Other courts

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.

  • March 26, 2015
    Guest Post

    by Sarah Hunger and Meredith Kincaid, Associates at Jones Day.  Jones Day represents The National Association of Black Veterans, Swords to Plowshares, Veterans Defense Project, and The Constitution Project in an amicus brief that the authors filed in support of Mr. Lockhart.  Mr. Lockhart is represented by Equal Justice Initiative.

    In 2010, an Alabama jury voted unanimously to spare the life of Courtney Lockhart, an Iraq war veteran facing the death penalty for a murder he committed while suffering from combat-related mental health issues.  Several months later, and upon consideration of evidence never shown to the jury, the elected judge overseeing Mr. Lockhart’s case sentenced him to death.

    In Alabama, the jury’s role at capital sentencing is merely advisory, and the imposition of the death penalty hinges upon specific, written findings of fact made by elected judges.  Under this regime, Alabama courts are empowered to make these factual findings “based upon information known only to the trial court and not to the jury.”  Adhering to this doctrine, Mr. Lockhart’s sentencing judge overrode the jury’s unanimous recommendation of life based upon information never presented to the jury, including evidence deemed inadmissible in a suppression hearing.

    In January, Mr. Lockhart filed a petition for certiorari to the Supreme Court arguing that his death sentence, as well as the Alabama regime that authorizes it, violates the Sixth and Eighth Amendments.  The Supreme Court’s review of this important and recurring issue is long overdue.  In the past decade, at least 28% of death row inmates in Alabama were sentenced via judicial override, and more than 100 inmates now sit on death row because of its use.  Nevertheless, the Supreme Court has not reviewed Alabama’s death penalty regime since 1995, well before it announced in Apprendi that the Sixth Amendment precludes judges from making findings that authorize an increase in the maximum punishment.

    Most notably, as Mr. Lockhart and amici assert, judicial override as practiced in Alabama deprives defendants of their Sixth Amendment right to trial by jury by making the heightened punishment of death dependent upon judicially found facts.  This means, in other words, that Alabama defendants are not eligible for the death penalty until the trial judge makes sufficient findings of fact to support it – a remarkably clear-cut Apprendi violation.  Alabama’s death penalty regime, which gives judges the unilateral power to impose death sentences on individuals that juries have voted to spare, should no longer go unchecked.  The Court should grant Mr. Lockhart’s pending petition.

  • March 13, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    Almost two years after the Boston Marathon bombings, the trial of the accused bomber, Dzhokhar  Tsarnaev, is underway in a federal courthouse about two miles from the scene of the horrific events of that April day. 

    Tsarnaev was charged with 30 federal crimes, 17 of which carry a possible death sentence.  A lengthy jury selection process delayed the start of the trial, with approximately 1,350 individuals completing juror questionnaires.  The defense filed four motions to change the venue, arguing that the widespread pre-trial media coverage and universal emotional impact of the bombings made a fair – and constitutionally sound – trial impossible.  Each of these motions failed, and rightfully so.  Once it began, the trial took an unexpected turn when Tsarnaev’s attorney admitted her client’s guilt during opening statements, surprising everyone – except, hopefully, her client.  While the prosecution still has to prove its case, this trial is largely now about whether Tsarnaev will live or die.

    The defense’s efforts to move the trial and its recent admission of their client’s guilt raise several questions.  Would the defense lawyers have admitted guilt so quickly if the trial had been held in a different venue?  Likely so.  While, as noted, the defense unsuccessfully tried four times to have the trial relocated, it is highly likely that the focus would still have been on saving their client’s life, rather than arguing his innocence.  The burden is on the prosecution, of course, but the evidence against Tsarnaev is overwhelming, from a video showing him set the backpack containing the bomb near a crowd of marathon spectators to his identification by a victim who lost both of his legs.  Moving the trial from Massachusetts would not have lessened this evidence’s weight.

