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.
Filed under: blawg Tags: criminal defense, death penalty, family, justice, LinkedIn, maryland, prosecution
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.
Filed under: blawg Tags: scott greenfield
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.
Filed under: blawg Tags: criminal defense, fifth amendment, LinkedIn, miranda, Supreme Court
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.
Filed under: blawg Tags: burglary, charging documents, criminal defense, LinkedIn, maryland, short form citation
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.
Filed under: blawg Tags: family, fear mongering, LinkedIn, sex offence, unneccesarily dramatic
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.
Filed under: blawg Tags: broken, LinkedIn, sentencing
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.
Filed under: blawg Tags: #HankSkinner, death penalty, governor perry, LinkedIn, texas
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.
Filed under: blawg Tags: appellate, career development, court of special appeals, LinkedIn, maryland
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.
Filed under: blawg Tags: constitution, LinkedIn, maryland, miranda, Supreme Court
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.
Filed under: blog Tags: memorial, wreaths over the water
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