proposed amendments to the discovery rules promise to lower litigation costs.
The problem with this narrative and the attendant reforms is that they are inaccurate. First, discovery costs are generally not too high in comparison to the stakes parties have in litigation. Second, the argument that the proposed restrictions on discovery are justified undervalues the benefit of civil litigation.
According due process of the law to death row inmates in Missouri is apparently a difficult constitutional mandate to embrace, at least for some state attorneys charged with carrying out death penalty sentences.
In a piece for The Atlantic, Andrew Cohen detailed the execution of Herbert Smulls earlier this year, where state officials ignored repeated requests by defense attorneys to wait for the appeals process to expire before executing Smulls. The defense attorneys’ efforts were futile. As Cohen reports the state initiated the “lethal injection protocols” before the U.S. Supreme Court took action on Smulls’ final appeal for a stay of execution. “Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him,” Cohen reported.
Rust-Tierney’s concern is well grounded. As Cohen notes, U.S. Court of Appeals for the Eighth Circuit Judge Kermit Bye, as well as other federal court judges, have previously raised concerns about Missouri’s history of carrying out the death penalty.
In late December, Judge Bye lodged a stinging dissent to an amended order in a case involving Missouri’s execution of Allen L. Nicklasson. A petition for the entire Eight Circuit to consider a stay of Nicklasson’s execution was declared moot, since the litigant, Nicklasson, had already been executed.
Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released a statement praising the Senate Judiciary Committee for its favorable report of Debo Adegbile to be the Assistant Attorney General in the Department of Justice's Civil Rights Division. In the statement, Ifill says Adegbile “has precisely the type of broad civil rights experience that is required at this pivotal moment in our country.”
Last summer, the U.S. Supreme Court struck down a key provision of the Voting Rights Act that required federal review of voting laws in states with a history of voter discrimination. Adam Ragusea of NPR reports from Macon, Georgia on the repercussions felt by the city’s minority voters.
Human Rights Watch explores the legal and ethical implications of a growing trend among probation companies to “act more like abusive debt collectors than probation officers.”
by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act. As Iqbal noted:
“The Court held the plaintiffs’ complaint deficient under Rule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.”
The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”