Why President Bush Might Not Want to Pardon His Administration: An International Angle

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.

Posted by Brian_Kalt at 01:17 PM | Comments (1) | TrackBack

Toussie's Pardon *Was* Signed, Sealed, Delivered, and Probably Accepted

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.

Posted by Brian_Kalt at 07:51 AM | Comments (3) | TrackBack

More on the President's Attempt to Revoke the Toussie Pardon

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.

Posted by Brian_Kalt at 11:13 AM | Comments (5) | TrackBack

President Bush Revokes Pardon of Isaac Toussie

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.

Posted by Brian_Kalt at 08:59 PM | Comments (10) | TrackBack

William Cuddihy's The Fourth Amendment: Origins and Original Meaning 602-1791

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.

Posted by Daniel Solove at 06:41 PM | Comments (4) | TrackBack

Can the President Pardon Himself?

Would a presidential self-pardon be valid?

My answer—no, it wouldn't be—was first registered back in the 1900s, when I wrote my student note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons. This was the beginning of my principal scholarly focus: "weird constitutional stuff that probably won't ever happen (but if it ever does, wow!)."

As President Bush's term draws to a close, people are starting to ask me about self-pardons again, just as they did at the end of President Clinton's—and just as President Nixon asked his lawyers before he resigned (they said he could self-pardon, and he contemplated it). Not that partisans ever believe it, but my answer has been the same regardless of which party the president in question belongs to.

There are good arguments on both sides of the question, and Chapter 3 of my book-in-progress (Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies) deals with them in more detail than my note, and in much more detail than this post. The chapter starts with a hypo (after which, in this post, I will sketch out the legal analysis):

The last year of his second term have been a non-stop political and media circus for President Smith. He and his top operatives have been embroiled in a complex and confusing scandal, with a seemingly endless stream of allegations of bribery, tax evasion, abuse of the power of the presidency, and, for good measure, some violence and drugs.

Smith paid a price for the scandal, to be sure, but the political backdrop—extremely intense partisan division in the country—allowed him to fight back. He consistently and strenuously maintained his own innocence and attributed the matter to the political opportunism, dishonesty, and malice of his opponents. Indeed, his most vocal critics were so shrill and hypocritical that most of Smith's allies continued to support him.

All of this turmoil came to a head in last week's presidential election. Unfortunately for Smith, his chosen successor, Vice President Jones, narrowly lost the election to Governor Miller. Now that the opposition controls the White House, it looks like the investigation against Smith will expand and be led by Smith's political enemies, now wielding the substantial weapon of Miller's presidential power. Indeed, the rumored choice to lead the prosecution, Tom Taylor, is well known both as a tough prosecutor and as a critic of President Smith's conduct.

Smith makes a fateful decision. He pardons his aides implicated in the scandal "for any crimes they might have committed" during his two terms, and then he pardons himself using the same vague formulation. Explaining his decision on national television, he states again that he and his aides have done nothing wrong, and that he wants to spare the country the expense, distraction, and vitriol of a continued investigation led by his vindictive enemies. "For ten months these scurrilous people have paralyzed the country. We've been unable to work on the real problems Americans face," he says. "It looked to me like this problem was about to get worse. Enough is enough. With this pardon, I'm taking decisive action to finally end this long national distraction."

Smith's opponents are enraged. They claim that the self-pardon is constitutionally invalid and they call for the investigation to continue. If Smith had resigned and let Vice President Jones pardon him, they argue, the pardon clearly would have been valid and would have avoided this legal snarl. But Smith had always maintained his innocence and refused to resign, and Jones was not entangled in the scandal at all. Jones might want to run for president again, and she clearly had no desire to compromise her future political viability by accepting the presidency for two months in exchange (seemingly) for pardoning her troubled boss. For his part, Smith did not want to take the chance that Jones would not pardon him, and he also did not want to put her into the position of having to choose.

Smith's supporters—publicly defensive, privately gleeful—confidently assert that a president has the constitutional power to pardon himself and that Miller and Taylor should give up the case. Nobody seriously doubts that if the parties were reversed, everybody would be making the exact opposite legal arguments, and just as loudly. At any rate, it seems that the expense, distraction, and vitriol of this long national distraction are not over just yet. Smith leaves office, Miller takes over, and Taylor gets a grand jury to indict Smith. Smith cites his pardon and moves to dismiss the indictment. This case is going to the Supreme Court.

