Archive for the ‘Criminal Procedure’ Category
Appearing for the Defendant, $186,416.00: Medical Marijuana, State Law, and the Fourth Amendment
posted by Deven Desai
The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.
The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.
While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.
I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.
October 21, 2009 at 7:25 am
Tags: Fourth Amendment, medical marijuana
Posted in: Criminal Law, Criminal Procedure, Health Law, Privacy (Law Enforcement)
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Problem-Oriented Policing in Chicago Public Schools
posted by Sarah Waldeck
The new chief officer of Chicago public schools has a fresh strategy for preventing the killings of public school students. Such killings occur with alarming regularity; 67 since the start of the 2007 -2008 academic year. If this doesn’t sound bad enough, the 67 doesn’t include the hundreds of students who were shot or beaten but managed to survive. Right now Derrion Albert—the football player and honor student who was beaten to death when he got caught between rival gangs—is dominating the headlines. But anyone who lives in Chicago expects that we’ll soon know another name. The violence is relentless.
Enter Ron Huberman, the new chief officer of Chicago public schools. He has a plan to stop the killing, one that is based on an analysis of more than 500 students who were attacked. The plan might work, provided that Chicago is able to resist its inevitable temptations. Read the rest of this post »
October 9, 2009 at 12:29 pm
Posted in: Criminal Law, Criminal Procedure
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Too Much Discretion
posted by Daniel Solove
In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge? Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.
In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion. Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.
President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement. He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.
Should the police have so much power to arrest a person? With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.
And consider this story, from the Chicago Tribune:
Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.
As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.
Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .
A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.
Apparently, the yawn was very loud and disruptive, but jail? Six months? Why not simply kick him out of the courtroom?
Judges have tremendous discretion to issue contempt charges. It is way too much, and there are few limits to reign judges in. The article continues:
August 10, 2009 at 10:09 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure
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New Empirical Work on International Criminal Law
posted by Jenia Turner
Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.
Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.
The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.
July 26, 2009 at 7:49 am
Tags: Criminal Procedure, Empirical analysis, ICTY, international criminal law, managerial judging
Posted in: Criminal Procedure, Empirical Analysis of Law, International & Comparative Law
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German Bundestag Passes Plea Bargaining Law
posted by Jenia Turner
Germany was once known as a “land without plea bargaining.” Those days are now long gone.
On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.
July 16, 2009 at 9:30 am
Tags: German Criminal Procedure Code, Germany, plea bargaining
Posted in: Criminal Procedure, International & Comparative Law
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Racial Profiling Still Pervasive in United States: Does Anyone Care?
posted by Kevin Johnson
Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended. In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.
The basic criticism of racial profiling is simple. A police stop for “Driving while Black” or “Driving while Brown” was unaccaptable as well as unlawful. Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities. Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come. (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect data on traffic stops. A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.
Were the promises to end racial profiling kept? Apparently not. A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.
What happened? The persistence of racial profiling should be no real surprise. As we all know, law enforcement is difficult to reform. Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics, for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.” Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.
Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement. The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement. The result was that the challenge to racial profiling ebbed.
It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.
And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement. Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants. This is a particular problem in the Southwest in the U.S./Mexico border region. The Supreme Court has sanctioned this practice. In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop. Since that decision, “Mexican appearance” has come to dominate immigration enforcement. Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement. Click here for analysis of the Brignoni-Ponce decision.
The bottom line is this. Racial profiling remains central to law enforcement in the United States. Is there the political will to eradicate racial profiling? Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?
July 4, 2009 at 6:32 am
Posted in: Civil Rights, Criminal Procedure, Race
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Truthseeking and Criminal Procedure in the Supreme Court’s Last Term
posted by Jenia Turner
Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.
As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?
One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.
The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.
In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.
July 2, 2009 at 7:55 pm
Tags: Osborne and DNA
Posted in: Criminal Procedure, International & Comparative Law, Supreme Court, Uncategorized
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Practical Advice: Don’t Let Your Client Pay You in Guns
posted by Dave Hoffman
Wow. A pharmacist accused of murder decided to pay his lawyer with his firearm collection. When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued. Quick: which amendment gets play? (Hint: it’s not the 2nd!)
