Access to Justice

  • August 5, 2013
    Guest Post

    by Brandon L. Garrett. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, forensic science, and the law. Below, he outlines three recent Supreme Court rulings whose importance has been overshadowed by the term’s several high profile and historic decisions. This piece is cross-posted on the Harvard University Press Blog.

    With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

    First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. In McQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

  • August 2, 2013
    Guest Post
    Harry Baumgarten is a Juris Doctor and Master of Public Policy Candidate at Georgetown University where he serves as the ACS Chapter President. He also currently serves as a summer law clerk at Kohn, Kohn & Colapinto, LLP and the National Whistleblowers Center.
     
    If the debate over Bradley Manning and Edward Snowden has taught us anything, it is that the term whistleblower still carries with it undeserved negative connotations of greed, spite, narcissism and disloyalty. Yet, nothing could be further from the truth. Instead, whistleblowers are by and large highly principled individuals with an undying loyalty to the truth and public welfare— frequently at great personal cost.
     
    President Obama acknowledged as much in 2009, stating that, “[o]ften the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and speaking out.” Such was the case for FBI whistleblower Fred Whitehurst who, while serving as head of the FBI crime labs, alerted the public to widespread evidence contamination that contributed to the wrongful conviction of an untold amount of people and the complete perversion of justice. The case of Fred Whitehurst reveals that for a society based upon the rule of law and public accountability, nothing is nobler than lawfully reporting violations of the public trust. This is and has always been a fundamental precept of our national ethos.
  • July 25, 2013
    Guest Post

    by Brian Korpics, Law Fellow at the Environmental Law Institute

    For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government. Fee awards are available only in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was “substantially justified.”The law is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections: it promotes public involvement in laws such as the National Environmental Policy Act, Clean Air Act and Clean Water Act. EAJA also helps deter government misconduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights. The lawhas generally enjoyed bipartisan support since its enactment in 1980.

  • July 3, 2013
    Guest Post

    by Professor Anthony F. Renzo. Professor Renzo is teaching Constitutional Rights at the University of New Mexico School of Law.

    The close of the latest term of the Roberts Court provided more evidence of the conservative majority’s interest in protecting corporate America and government officials from being held accountable for violating the rights of everyday Americans. This includes hostility to challenges to abusive and unconstitutional actions by the federal government in its perpetual war on terror and the massive spying network that this war has spawned.

    The prime example from the latest term is the high court’s opinion in Clapper v. Amnesty International, which slammed the courthouse doors on a challenge to the broad and unchecked spying powers authorized by Congress in the 2008 Amendment to the Foreign Intelligence Surveillance Act (FISA)(50 U.S.C. § 1881a.)  That Amendment, §1881a, vastly expands the government’s electronic surveillance powers by authorizing sweeping wiretaps even if the targets are not foreign agents or linked directly to terrorism. These powers include dragnet type surveillance operations of large categories of phone or email addresses that are not limited to any one individual or any particular place. While the statute limits targets to “non-U.S. persons,” the private conversations of those targets with American citizens and residents are not excluded from its scope. In any event, to the extent the statute imposes any meaningful limitations on the scope of the surveillance it authorizes, these limitations do not have the force of law because §1881a eliminates the requirement of a judicial warrant based on individualized probable cause. In effect, §1881a  strips the FISA Court of its checking power, replacing independent judicial review with a certification process that effectively makes the assertions of the Attorney General and the Director of National Intelligence conclusive evidence of the legality of the Executive’s own spying operations with no meaningful judicial oversight or constitutional scrutiny.

  • July 2, 2013

    by Jeremy Leaming

    Senate Republicans’ agenda of delaying or scuttling judicial nominations has had a particularly corrosive impact on the U.S. District Courts where there are currently 65 vacancies. A July 2 report from the Brennan Center for Justice reveals the large number of vacancies has stayed consistent for five consecutive years for the first time in 20 years.

    Brennan Center Counsel Alicia Bannon in a statement about the report said, “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The president and the Senate must find a way to fill these crucial seats. The report, authored by Bannon, also finds that “average caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.”

    The larger caseloads are hampering the ability of district courts nationwide to dispense justice, but are having, the report says, an even greater burden on districts where judicial emergencies exist. “Analysis shows that judicial emergencies – a designation of districts with an acute need for judges – have been higher in 2010-2012 than at any other point since 2002,” the Brennan Center notes.

    The report cites several factors that “likely account for the unusually high and sustained level of district court vacancies since 2009. District courts experienced an atypically large number of retirements during the first three years of the Obama presidency, leading to a surge in the number open seats, while at the same time, fewer total district court nominees were confirmed during President Obama’s first term than in other recent administrations. Nominees also faced record wait times from nomination to confirmation in the Senate as compared to other recent administrations, and the President trailed his predecessors with respect to the number of judges nominated during his first three years in office. Finally, many home state senators have been slow to recommend nominees to the President, particularly in states with two Republican senators, which has delayed the process of identifying the nominees.”

    Other reports have shown that Obama has long since picked up the pace of putting forth nominees, but Senate Republicans have not altered their agenda of obstruction. Republicans led by Sen. Mitch McConnell (R-Ky.) have not only continued to slow-walk the president’s judicial nominations, they are holding up his nominations to the Environmental Protection Agency, the Department of Labor, the Consumer Financial Protection Bureau, and nominations to the five-member National Labor Relations Board. Sen. Chuck Grassley (R-Iowa) has even pushed a measure to cut the number of judgeships on the powerful U.S. Court of Appeals for the District of Columbia Circuit.