Criminal Justice

  • 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.

  • June 6, 2013
    BookTalk
    Father, Son, and Constitution
    How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy
    By: 
    Alexander Wohl

    by Alexander Wohl. Mr. Wohl is an adjunct professor at American University Washington College of Law, speech writer in the federal government and a former Supreme Court Judicial Fellow. For more information about his new book on Justice Tom Clark and his son Attorney General Ramsey Clark, visit the Father, Son, and Constitution Facebook page.

    As the only father and son to serve as attorneys general of the United States, Tom and Ramsey Clark are an historically unique pair, a distinction made even more noteworthy by Justice Tom Clark’s decision to give up his seat on the Supreme Court in 1967 so that his son could become President Lyndon Johnson’s attorney general. The tag-team tenure in government of this father and son was an unprecedented shared proximity to power and policy influence during some of the most challenging, divisive, and triumphant periods in U.S. history, from World War II to the attacks of September 11, 2001. But their impact is more far-reaching. In combined careers of more than 100 years and lives spanning three centuries, the Clarks provide a useful lens through which to examine the complex relationship between government and individual citizens that has defined and shaped U.S. legal and social policy through the present day.

    At the heart of both Tom and Ramsey Clark’s work were many issues addressing this balance: the extent to which individuals should be prosecuted for “dangerous” speech or associations, when to use invasive law enforcement tools such as wiretapping, what type or duration of confinement constitutes unlawful detention, and the kind of role the federal government itself can or should play in the development of various policies and the enforcement of individual constitutional principles.

    On these and other thorny questions the Clarks at once offer a set of ideological bookends and proof that views can evolve over time, a combination largely absent in an environment today in which questions about law and policy increasingly lead to ideological stratification and decision makers ever more pigeonholed in their views. While Tom and Ramsey Clark had clear differences in their outlook and approach, they often found common ground on many issues, including gun control, juvenile crime, and civil rights, along the way learning from each other.

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.