“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.
Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.
Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.
Box told the judge he has accepted other unusual payments in the past, including comic books.
The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store. You can see the video here. And as for the constitutional right to withhold information about Ersland’s gun collection? That would be the right against self-incrimination:
District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.
The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.
This advice is generalizable. Take cash over credit, and credit over barter. And never, ever, take the instruments of the crime.
June 1, 2009 at 11:47 am
Posted in: Criminal Law, Criminal Procedure, Current Events, Second Amendment, Weird
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A Right to Be Punished?
posted by Michael Madison
From the Department of Paradoxes in Sporting Jurisprudence:
Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)
As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.
After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.
That prompts this question: Is there a right to be punished? If so, when, and if so, why?
May 12, 2009 at 1:29 pm
Posted in: Civil Procedure, Criminal Law, Criminal Procedure, Current Events, Jurisprudence
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The Craigslist killer and your crim pro exam
posted by Jennifer Collins
I can tell that I am deep in exam grading because when I read news updates about the Craigslist killer, instead of pondering questions like whether his girlfriend will continue to stand by him, I am focusing on all the great questions that can come out of the case for use on a crim pro exam next year. Consider the question of joinder, for example, an incredibly important issue in real-world criminal practice but a topic that, in my experience, receives relatively little attention in a typical crim pro course. Can the two Massachusetts crimes, the robbery and the robbery/murder, be joined together in a single trial? The relevant portion of Federal Rule of Criminal Procedure 8(a) allows the government to charge multiple offenses together in a single indictment if they are “of the same or similar character.” Does finding your victims through the same online resource constitute enough of a similarity to make this a true signature crime? Would the evidence of the murder be so prejudicial if the robbery case were tried alone that a judge should order severance under FRCP 14? There should be some very interesting pre-trial motions when — and if — the case ultimately makes it to that stage.
May 11, 2009 at 7:22 am
Posted in: Criminal Procedure, Uncategorized
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Government Lawyers’ Ethical Obligations and the War on Terror
posted by Andrew Taslitz
Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.
These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.
The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.
May 8, 2009 at 4:05 pm
Tags: Add new tag
Posted in: Book Reviews, Civil Rights, Constitutional Law, Criminal Procedure, Culture, Current Events, History of Law, Law Practice, Politics
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SCOTUS’s Troubling View of the Truth in Exclusionary Rule Cases
posted by Andrew Taslitz
I plan for several of my blog entries this month to address the United States Supreme Court’s confused conception of the role of truth-seeking at trial, particularly as revealed in its constitutional criminal procedure jurisprudence. My primary examples will be drawn from the Court’s various opinions this term concerning the scope of the exclusionary rule. Today’s entry focuses on the rule’s application in the Sixth Amendment right to counsel context in Kansas v. Ventris, 556 U.S. __ (2009).
Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge against Teel in exchange for her pleading guilty to robbery and testifying that Ventris was the shooter. Before Ventris’s trial, officers planted an informant in Ventris’s jail cell, an informant willing to testify that during his conversations with Ventris, Ventris admitted that “he’d shot this man in his head and his chest” and taken “his keys, his wallet, about $350.00, and…a vehicle.”
The state would later admit that this statement was obtained in violation of Ventris’s Sixth Amendment right to counsel on the pending charges, a right triggered by the start of formal criminal proceedings. At trial, Ventris testified, blaming the robbery and shooting entirely on Teel. The state argued that even if Ventris’s statement to the jailhouse informant could be excluded in the state’s case-in-chief as violative of the Sixth Amendment, the statement was now admissible to impeach Ventris by contradicting his testimony. Such contradiction would demonstrate that Ventris had lied to the jury.
The trial court agreed, admitting the statement allegedly made by Ventris to the jailhouse informant, though giving the jury an instruction to “consider with caution” all testimony given in exchange for benefits from the state. The jury acquitted Ventris of felony murder and misdemeanor theft but convicted him of the aggravated burglary and robbery counts. The Kansas Supreme Court reversed on Sixth Amendment grounds, but the United States Supreme Court instead agreed with the trial judge. Impeachment of the accused by an uncounseled statement allegedly made to a jailhouse snitch absent the presence of the accused’s counsel — whose presence the Sixith Amendment mandated — was entirely constitutional, at least in the high Court’s eyes.