The thing about self-pardons is that there is probably no way to answer the question of whether they are valid or not, until and unless an actual president issues an actual self-pardon and has it tested in court. All I can do is lay out the things I think that court would chew on.

The main argument in favor of self-pardonability is that the Constitution gives the president a broad power to pardon and carves out some specific limits, but self-pardons aren't one of them. The Constitution says that presidents can only pardon federal crimes, and that pardons can only affect criminal sanctions, not congressional impeachment. Another limit, implicit in the definition of a pardon, is that it can only reach past actions; pardoning someone for something he hasn't done yet would be a suspension of the law, not a pardon. Those are the only limits, say proponents.

But that last point tees up the best textual argument against self-pardons. The pardon power only empowers the president to issue "pardons," obviously, so we need to figure out what a "pardon" is. One can argue that a pardon is, by definition, something you give to someone else. But that's a bit circular; a court could also say, "no they aren't," and thereby make it so.

There are structural arguments on both sides too. Opponents of self-pardonability can point to the limited nature of the presidency, and to the myriad constitutional prohibitions on self-dealing and self-judging. Not all of these prohibitions are explicit. The Constitution would seem, for instance, to give the vice president the power to preside over his own impeachment trial, but some people read into the Constitution an inherent prohibition on such a thing. If you have a problem with a VP presiding over his own trial, you should have an even bigger problem with self-pardons.

Proponents can respond that the pardon power is broad enough to accompany all manner of ghastly pardons. A president can pardon his co-conspirators; he can pardon his VP, step aside, and have his VP pardon him. If he can do those things, why not pardon himself? The check on all of these self-interested pardons is not to pretend that the pardon power has (awfully convenient) implicit limits. The check is impeachment, and possibly prosecution—a self-pardon, even if valid, might constitute a crime and an impeachable offense, just like one given in exchange for a bribe would be.

Those who look to original intent can support either side too. As I discussed in a post here a few days ago, when the possibility of treasonous presidents pardoning their co-conspirators came up, the response was that such presidents could be impeached and prosecuted. Surely this discussion is incompatible with the delegates understanding that the president could pardon himself. They probably didn't think self-pardons were possible, under basic principles against self-judging. At the very least, though, they didn't consider the possibility.

Finally, opponents would probably emphasize the general point that nobody can put himself above the law, that no one can be the judge in his own case, etc. Proponents could respond that these principles, for all of their venerability, do not rise to the level of a constitutional requirement.

The main question I have faced when I have promoted this topic—and most of my others—is, "why should we worry about this, given how unlikely it is?" (at least I think that's what people are thinking when they roll their eyes).

For self-pardons, I have two answers. One is to say that analyzing questions like this gives us an opportunity to test our assumptions—about pardons in particular, and about constitutional interpretation in general. Plus, they're interesting and fun to think about.

The second is that it might actually happen. My fictional hypo paints the picture I see when I envision a self-pardon; another version would involve a clearly guilty, totally shameless Blagojevich-type crook. Neither scenario is beyond the realm of imagination. The point, though, is that it is worth thinking about in advance, before the analysis gets clouded with the sort of party-line interpretations one saw in the Clinton impeachment case.

That said, there is probably nothing anyone can do to actually settle the question in advance, short of amending the Constitution. It's hard enough to amend the Constitution to fix actual problems, though, so it is not really worth contemplating amending it to preempt this merely hypothetical one.

Posted by Brian_Kalt at 09:07 PM | Comments (10) | TrackBack

Greenwald and Landau on Guantanamo Detainees

Glenn Greenwald put the recent release of five Guantanamo detainees in a chilling light:

The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way, or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.

It might seem like the whole system should be shut down immediately. But Joseph Landau has a very interesting article on the tricky legal and policy issues raised by the potential closing of Guantanamo Bay:

[S]even years after 9/11, there's little agreement on how the U.S. should try "enemy combatants," delaying the ability to close Guantanamo down. Some conservatives argue that civilian courts are too protective of detainee rights or would sacrifice sensitive national security information; civil libertarians reject national-security courts for insufficiently guarding defendants' rights. Many of the detainees' lawyers doubt that their clients' cases will wind up in the civilian courts. . . .