    In deciding to admit guilt, the defense team also likely had in mind research suggesting that jurors selected for death penalty cases are more prone to find guilt because the attention given to the sentencing phase during the pre-trial voir dire process suggests that there will be one.  If that research is accurate – a topic beyond the focus of this short post – that bias would exist in Baltimore as well as in Boston.  (Interestingly, in 2005 the Massachusetts Governors Council on Capital Punishment – commissioned by then-Governor Mitt Romney to consider ways to make the imposition of a state death penalty “as infallible . . . as humanly possible” – proposed in its report that separate juries be empanelled for the guilt and sentencing phases of a capital trial to address this potential bias.)  Given the evidence against their client, it is likely that the defense strategy to admit guilt and focus on saving their client’s life would have been the same if the trial was held hundreds of miles from the scene of the marathon tragedy.

  • February 13, 2015
    Guest Post

    by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Faculty Advisor to the Washington College of Law ACS Student Chapter

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    The recent killings by police officers of Michael Brown and Eric Garner, and the failure of grand juries to charge the responsible officers under state law, once again have elevated the relationship between minority communities and the police forces that serve them onto the national stage.  The issue has periodically gained attention following dramatic incidents, such as the beating of Rodney King in 1991, the killing of Amadou Diallo in the Bronx in 1999 and the multiple killings on the Danziger Bridge in New Orleans following Hurricane Katrina.  These incidents are invariably racially charged, and they invariably cause victims, families and communities seeking a remedy for racial injustice to turn to the federal government to pursue federal criminal civil rights charges.

    Yet, unknown to most people – including confused “experts” rolled out by the media – the federal criminal law pursuant to which these cases are prosecuted, 18 U.S.C. 242, does not require proof of racial intent as an element of the crime.  Indeed, the vaguely worded statute subjects to criminal liability anyone who “under color of any law . . . willfully subjects any person . . . to the deprivation of any rights . . . secured or protected by the Constitution or laws of the United States . . . .”  The statute was originally enacted in 1866, narrowed in 1909, and has since been revisited only to enhance its penalties.  Congress’s failure to update the statute means that a law that was enacted 149 years ago for application in a very different society to very different circumstances – and which has subsequently been largely rewritten through judicial interpretation – is the principal federal tool for prosecuting police officers.

    Section 242 was originally enacted as a buffer between freed slaves and southern states, but along with most of Reconstruction’s civil rights protections, it fell into disuse through restrictive judicial interpretations and a failure of political will.  Restrictive readings of “color of law” and the scope of constitutional rights, and the Supreme Court’s attempt to save the statute from unconstitutional vagueness by requiring proof of specific intent, undermined the statute.  Under the Court’s interpretation, juries must find that the defendant knowingly engaged in conduct that violated a clearly established federal right even though he need not have been aware of the legal definition of the right.  The mental jujitsu required to apply the standard has befuddled juries ever since and made the Department of Justice cautious in enforcing the statute.

    The statute also requires the identification of a federal right.  The Court has held that a shooting or beating while a suspect is being taken into custody is a seizure which, pursuant to the Fourth Amendment, must be reasonable.  Reasonableness requires an objective calculation of what a reasonable officer would do, but it must take into account all of the pressures, uncertainties and confusion that confronted the defendant officer.  Therefore, on one hand the standard is objective, but its application becomes subjective when taking into account the officer’s perceptions. 

  • February 13, 2015

    by Caroline Cox

    In Thursday’s Senate Judiciary Committee Executive Session discussion, four nominees were held over until a later meeting: Alfred Bennett, George C. Hanks, Jr., and Jose R. Olvera, Jr. to be U.S. District Judges for the Southern District of Texas and Jill N. Parrish to be a U.S. District Judge for the District of Utah. 

    Despite change in leadership of the Senate Judiciary Committee, the pattern of Republican obstructionism continues with the use of the procedural tactic to “hold over” judicial nominees. Alliance for Justice critiques the practice in a recent blog post.

    The Detroit Free Press reports that in a meeting with President Barack Obama at the White House this week, Muslim-American leaders asked the president to nominate a Muslim-American to the federal bench. There has not yet been a federal judge in the U.S. who is Muslim.

    Vocativ provides a list of the senators that have been the most likely to vote against Obama appointees and stall the judicial nomination process.