Here is where the Court’s troubling notions of truth kicked in.
May 4, 2009 at 12:43 pm
Posted in: Criminal Procedure
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Solitary Confinement: Possibly Torture, Definitely Hell
posted by Sonja Starr
Thanks very much to Danielle for her kind introduction, and to her and Dan for inviting me to participate in this blog. This is my inaugural blogging experience, and I’m (somewhat nervously) looking forward to it! Let me start with a brief comment on the story on solitary confinement by Atul Gawande in this past week’s New Yorker. Solitary confinement is practiced on quite a large scale in the United States, especially with the rise of supermax prisons over the past ten or twenty years. Gawande argues that solitary confinement essentially destroys prisoners’ brains. Humans are extremely social animals, and absent regular interaction, our minds deteriorate rapidly and to a surprising degree. Among people detained alone for extended periods, depression and misery are universal, and psychotic breaks are fairly common. Many prisoners of war describe solitary confinement as a worse experience than physical torture. Some prisoners more or less recover after return to ordinary prison or to society; others never do. A number of legal scholars have made similar arguments, and in fact the extreme psychological harm done by solitary confinement was recognized over a century ago by the Supreme Court in In re Medley, 134 U.S. 160 (1890).
Gawande’s article’s subtitle asks: “Is this torture?” Let me assume for a moment that Gawande, who pushes the torture comparison in the body of the piece as well, means that as a serious legal question. The question isn’t frivolous. The answer isn’t a categorical “yes,” but it’s probably not a categorical “no” either–it is plausible that some cases of solitary confinement in the U.S. might qualify as torture under international law. The leading formulation, in the Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for certain specified purposes, including punishment. Domestic and international courts have generally interpreted the severity requirement fairly strictly (though not as strictly as some recent US officials have done, to be sure), though certainly the dire picture that Gawande paints suggests that at least some instances of solitary confinement might qualify as severe mental suffering.
April 1, 2009 at 10:43 pm
Posted in: Criminal Law, Criminal Procedure, International & Comparative Law
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Red Herring
posted by Jason Mazzone
Writing in the New York Times, Adam Liptak casts the Supreme Court’s recent decision in Herring v. United States as a big step towards repealing the exclusionary rule the Court crafted in 1961 in Mapp v. Ohio. Liptak emphasizes that Chief Justice Roberts, the author of the majority opinion in Herring, had advocated doing away with the exclusionary rule while he served as a government lawyer under President Reagan. In predicting where the Court is headed, Liptak places greater stock in memos Roberts wrote as a government lawyer than I would. I doubt the Court is likely to overrule Mapp any time soon.
February 3, 2009 at 2:16 pm
Posted in: Criminal Procedure
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Herring v. United States, the Exclusionary Rule, and Errors in Databases
posted by Daniel Solove
Earlier this week, the U.S. Supreme Court decided Herring v. United States, a case examining whether the exclusionary rule should apply to a search that was based on an error in a database.
In particular, due to a negligent error in a computer database indicating that there was an outstanding felony arrest warrant for Bennie Herring, he was arrested and a search incident to arrest revealed drugs and a gun (which he was not permitted to possess since he had a previous felony conviction).
The Supreme Court, in an opinion by Chief Justice Roberts, concluded that the justification for the exclusionary rule is deterrence and that the deterrent benefits in this case were too minimal to support exclusion. The Court wrote that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”
Orin Kerr contends that the case is “a replay” of Arizona v. Evans, 514 U.S. 1 (1995), a previous case upholding a search based on an erroneous database. In contrast, Tom Goldstein argues that Herring constitutes a more dramatic curtailment of the exclusionary rule:
The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
Orin disagrees, reading Herring as a narrow decision, not going much further than Evans: “In particular, I don’t see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases.” Is Orin right? Is Goldstein’s fear just a Red Herring?