[A]round 60 detainees who have essentially been cleared of all terror charges remain at Guantanamo because they, too, cannot be returned to their home countries. The United States will not send a detainee to a country where he risks persecution or torture; the Convention Against Torture, which the U.S. signed onto in 1988, prohibits it.

[Many] Guantanamo experts believe that our allies won't accept Guantanamo detainees--even those cleared of all terror charges--as long as the U.S. refuses to do the same. Emi MacLean, a staff attorney at the Center for Constitutional Rights, which is coordinating the federal litigation on behalf of Guantanamo detainees, said, "What we hear from European governments is they are willing to help the United States as long as there's a demonstration that the U.S. is willing to pick up some of the pieces. The U.S. has to do its part as well." But advocating for the transfer of Guantanamo detainees to American prisons is politically dangerous.

Like much else in the Bush legacy, Guantanamo will be extraordinarily difficult to unwind.

Posted by Frank_Pasquale at 12:22 PM | Comments (2) | TrackBack

Sentence Reduction: A New Remedy for Prosecutorial Misconduct

Typically, remedies for prosecutorial misconduct are all or nothing--convictions and pleas are reversed or dismissed, on the one hand, or the abusive behavior is viewed as harmless error and nothing is done about it, on the other. But, on September 24, 2008, Judge Bennett in the N.D. of Iowa eschewed this binary choice in United States v. David Dicus, reducing the defendant's sentence for the prosecutor's breach of the plea agreement regarding a sentence enhancement instead of viewing a withdrawal of the guilty plea (or specific performance of the breach provision) or no response as the only available options. The court refused to ignore the misconduct, even though the sentencing court did not in fact impose the sentence enhancement, because "it would do nothing to deter prosecutorial misconduct or to give defendants an incentive to raise prosecutorial misconduct claims." In making the decision to remedy prosecutorial misconduct with a reduction of the defendant's sentence to the low end of the advisory sentencing guidelines range, the court relied on Sonja Starr's compelling new piece, Sentence Reduction as a Remedy for Prosecutorial Misconduct (which will be coming out in the Georgetown Law Journal in 2009). Starr's article is ground-breaking and makes an important contribution to the law development's in this area. In it, she argues that sentence reduction would be both an effective deterrent to prosecutorial misconduct and an important corrective and expressive remedy.

Here is the abstract of Starr's article:

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, such remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid such windfalls, courts must refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned.

This Article accordingly proposes adding sentence reduction to current all-or-nothing remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. It argues that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.

Posted by Danielle_Citron at 04:16 PM | Comments (5) | TrackBack

The Fourth Amendment: Its History and Interpretation

I have a new book on the Fourth Amedment that I hope some of you might find useful. Due to the wide applicability of governmental intrusions–ranging from countless thousands of daily intrusions at airports, traffic stops, drug testing, obtaining digital evidence, traditional criminal law enforcement practices, regulatory inspections, and many other searches and seizures–the Amendment is the most commonly implicated and litigated part of our Constitution.
This treatise is designed to be an accessible and authoritative resource for scholars, judges, practitioners, and others on the Fourth Amendment. It comprehensively treats United States Supreme Court caselaw. It takes a structural approach to the Fourth Amendment, addressing foundational questions: What is a search? What is a seizure? What does the Amendment protect? Who does it protect? When is it satisfied? When does the exclusionary rule apply? The treatise is organized by topic so a reader can have ready access to current doctrine and is able to examine in additional sections how current doctrine developed. The historical events and the Court’s development of search and seizure principles provide context to and perspective on current doctrine.

It is published by Carolina Academic Press and additional information about the book, including the front material and how to order, can be found at www.cap-press.com/books/1795

Posted by Thomas_Clancy at 03:59 PM | Comments (2) | TrackBack

Big Breaks in the Palin E-mail Breach Investigation

The odds that the Feds will find the person who broke into Sarah Palin's e-mail account are considerably better than I had thought they would have been, because someone who claims to have committed the crime has bragged about it to the infamous 4chan image hosting site. (Quick CoOp aside, every day I better appreciate how the paper by new permablogger Danielle Citron--who first introduced me to 4chan--on Cyber Civil Rights will be a must-read in this day of 4chan and Jason Fortuny.) Although the posts have been deleted, Kim Zetter has reproduced them for Wired's Threat Level blog. First, the user known as "Rubico" bragged about how he had breached the Yahoo account by providing Governor Palin's supposedly private answers to the questions posed by Yahoo's password recovery scheme:

it took seriously 45 mins on wikipedia and google to find the info, Birthday? 15 seconds on wikipedia, zip code? well she had always been from wasilla, and it only has 2 zip codes (thanks online postal service!)

the second was somewhat harder, the question was “where did you meet your spouse?” did some research, and apparently she had eloped with mister palin after college, if youll look on some of the screenshits that I took and other fellow anon have so graciously put on photobucket you will see the google search for “palin eloped” or some such in one of the tabs.

