Excellent article on Supreme Court Justice John Paul Stevens in the New Yorker. Several facts I didn't know before I read the article:
Stevens only hired one clerk, instead of the usual four, for next year. A key signal that he plans on retiring. On the other hand, he also received a commitment from 3 of his clerks from the previous year that they would stay on if he decided not to retire quite yet. So his options are open. He tells Jeffrey Toobin, the author of the article, that he'll make the decision in the next month.
As the senior justice of the Supreme Court, he assigns opinions when the chief justice isn't in the majority. That has made him the de facto chief justice of the left wing of the Court. It seems he sees himself that way as well. He's really pissed about a slew of decisions in the past few years. But he's especially mad about the Citizens United decision that has caused a kerfluffle between Chief Justice Roberts and the White House.
Stevens was at Wrigley field for the world series game where Babe Ruth pointed to center field with his bat and then proceeded to hit a home run into the center field stands. Justice Stevens is old. Which, I guess, is probably why he's retiring soon.
Here's Jeffrey Toobin talking about his article on NPR.
Nothing this week from the OR Supremes. Unless you care about water rights in the Klamath River Basin.
Oregon made the NYT. The story is about the backlash against early release (ie, increased good time) programs initiated in the face of looming state budget disasters. It even quotes the scare ads that were running all around our fine state: "A woman is asleep in her apartment. Suddenly she's attacked by a registered sex offender and a convicted burglar."
It seems to me that the bigger picture often gets lost in the political spin. The bigger picture is that we, as a nation and as a state, overuse prison as a penalty. This fact is true in a comparitive sense: the U.S. imprisons more people than all 36 of the largest European populations combined (including Russia). It's also true in a historical sense: for the first time, more than one in 100 American citizens are incarcerated. Oregon is no exception. In fact, Oregon spends a greater percentage of its general fund on incarceration than any other state in the nation.
But most importantly, we overuse prison in terms of its efficacy. Prison is less effective than other options in reducing crime: the data is clear that increasing good time and strong community supervision reduce recidivism. This is particularly true in a dollar for dollar comparison. Prison is expensive. Of course, prison is effective in warehousing people separate from the community. So where we decide that the defendant is a dangerous person who needs to be warehoused, prison makes sense. I don't know anyone who isn't okay with locking up for a very, very long time the perpetrator from the scare ad above - the rapist who breaks into homes and attacks women. Assuming he's found guilty. But lets not kid ourselves about the point: it's not to reform the person and it's not to deter crime. Prison has very little reformative or deterrent power. It's to warehouse the person and fulfill our human need for vengeance.
For defendants who aren't predatory, the decision isn't between saving money and community safety. Money and safety are on the same side of the equation. The decision is between, on one hand: saving money, increasing community safety and doing what's right and humane. And, on the other hand, fear.
You should read this article by Jeffrey Bellin, an assistant professor at SMU's law school. It first reviews the growing movement to reform the criminal justice system so juries know what the punishment will be if they find the defendant guilty. Interesting stuff by itself. But then Prof. Bellin proposes a brilliant argument that hadn't occurred to me: evidence that a penalty is particularly harsh ought to be admissibile under an anti-motive theory. We take it for granted that prosecutors are able to get in evidence that the defendant had a motive to commit the crime. So why shouldn't we be able to enter evidence that the defendant had a motive not to commit the crime. E.g.: "It's a mandatory 90 months in prison - why on earth would he take that risk?" This is a particularly compelling point of entry because the single biggest argument for harsh punishment is deterrence. That is, people out there will know about the penalties and be dissuaded from committing the crime because of the harshness of the penalty. Exactly the argument for admissibility of the anti-motive. The more I think about it the more I like it. And there's little to lose by trying.
h/t Sentencing Law and Policy for pointing me to the paper.
Excellent case from last week out of the 9th, finding (1) that Miranda warnings were Constitutionally unclear when the Detective paraphrased and expounded on rather than read the standard Miranda form and (2) defendant's will was overborne by a mind numbing 13 hour, tag teamed interrogation where defendant denied guilt for most of it. It's a well written opinion that is worth the read: Doody v. Schriro. There's a nice summary of it at the Ninth Circuit Blog here. It's an interesting underlying case for a bunch of reasons, not least of which is that the same Detectives had already elicitied four false confessions on the same case from four innocent people whose charges were dismissed.
