Criminal 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.

  • July 22, 2013
    Guest Post

    by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer.

    A few weeks ago I wrote a piece published in The Lawyer, a London based legal paper. My column, which questioned whether Edward Snowden is a whistleblower, drew passionate comment from those, like myself, who are counsel for individuals who are called whistleblowers because they have questioned corporate and government misconduct including lies. The discourse has caused me to continue to ponder the issue.

    The question of whether an individual is indeed entitled to be called a whistleblower is not just a matter of academic discourse. Whistleblowers are generally entitled to protection from retaliation and, under laws like the U.S. False Claims Act and the Dodd-Frank Amendments; they may even be entitled to a bounty. Setting aside the legal issue, those who properly question immoral processes, laws, or conditions, are in some circles considered heroes. And so this is also about who we place on a pedestal as beacons of ethics, integrity, and plain guts. 

    For me there are two components to the analysis of who is a "whistleblower”: (1) the reason for questioning a practice or law, an effort which may involve the disclosure of private or confidential information, and (2) the method for doing so.

    Merely making public private information - no matter how interesting the information may be - is not by itself a colorable act of whistle blowing unless there is some greater moral or societal purpose to be addressed. Then, of course, there is the question of the process employed to "blow the whistle."

  • July 16, 2013

    by Jeremy Leaming

    Following the acquittal of George Zimmerman a slew of groups and individuals called for calm, for a jury had spoken -- a jury bound to adhere to laws that protect the aggressor, one who took the life a young black man in Sanford, Fla.

    Well fine, but we don’t have to or shouldn’t stay silent about Florida laws that provide too much protection, in the name of self-defense, to the aggressor and too often the racist. And Florida is not alone. More than 20 states have self-defense laws that give knee-jerk racial-profilers like George Zimmerman the ability to kill and get by with it. As The New York Times editorial board put it, Stand Your Ground laws combined with weak concealed carry-laws, work "essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.” Noting the ridiculousness of Florida’s self-defense laws, The Times’ editorial concluded, “If only Florida could give him [Trayvon Martin] back his life as easily as it is giving back George Zimmerman’s gun.”

    Charles Blow, Andrew Cohen, Brittney Cooper, Ekow N. Yankah, The New York Times editorial board and many others have already gone where the attorneys in this case said they would not – race did play in this whole affair and the laws that ultimately allowed Zimmerman to target a young, unarmed black man, confront him and then kill him. These laws and others are part of an entrenched social disapproval of minorities. Zimmerman apologists cry that the matter had nothing whatsoever to do with race -- it was about a so-called neighborhood watchman defending himself.

    In a piece for the Atlantic, Andrew Cohen writes, “What the verdict says, to the astonishment of tens of millions of us, is that you can go looking for trouble in Florida, with a gun and a great deal of racial bias, and you find that trouble, and you can act upon that trouble in a way that leaves a young man dead, and none of it guarantees that you will be convicted of a crime.”

    Florida’s Stand Your Ground law, which provides significant legal protection to persons who kill others outside their homes claiming self-defense, may not have been specifically relied upon by the lawyers of Zimmerman who shot and killed Trayvon Martin, the unarmed teenager in Florida. It did play a role in the instructions given to the jury and affected the mindset of police. As The New York Times reporter Lizette Alvarez, pointed out it helped Zimmerman, along with other outside influences typically not available to the vast majority of criminal defendants. That law, as University of Miami law school professor Tamara Lave said, did keep Zimmerman from being arrested and charged with a crime for some time.

  • July 16, 2013
    Guest Post

    by Andrew Guthrie Ferguson, author of Why Jury Duty Matters: A Citizen's Guide to Constitutional Action (NYU Press 2013) and an assistant professor of law at the David A. Clarke School of Law at the University of the District of Columbia. 

    The debate over the Trayvon Martin/George Zimmerman jury verdict continues to reverberate as is typical of most high profile, racially divisive cases in this country.  Even though the criminal case is over, the issues of race, class, gender, and justice remain loudly contested in a way that will not likely quiet soon.      

    Today, the six citizens who made the difficult decision in the Zimmerman case are no doubt reeling from the discordant critique of their verdict.  These were ordinary citizens plucked at random and then selected to sit at the fault-lines of race relations in 21st Century America.  As other citizens receive their jury summons today and in the future, it is worth considering the situation of the Zimmerman jurors.

    First, much has been made about the jurors’ gender.  The early headlines of most major news outlets proclaimed “an all women jury.”  Five white and one Hispanic woman were thus immediately examined for how gender might affect the jury.  Forgotten were the historic and decades-long suffrage struggles to get any women (let alone all women) to sit on a jury.  Instead, modern gender stereotypes and speculations were tossed about as to how gender might affect the verdict.  Well, we now know the verdict, but can anyone say gender had any impact?  Time may tell as the anonymous jurors reveal more about their deliberations, but likely gender did not play any direct role.  Certainly, it was not because the jury was all women that the verdict resulted as it did.  Commentators from both genders have weighed in on how the verdict was defensible under the existing Florida law. 

    Second, forgotten in the media tumult is the sacrifice made by the jurors who were sequestered during trial.  Sequestering juries is no longer the norm in most places, and with the exception of big media cases, largely avoided.  But, for the weeks of jury service, those six citizens were completely serving their community.  This is no small sacrifice.  To be completely at the whim of the court system schedule, away from work, family, and life responsibilities in order to judge a stranger’s problem is a tremendous service.  Further, to deliberate for 16 hours is no small feat.  When is the last time you held a 16 hour meeting to discuss and decide on a problem?  This type of commitment should be validated not vilified, as has unfortunately been the case from some quarters.

  • June 18, 2013
    Guest Post

    by G. Ben Cohen. Mr. Cohen is OF COUNSEL at The Capital Appeals Project. Cohen was VISITING LITIGATION COUNSEL at the Charles Hamilton Houston Institute in 2011.

    On April 29, 2013, after briefing and oral argument on whether the State’s failure to fund counsel for a defendant should be weighed against the state for speedy trial purposes, five Justices of the U.S. Supreme Court turned a blind eye in Boyer v. Louisiana to the funding crisis in Louisiana’s public defender system and declined to address the seven year wait between Jonathan Boyer’s arrest and trial. On Boyer’s heels comes another case underscoring the unconscionable harms of the Bayou State’s decimated criminal justice system – which has depended on traffic tickets to fund the defense function.

    On June 20, 2013 the Supreme Court will decide whether to grant certiorari in Michael Garcia v. Louisiana.  The public defender office could not afford to adequately provide separate capital representation to Mr. Garcia and his two co-defendants.  By law, however, the Public Defender could not represent all three defendants himself.  Even the prosecutor informed the trial court at Mr. Garcia’s very first hearing that the multiple representation might pose a conflict of interest, but the judge left the Public Defender to work it out. 

    The Public Defender assigned all the capitally-certified attorneys from his office, including himself, to represent Mr. Garcia, and assigned lawyers who were not certified to represent defendants facing the death penalty to represent the two co-defendants. This refusal to hire outside counsel saved the public defender office from going bankrupt.  It also prevented the state from seeking death against the two other defendants.  But it meant that Mr. Garcia’s lawyer chose him as the only defendant against whom the State could seek the death penalty.