Articles Posted in Criminal Justice System

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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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Fake stash house robbery cases are an embarrassment to a civilized society.

Here’s what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

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It’s rare that a particular prosecutor is named in an opinion by a federal appeals court. Apparently the Department of Justice wishes it were more rare.

The Ninth Circuit issued a curious opinion last month, in United States v. Lopez-Avila.

Previously, the court of appeals had issued an opinion that was critical of a particular Assistant United States Attorney. The Department of Justice filed a motion asking that the Ninth Circuit remove the name of that prosecutor from the public opinion.

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The federal criminal justice system runs on pleas. If every person charged with a crime demanded that the courts give them the attention that the Constitution guarantees them, United States Attorney’s Offices wouldn’t be able to prosecute as many people as they do, and federal district courts would grind to a halt.

In the New York Times this week, Michelle Alexander, a law professor at Ohio State University – who wrote The New Jim Crow, arguing that our criminal justice policy is, in essence, a continuation of America’s legacy of not being so awesome about issues of race – wrote a piece arguing that criminal defense lawyers should band together and insist that all our clients go to trial to crash the system.

1226064_prison_cells_2.jpgThe Michelle Alexander piece has generated all kinds of attention, from geeky to professional.

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Hi. I know you normally come here looking for the very latest in mildly snarky commentary on what’s gone well for the defense in the federal circuit courts. Trust me, we’ll be back to that very soon.

I wanted to interrupt our regularly scheduled programming with a request for money this holiday season.

If you read this blog, you’re likely interested in how people are treated in our criminal justice system. One organization is doing a lot to improve things for people who have been convicted of a crime.

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Those tree-huggers over at the Wall Street Journal have published a characteristically liberal piece about how the federal government is throwing more of its citizens in prison for no good reason.

As the article starts,

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.” This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

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Over at the Huffington Post, Conrad Black writes, from prison, about his experience with the United States criminal justice system. (Spoiler Alert – he doesn’t like it).

Mr. Black was prosecuted for fraud by the United States government. He’s on the last few months of a prison sentence. Here are some of his thoughts:

Before this cataract of horrors began, I had known that there were some dodgy aspects to the U.S. legal system, and feared that the plea bargain system was essentially a bazaar for the exchange of inculpatory perjury for reduced sentences or immunities, a traffic that would lead to the disbarment of prosecutors in most serious jurisdictions.

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Judge Gauvey, a magistrate judge on the United States District Court for the District of Maryland has issued a lengthy, thorough, and important decision on the use of cell phone data by law enforcement just to arrest someone. The opinion is available here (thank you Volokh conspirators for the link).

Here’s the juicy bit:

the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts.

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In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they’re happy to avail themselves of what the law gives them. But I don’t know of many federal prosecutors who go out of their way to take away a defendant’s lawyer.

Then again, I don’t practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney’s Offices, they read Gideon narrowly.

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There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It’s perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It’s hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there’s a reason to think we’re different, and better, surely it has it’s roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn’t meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That’s to be applauded.