I found out later though more research that they met at high school, so I did variations of that, high, high school, eventually hit on “Wasilla high” I promptly changed the password to popcorn and took a cold shower…

Oh, and about Rubico's screenshots? They apparently reveal the URL bar of Rubico's browser, which in turn reveals that Rubico had not been browsing Yahoo directly but had instead been using an anonymizing proxy service called Ctunnel. Good idea, right?, because Yahoo no doubt captures and preserves the IP addresses used to recover passwords. But although using Ctunnel may have been a good idea, advertising that fact on a screenshot, it turns out, was not:

Gabriel Ramuglia who operates Ctunnel, the internet anonymizing service the hacker used to post the information from Palin's account to the 4chan forum, told Threat Level this morning that the FBI had contacted him yesterday to obtain his traffic logs. Ramuglia said he had about 80 gigabytes of logs to process and hadn't yet looked for the information the FBI was seeking but planned to be in touch with the agents today.

Apparently, providing the screenshot in this case was a particularly dumb move. In another interview Ramuglia notes:

Usually, this sort of thing would be hard to track down because it's Yahoo email, and a lot of people use my service for that . . . . Since they were dumb enough to post a full screenshot that showed most of the [Ctunnel.com] URL, I should be able to find that in my log.

There are more lessons here than are worth listing. A few, after the jump:

For law enforcement:

• The pressure is on. Usually, you would be forgiven for failing to track a crime across the Internet, but if Rubico is the person behind the breach (and I bet you know already whether Rubico's claims match up with information in Yahoo's logs), you should be able to find the identity of Rubico in pretty short order. Many news outlets are now reporting that Rubico is a 20-year old college student in Tennessee whose father is a Democratic state representative.

For would-be Internet criminals:

• Don't brag about your crimes.
• If you're going to brag, brag only to people you know.
• If you're going to brag, don't post screenshots that give away important clues which make it easier to track you!
• Use more than one anonymizing proxy.

For webmail providers:

• As I said last time, people will be scrutinizing your security closely. After discussing Rubico's boasts, Ed Felten has concluded that although it is hard for a service to simultaenously give away accounts to any anonymous person who requests one while still maintaining robust password recovery mechanisms, "it's still surprising that Yahoo's recovery scheme was so weak."

For Gabriel Ramuglia, the person who runs Ctunnel.

• Expect a mixed reaction. On the one hand, many will celebrate your data retention policies for helping the feds get one big step closer to solving this case. On the other hand, other people will consider it a betrayal that you held yourself out as an anonymizing service yet stored this information at all. You don't endear yourself in the eyes of the latter group by moralizing about how people shouldn't be using your service to "conduct illegal activities."

For lawmakers:

• What I said last time. (For examples of people pointing out gaps in the law, see this and this. Oh, and Bill O'Reilly is pissed too.)

For the media:

• Be careful how you report this case. As best as I can tell, the 20-year old who is now having his name dragged through the mud has been linked to the Rubico posts through a series of connections being unearthed by bloggers. Reporters in the MSM seem to be repeating the conclusions of these bloggers without a lot of independent investigation. This guy may, for all I know, be rubico, but I have yet to read a single article that lays out a case airtight enough to justify such widespread dissemintation of the rumor.

Posted by Paul_Ohm at 11:01 PM | Comments (2) | TrackBack

Warrant Requirement for Historical Cell Phone Location Data

In an article by Ellen Nakashima, the Washington Post this morning reports that a federal judge in the Western District of Pennsylvania has ruled that the government must obtain a warrant based on probable cause of criminal activity before directing a wireless provider to turn over records that show where customers used their cellphones. This is apparently the first opinion by a federal district court on the issue.
To view the entire article, go here.