I hope Orin is right, but two things give me pause. First, the Court states at the beginning of Part II: “When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation.” This is framed much more broadly than the issue in Evans, which was:
This case presents the question whether evidence seized in violation of the Fourth Amendment by an officer who acted in reliance on a police record indicating the existence of an outstanding arrest warrant — a record that is later determined to be erroneous — must be suppressed by virtue of the exclusionary rule regardless of the source of the error.
Note that in Evans the Court explicitly focuses on errors in police records.
Second, at the end of its opinion in Herring, the Court states:
January 17, 2009 at 2:52 pm
Posted in: Criminal Procedure, Privacy, Privacy (Law Enforcement)
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Why President Bush Might Not Want to Pardon His Administration: An International Angle
posted by Brian Kalt
I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.
After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but listening to him, it did strike me that prosecutions–especially international ones–are more of a possibility than I had previously thought.
Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process–which could have more legitimacy and would avoid sovereignty concerns–remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.
If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.
Another permutation–impeachment of Bush Administration officials after they have left office–looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I’ll post more on “late impeachment” in the next few days.)
Again, I’m not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn’t realize a few hours ago.
January 7, 2009 at 1:17 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Current Events, International & Comparative Law, Politics
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Toussie’s Pardon *Was* Signed, Sealed, Delivered, and Probably Accepted
posted by Brian Kalt
At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie’s case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:
1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”
2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.
3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.
4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.
5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.
It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they “will be” pardoned “as soon as they get the individual warrant” (which may take weeks to arrive). The OPA always tell them they “have been” pardoned. No contingencies.
So far, the president’s argument has been that the pardons were still in some state of preparation–not yet a pardon, in essence–and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)
Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.
One might argue that Toussie hadn’t accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president’s), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn’t accept it.
I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president’s argument in this case–that the Toussie pardon had not yet been granted–is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought “what? you can’t revoke a pardon.” Then, upon hearing the claim that the pardon hadn’t been processed yet, I thought “well, maybe this wasn’t a pardon.” Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I’m back to “what? you can’t revoke a pardon.” I hope that Toussie litigates this and that the court settles this once and for all.
Of course, there is still the matter of Ruckman’s argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman’s credit, they shoot down the callow media reports that Bush’s move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.
December 27, 2008 at 7:51 am
Posted in: Constitutional Law, Criminal Procedure, Current Events, Politics
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More on the President’s Attempt to Revoke the Toussie Pardon
posted by Brian Kalt
Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.
The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual.” It didn’t say that Bush started the process of pardoning them. It said he pardoned them, because that’s what everyone understood was happening. Without knowing exactly how these things work, I can’t assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.
The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn’t purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”
Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can’t be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie’s case, because he “believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.” But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.
In any case, if I were Toussie (the only person with standing to challege the president’s action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.
But once President Obama takes office, one can assume the application will be rejected, if it hadn’t been already. Then Obama’s administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old “let’s not cede any authority we may have” doctrine. Then again, Obama could argue in favor of the president’s power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.
To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.
December 26, 2008 at 11:13 am
Posted in: Constitutional Law, Criminal Procedure, Current Events, Politics
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President Bush Revokes Pardon of Isaac Toussie
posted by Brian Kalt
As this MSNBC story and this CNN story detail, President Bush pardoned real estate scammer Isaac Robert Toussie, and then revoked the pardon a day later (today).
It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.
I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.
President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president’s revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president’s action in court. From the CNN story, though, it doesn’t sound like that is going to happen.
Strange days indeed.
UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn’t final.
Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court’s eyes:
There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:
A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’
Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:
President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.
This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn’t want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let’s accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.
In Toussie’s case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie’s pardon; DePuy therefore does not control. Toussie’s pardon thus seems to be final in a way that Wilson’s and DePuy’s pardons were not.
However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn’t deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.
December 24, 2008 at 8:59 pm
Posted in: Constitutional Law, Criminal Procedure, Current Events
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William Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791
posted by Daniel Solove
I’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.
Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.
I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn’t believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I’m delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:
No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.
Get your copy today. Tell your librarian to get a copy for your school’s library. It’s truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.
December 18, 2008 at 6:41 pm
Posted in: Articles and Books, Book Reviews, Constitutional Law, Criminal Procedure, History of Law, Privacy, Privacy (Law Enforcement)
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