Love of justice

This post is some­thing I have been think­ing on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feel­ing that I could never defend crim­i­nals, and that if I went into Crim­i­nal Law it would be as a prosecutor.

Then I was intro­duced, through the eyes of cases skimmed dur­ing class and through the per­spec­tive of the Crim­i­nal Defense attor­neys I “met” through twit­ter, to the Crim­i­nal Injus­tice sys­tem of our country.

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Published on 07/02/2010 7:30 am.
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Scott Greenfield

Today is Scott Green­field Day.

I know it is because the blawgers I enjoy fol­low­ing have told me it is.

I have quoted Mr. Green­field exten­sively (or what counts as exten­sively for this blog) here, and it’s not a coincidence.

It’s also not a coin­ci­dence that he is one of the main rea­sons I have become so incred­i­bly inter­ested in crim­i­nal defense.

That will be all.

Published on 06/07/2010 9:27 pm.
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Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

Published on 06/01/2010 3:28 pm.
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One man’s anal retentiveness is another man’s freedom

In my Mary­land Crim­i­nal Prac­tice class this evening, the pro­fes­sor men­tioned an unre­ported opin­ion of the MD Court of Spe­cial Appeals that was issued on Tues­day, May 24th.

Par­en­thet­i­cally, this is an incred­i­bly inter­est­ing and seem­ingly prac­ti­cal class that is taught by Judge Dana Levitz, a for­mer State’s Attor­ney and head of the trial divi­sion for Bal­ti­more County and for­mer Md. Cir­cuit Court judge who is now the judge who deals with the ini­tial incom­ing prayers for jury cases from the Bal­ti­more County Dis­trict Courts. I plan on devot­ing an entire post to Judge Levitz and his phi­los­o­phy regard­ing his cur­rent position.

The opin­ion, Clark, Dar­rell Mau­rice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) sum­ma­rize, a first-degree bur­glary con­vic­tion which car­ried with it a 20 year prison sen­tence was vacated as a result of a slight, but incred­i­bly impor­tant, defect in Bal­ti­more County’s form first-degree bur­glary charge lan­guage.
The form lan­guage uses a short-form cita­tion to estab­lish the ele­ments of the crime, which I just learnt is per­fectly accept­able. How­ever, instead of cit­ing the statute within the charge, the cita­tion is recorded after the required con­clud­ing phrase of “against the peace, gov­ern­ment, and dig­nity of the State.”
The defense attor­ney moved to dis­miss the charg­ing doc­u­ment as defec­tive on this ground in pre­trial but the trial court refused, ask­ing how that could make any difference.

The Court of Spe­cial Appeals begged to differ.

Spec­u­la­tion as to how this will affect claims of inef­fec­tive assis­tance of coun­sel and whether this would or would not be counted as being charged in terms of dou­ble jeop­ardy were bandied about in class, but the most impor­tant thing Judge Levitz wanted us to get out of the case is how ripe with pos­si­bil­ity charg­ing doc­u­ments are for defense attorneys.

Like I said, this seems like a prac­ti­cal class.

Published on 05/27/2010 9:00 pm.
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Think of the children!

Sex offence is a treach­er­ous subject.

As a father, I am gripped by the slight nau­sea and imme­di­ate gut-reaction of want­ing to hurt some­one who hurts chil­dren. I’m okay with that. Child rapists are among the low­est of the low; that’s not some­thing I will change my mind about.

I feel sim­i­larly, if less vis­cer­ally, about a man who forces him­self on a woman — your stan­dard rapist.

If our laws were directed specif­i­cally at those mis­cre­ants, there wouldn’t be the (same) prob­lems we cur­rently have. Unfor­tu­nately, some­one, and I’m not sure who, decided that the only way to keep our chil­dren safe is to come down hard on sex offend­ers. Sex offend­ers has become syn­ony­mous with child rapists in the mind of the pub­lic, so any­thing done to and in pur­suit of sex offend­ers is fair game.

That by itself is wor­ry­ing, since even the low­est of the low have rights, but it just keeps get­ting worse.

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Published on 04/30/2010 12:43 pm.
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Sentencing anarchy

Sen­tenc­ing is hard.

I know, it’s an incred­i­bly dif­fi­cult line to toe; try­ing to bal­ance pub­lic safety, pub­lic opin­ion, vic­tims’ expec­ta­tions, deter­rence, reha­bil­i­ta­tion and equity. How much def­er­ence is due to any of those fac­tors? When politi­cians decide to get involved in the sen­tenc­ing, it mud­dies up the already murky pool.

There are some things, even among hard deci­sions, that should be no-brainers. If I were to ask you whether a con­victed crim­i­nal should get 5 or 15 years in prison, it’s not always an easy deci­sion to make. If I were to ask you if the leader of a vio­lent drug gang should receive a lighter or harsher sen­tence than a young woman who placed a 13-yr old boy’s hand on her “brasier-covered breast,” as Scott Green­field put it, that’s not such a hard decision.

One would think.

Yes, there is leg­is­la­tion that is in play. And yes, these are dif­fer­ent states. But this type of arbi­trary dis­par­ity occurs day in and day out.

I’m not offer­ing any solu­tions. I’m just point­ing out how bro­ken it is.

Published on 04/29/2010 10:14 am.
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Hank Skinner

I sub­mit­ted my request at http://www.governor.state.tx. us/contact/

I am weigh­ing in on the impend­ing Hank Skin­ner exe­cu­tion. I believe it would be a shame to allow this to go for­ward for two main rea­sons.
The first rea­son is one of jus­tice. If there remains untested evi­dence that may excul­pate Mr. Skin­ner, not allow­ing it to be tested prior to his exe­cu­tion would cast a pall over all aspects of the crim­i­nal jus­tice sys­tem.
The sec­ond rea­son is one sim­ply of pub­lic rela­tions. Allow­ing a 30 day reprieve, solely for the pur­pose of test­ing the DNA, seems like such a minute ges­ture to com­bat the seri­ous pub­lic­ity issue that this has generated.

Please make the right choice, and help guide any oth­ers nec­es­sary in mak­ing that choice.

Moshe Glick­man

Published on 03/24/2010 9:46 am.
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Abbot v. MD

Over a year ago, I helped a local attor­ney on a crim­i­nal appel­late case. I did some legal research and helped draft the argu­ments for the client’s appeal to the MD Court of Spe­cial Appeals.

In Octo­ber, I sat in the court­room after meet­ing the client and lis­tened to oral argu­ments on the case. I was still involved enough that I was mouthing answers to the court’s ques­tions from my seat against the wall.
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Published on 02/26/2010 9:35 am.
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Thoughts on Maryland v. Shatzer

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Green­field has writ­ten about it, as has Orin Kerr.

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Published on 02/25/2010 10:23 am.
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Wreaths over water

Scott Green­field over at Sim­ple Jus­tice posted today about the cus­tom of lay­ing wreaths on the graves of those who have made the ulti­mate sac­ri­fice for their coun­try, thanks to a pro­gram called Wreaths Across Amer­ica.
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Published on 12/16/2009 11:44 am.
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