Posted by Thomas_Clancy at 09:02 AM | Comments (2) | TrackBack

Great Dissents in Fourth Amendment Cases

I want to thank Dan Solove for inviting me to be a guest this month. For those who have read my bio below or otherwise know my work, it should come as no surprise that I intend to discuss the Fourth Amendment in this space for the month. First some background (and a commercial).

The National Center for Justice and the Rule of Law (of which I am the director), a program of the University of Mississippi School of Law, has the Fourth Amendment Initiative, which promotes awareness of search and seizure principles through conferences, training, and support for selected publications. To implement the Initiative, the Center holds an annual Fourth Amendment Symposium to increase awareness of Fourth Amendment principles. The resulting articles are published in the Mississippi Law Journal as a special edition. Since we began this Initiative, we have had some of finest scholars in the country participate in our programs. The Center has also partnered with the National Judicial College, located in Reno, NV, to create the only national training program for state trial and appellate judges regarding search and seizure principles. Additional information, including articles and video presentations by many of the finest scholars in the area, may be obtained from our website, www.NCJRL.org.

The topic of the 2009 symposium, to be held (and webcast) on February 13, is one that I hope you find interesting: “Great Dissents in Fourth Amendment Cases.” Five dissents will be examined, including such seminal dissents as Justice Harlan's dissent in United States v. White, 401 U.S. 745 (1971), Justice Marshall’s dissent in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Justice O’Connor’s dissent in Atwater v. Lago Vista, 532 U.S. 318 (2001), and Justice Brandeis’ dissent in Olmstead v. United States, 277 U.S. 438 (1928). Expected speakers are: Professor Paul Butler of The George Washington University Law School, Professor Catherine Hancock of Tulane University School of Law, Professor Arnold H. Loewy of Texas Tech University School of Law, Professor Wayne A. Logan of Florida State University College of Law, and Professor Carol S. Steiker of Harvard Law School.

So, what makes a dissent “great”?

Depending on one’s point of view, there are many candidates for such designation, ranging from Justice Brandies’ dissent in Olmstead that first proposed privacy as a centralizing principle, Frankfurter’s defense of the warrant preference view in Rabinowitz and Harris, Brennan’s normative approach to privacy in such cases as Greenwood, to Black’s conservative views of the structure of the Fourth Amendment in Katz and Berger. Professor Catherine Hancock’s recent article, Justice Powell’s Garden: The Ciraolo Dissent and Fourth Amendment Protection for Curtilage–Home Privacy, 44 San Diego L. Rev. 551 (2007), is a wonderful treatment of that dissent.

Turning to a current member of the Court, Justice Stevens has served on the Court since December 19, 1975, and that term has encompassed the tenure of three different Chief Justices. He was written only 11 majority or lead opinions in Fourth Amendment cases, averaging one every three years. Nonetheless, that list is impressive: Payton; Walter; Summers; Ross; Jacobsen; Maryland v. Garrison; Horton; Richards; Ferguson; Groh; and Caballes. Within that list, however, is a mixed record of siding with individuals and the government. Indeed, Stevens has seen many changes on the Court and, in my view, some of those changes include his own views. More remarkable than the number of majority opinions, however, is the vast number of dissents and concurring opinions by Stevens, which are–by my count–74. He has expressed his views in virtually every major Fourth Amendment opinion since joining the Court, regardless of whether the government or the individual prevailed. Perhaps Justice Stevens’ most influential dissent was in California v. Hodari D., 499 U.S. 621 (1991). In that case, Justice Scalia, writing for the majority, redefined the concept of a seizure, marking the point at when a person submits to a show of authority by the police or use physical force. This contrasted to the commonly held view prior to Hodari D. that applicability of the Fourth Amendment was not dependent upon an individual’s actions and that it did not matter if the person stopped as a result of the intimidating police action. Justice Stevens, dissenting in Hodari D., mounted a significant defense of that view, arguing, inter alia, that “the character of the citizen’s response should not govern the constitutionality of the officer’s conduct.” Thirteen state courts, on independent state grounds, have rejected the Hodari D. majority’s approach based, in large part, on Stevens’ dissent. Does the mere number of his dissents put Stevens in a category of a great dissenter or does the persuasiveness of his views in Hodari D., as measured by the number of courts adopting that dissent, so qualify that dissent?

What other dissents should be characterized as “great?”

Posted by Thomas_Clancy at 03:04 PM | Comments (1) | TrackBack

Flight and Jury Instructions

First, I would like to thank Dan Solove and his co-bloggers for inviting me to visit. I've been slow getting started. Blogging, at least for me it appears, seems to be a bit like my scholarship: it tends to go to the bottom of the list of things to do when administrative tasks pop-up. As an Associate Dean, I've actually found that the summers in many ways can be busier than much of the rest of the year, much to my disappointment, which explains why I have been initially silent.

I thought I would start my blogging career by talking about something I at least now a little about: jury instructions and how they relate to the way in which juries actually evaluate the infomration in front of them. The New Jersey Supreme Court last week decided State v. Ingram, a fascinating (well, at least to me) case about jury instructions. The intermediate court of appeals had reversed Ingram's conviction for First-Degree Felony Murder and other related crimes on the ground that the trial court had erroneously instructed the jury as to the relationship between the mens rea required for accomplice liability and lesser-included offenses. The Supreme Court overturned this decision, but nonetheless affirmed the reversal of the conviction on the ground that the trial court had erroneoulsy given a "flight" instruction. It turns out that Ingram had shown up for a status conference two days before jury selection, but did not show up again. At the status conference, Ingram had learned for the first time that one of his co-defendants had pled guilty and would testify against him at trial.

The decision is interesting to me for two inter-related reasons. First, it is by no means clear to me that the instruction actually used really added anything to what the jury would have assumed anyway; in other words, real jurors were likely to draw exactly the inference that the supposedly erroneous instruction told them they could draw. Second, even if the instruction had some impact, I am not sure that it made a big difference in the outcome (although I think this point is more contestable). I'll explain both of these points after the jump.

As to the instruction itself, here is what the trial court said: "Now, with respect to [defendant], the State alleges that [he] purposely failed to appear at this trial in order to avoid conviction. The question of whether [defendant] purposely failed to appear at this trial in order to avoid conviction is another question of fact for you to determine. You should understand that mere absence from a trial doesn't in and of itself establish that the defendant purposely failed to appear in order to avoid conviction. If you find that the defendant, fearing that he would be convicted of the charges contained in the indictment, purposely failed to appear at this trial, then you may consider whether his failure to appear together with all the other evidence in this case is an indication or any proof of his consciousness of guilt. But keep in mind that failure to appear may only be considered as evidence of consciousness of guilt if you determine that the defendant's purpose in failing to appear was to avoid conviction for the offenses charged in the indictment and not for any other purpose. It is for you to decide whether or not the evidence of failure to appear shows a consciousness of guilt and the weight to be given to such evidence in light of all the other evidence in the case." (As an aside, the prosecutor also argued this point to the jury. But I do not think the prosecutorial argument is in any way critical, because I think that the argument would have been fine if the instruction had been fine.)

The New Jersey Supreme Court found that this was error, because there was no evidence, beyond Ingram's mere absence, that his absence was prompted by consciousness of guilt. That sounds good, except that the instruction does not require the jury to find that he had fled out of consciousness of guilt, just that they could do so if they thought they facts demonstrated this. What the New Jersey Supreme Court was really saying, of course, is that mere absence is never enough from which to infer flight out of consciousness of guilt: indeed, the court explcitly says that Ingram's absence, without other evidence, "is probative of little."

Here's the rub with that assertion, though. Well before the jury instructions, indeed right at the beginning of the trial, the jury had sent the judge a note asking where Ingram was. At that point in time, the judge instructed the jury that they should ignore Ingram's absence. But in reality, how likely is that? The jury knew Ingram was not there, and the members of the jury (or anyone else, for that matter), I think, could really only draw one of three conclusions: (a) Ingram had fled out of consciousness of guilt (or at least consciousness that he was likely to be convicted); (b) he was absent because of some sort of emergency (say medical or family) or (c) he was waiving his right to appear for reasons that had nothing to do with his guilt or innocence (perhaps he was protesting perceived injustices). If the jury members gave it any thought, (b) is pretty unlikely, because if that was the case, the jury would reasonable (and correctly) assume that the trial would have been delayed so Ingram could attend. That just leaves (a)& (c), and there does not appear to have been a suggestion that there was any reason to suspect Ingram was merely waiving his right to appear. Thus, the jury on its own was likely to draw conclusion (a), and the instruction (and related prosecutorial argument) only served to confirm what they would have assumed. What's more, it seems that their conculsion was correct and that his absence was likely to be at least more likely than not to point toward his guilt.

The problem, I think, is that the New Jersey Supreme Court has too cramped a vision of what information is before the jury at the trial. (This is a point that Ron Allen (Northwestern), among others, has been most vigorous in arguing in recent years.) The jury members all come in with their knowledge about the world and their own ways of processing information that is presented to them. The information presented by jury instructions (and even by formal testimony) may only be a minor part of the total amount of information the jury is using to decide a case. Here, Ingram's absence in court was information that the jury had, and they were likely to process that information in a way that was adverse to Ingram, regardless of what the trial court said. By focusing too narrowly on the jury instruction, the New Jersey Supreme Court has an artificially narrow view of what is going on at the trial.

Even if you think that the jury instruction (and related prosecutorial argument) did effect the jury in a way that was adverse to Ingram, and that drawing an adverse inference to Ingram was unjustified, there still is the problem of whether the instruction changed the result. The Supreme Court points to the fact that another co-defendant of Ingram (Moore) did appear at trial and was acquitted, despite the fact that there was evidence that Moore was more intimately involved in the crime than Ingram. That's true, except on the face of the opinion there is one big difference between Ingram and Moore: Ingram had confessed to the police his involvement (although he denied knowing that there was going to be a robbery or a homicide) and Moore did not; I could be wrong about this, but there is nothing I see in the opinion indicating Moore had confessed. Ingram's admission of invlovement in the crime (along with the mere fact of his absence) it seems to me is a much more likely source of his conviction than the instruction to the jury or the prosecutor's argument. What Ingram gets is a complete do-over on the trial, even though he is the one who decided to flee. It strikes me that this is a bit of an odd result.

Posted by Erik_Lillquist at 12:07 AM | Comments (1) | TrackBack

Talking to the Police

Officer Officer George Bruch of the Virginia Beach Police Department gives this very engaging lecture to law students about how police officers interview suspects. He has interrogated over 1000 suspects, and he discusses how easy it is to get a confession. The techniques he uses are quite clever. The basic message is that it rarely, if ever, helps a defendant to talk to the police.

Please note that Parts I, II, and IIII below are labeled parts 4, 5, and 6 on YouTube, as Officer Bruch was part of a panel.

Part I

Part II

Part III is below the fold.

Part III

Hat tip: BoingBoing

Posted by Daniel Solove at 06:43 PM | Comments (1) | TrackBack

Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: "Where the evidence 'captures only part of the incident and would provide a distorted view of the events at issue,' as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion." Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.

Posted by Jessica_Silbey at 10:57 AM | Comments (1) | TrackBack

One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”--and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here's how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line--

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it's best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.

Posted by Alice_Ristroph at 06:09 PM | Comments (1) | TrackBack

Do People Have a Reasonable Expectation of Privacy in Abandoned DNA?

A recent NY Times article discusses how the police are increasingly collecting DNA samples from suspects -- not with warrants or probable cause -- they are gathering it surreptitiously from the abandoned DNA that people leave behind:

The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.

Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.

On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as "surreptitious sampling," is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search. . . .

"Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court," said Elizabeth E. Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. "I don’t think a lot of people understand that."

Under existing Fourth Amendment law, if you abandon something or expose it to others, then you no longer have a reasonable expectation of privacy. So if you leave trash on the curb for collection, the police can rifle through it without a warrant or probable cause. See California v. Greenwood, 486 U.S. 35 (1988).

DNA is sensitive information in many people's books, but it is also very hard to keep contained. We leave traces of DNA everywhere we go -- in hair and skin we shed, in saliva, etc. It is quite easy for law enforcement officials to obtain our DNA.

DNA is one illustration of where the current Fourth Amendment regime doesn't work very well with information privacy. It works well with papers and things -- we can hide papers away in our homes or in bags, and we can have protection in our homes. But information in today's Information Age often is hard to contain. It is hard to tuck away. The result is that our personal information is increasingly in places where the police no longer need warrants and probable cause.

Posted by Daniel Solove at 10:46 AM | Comments (7) | TrackBack

Defending Oneself

Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.

The Supreme Court first recognized a constitutional right of self-representation in 1975. Since that time, many people (including members of the Court) have expressed skepticism about whether it is a good idea to give criminal defendants the right to represent themselves. The two basic concerns expressed by academics, members of the judiciary, and the popular press are first that criminal defendants will only hurt themselves if they try to represent themselves, and second that those who choose to represent themselves very likely are mentally ill and are choosing to represent themselves because of that mental illness.

I must admit that when I was in practice as a public defender, I initially shared those sentiments. After all, how could a defendant (unless s/he was a trained lawyer) possibly do as good a job as I could do? That view, however, was somewhat mitigated when I was appointed as standby counsel (a judge is permitted but not required to appoint standby counsel to act as a legal advisor to pro se criminal defendants) for a non-lawyer defendant charged in federal court with attempting to defraud the World Trade Center fund. He went to trial representing himself and raised a coercion and duress defense. For those who remember back to criminal law, you know how rarely that defense works. Much to the surprise of everyone, he was acquitted. Yeah. Shocking. Twelve jurors voted to acquit him. Suffice it to say that I certainly could not have obtained a better result for him.

That experience prompted me, when I entered academia, to try to assemble some data on pro se defendants, to see if our initial instincts are really supported by the data. The short answer is that they are not. While the data are relatively thin (not that many felony defendants actually represent themselves), the bottom line is that the data out there certainly suggest that pro se felony defendants don't do that badly in terms of overall outcome (particularly in state courts). Moreover, only about twenty percent of federal pro se felony defendants exhibited sufficient signs of mental illness to trigger a screen to determine if they were competent to stand trial (usually a pretty low threshold standard).

While I don't think the data establish that it is a good idea for defendants to represent themselves, I certainly think the empirical evidence calls into question our gut-level instinct that it is necessarily a bad idea for criminal defendants to self-represent. If there is no particularly solid evidence that the right of self-representation hurts criminal defendants, that leaves the question whether the right is sufficiently valuable that the Court should continue to recognize it and protect it against erosion. I have come to believe that the answer to this question is a pretty overwhelming yes because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine.

Once the Court recognized a right to counsel in Gideon, the government had to appoint counsel for indigent defendants who could not afford counsel. Those lawyers are paid by the government for their representation of the defendant. This raises (at least) two concerns in the minds of many defendants: first, many of the lawyers are paid very little, so the quality of state-appointed counsel can be pretty abysmal; and second, the lawyer is being paid by the government, and the lawyer therefore may feel some allegiance to the same government that is prosecuting the defendant. There is a lot of evidence that there is validity to both of these concerns. Stories of ineptness by court-appointed lawyers fill the federal reporters, and there also are many stories of lawyers who attempt to curry favor with prosecutors and judges by ensuring that their clients plead guilty so that they can continue to be appointed in other cases. Here is the problem. If there is no right of self-representation, a criminal defendant who is represented by ineffective counsel (whether that ineffectiveness stems from inability or conflict) has to sit there, essentially mute, while an agent of the government purports to speak for him. If the lawyer has not properly investigated the case, he may have no idea what actually happened. Unless the defendant testifies, however, he is resigned to sitting there listening to the lawyer completely botch the case. (I recognize that in theory, a defendant could argue on appeal that he received ineffective assistance, but the likelihood that he would prevail on such a claim is, to put it mildly, pretty close to nil). Worse yet, the defendant may well decide that he has no choice but to plead guilty, if he doubts that his lawyer will argue strenuously for him at trial.

As the debates about trial procedures at Guantanamo and before military tribunals have progressed, one of the key rights of criminal defendants that has been discussed has been the right to be represented by independent counsel. Inherent within our own system, however, is the risk that defendants will be represented by counsel that are not independent from the government that is prosecuting those defendants. The notion that the government could force a defendant to accept representation by counsel that he believes to be acting in the interest of the government, and could force the defendant to let that counsel speak for him, strikes me as sufficiently Orwellian that I have become a big proponent of the right of self-representation.

Posted by Erica_Hashimoto at 10:26 AM | Comments (7) | TrackBack

On the Colloquy: Jurisdiction and Climate Change

This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court's decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.

Last week, Professor Howard M. Wasserman responded to Professor Dodson's Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.

On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Posted by LR_NW at 09:57 AM |