I no longer have time for fantasy baseball. . . Because I'm playing Fantasy SCOTUS!!! Who's with me? Anyone? No?
h/t Kasia Rutledge
I was just over at the Ethical Quandary and while I didn't find anything ethical to pass on, I did learn that Fastcase has an app for the IPhone that allows you to search Oregon statutes and caselaw. Free. It works pretty well too. Assuming you have an IPhone. As you may know, the Oregon State Bar has a subscription to Fastcase for it's members. You can sign into Fastcase through OSB on your real computer here.
So the 2010 legislature just changed the temporary increased good time measure that the 2009 legislature passed. The big question I keep getting asked is whether somebody sentenced in the near future will get 20% or 30% good time. Thanks to Gail Meyer, the infinitely talented OCDLA lobbyist, for pointing me in the right direction and confirming my reading of SB 1007. I think the easiest pattern to follow is the following sequence of dates:
2-17-10: If your client's crime was before this date, then 30% good time is still the law. Including for those sentenced in the controversial and politicized rehearings. If your client's crime is after this date, then 20% good time is what he'll get.
7-1-11: If your client holds off on committing a crime until 7-1-11 then he's back to 30% again. But there are a few less applicable crimes this time around.
7-1-13: Due to the original sunset date, crimes after 7-1-13 are back to 20%. But there will be studies and arguments and politics. And maybe, just maybe, 30% might become a limited but permanent thing.
The issue, as set forth in Defendant's brief, is: "Whether the Sixth Circuit expanded the Miranda v. Arizona rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged them, and then he remained silent for almost three hours."
The transcript from this morning is pretty fascinating. Ginsburg, Breyer and Sotomayor are immediately all over the Solicitor General, wanting to know how one can imply waiver of Miranda rights from more than two hours of silence followed by a confession, particularly since there is clear precedent that you can't infer waiver of Miranda from the confession itself. Finally, Scalia steps in to point out that the court has never ruled that 2.5 hours is too long; ie, that the question is really at what point it becomes abusive to keep questioning a person that has neither waived nor not waived. But then Sotomayor hits the nail on the head:
JUSTICE SOTOMAYOR: You want to change the Miranda rule to say: Tell someone their rights and unless they explicitly say "I don't want to talk to you," then they implicitly under virtually any circumstance haven't. That's what you believe the rule in Miranda and Butler and Davis sets forth?
To which Scalia responds that it sounds good to him:
JUSTICE SCALIA: Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is "I don't want to answer your questions"?
By my count, you've got Sotomayor, Stevens, Breyer and Ginsburg clearly supporting the Sotomayor position that Miranda requires a waiver of rights and Scalia, Roberts and Alito clearly supporting a rule that a person ought to have to say he doesn't want to answer questions if he doesn't want to answer questions. Despite his usual oral argument silence, I think it's safe to assume Thomas is with Scalia, Roberts and Alito. Which leaves Kennedy in the middle again. He asks questions throughout that seem to genuinely be attempts at discerning the best answer.
On the upside, I thought that the fact that Sotomayor used to be a prosecutor would mean that the right half of the court would have a deciding vote on criminal justice issues. That appears to be a mistaken assumption. My apologies to the former prosecutors of the world.
There is a mistaken belief out there that possession with intent to deliver is sufficient to prove an attempted delivery which is sufficient to prove a delivery. It simply isn't true. Per the always brilliant Ryan Scott:
This mistaken belief is based on a number of cases where the Court of Appeals held that evidence showing "possession with intent" is enough to survive a MJOA on a delivery charge. As you know, attempted delivery equals delivery. the word "attempt" means the same thing in the drug chapters as it does elsewhere, and therefore, guilt requires a "substantial step" towards delivery. Not just a step: a substantial step. So when the Court of Appeals decides that possession with intent is enough to survive MJOA, they are saying that a reasonable juror COULD find that possession with intent is a substantial step towards delivery. the coa is not finding that a juror HAS to find that it is a substantial step. A reasonable juror may in fact find that, under the facts of your case, it was a step, but a minimal step. For example, defendant had a little extra meth, after he'd consumed some, and thought that maybe he'd share it later with a pretty girl (no actual girl identified). When there's a jury instruction to the effect that possession with intent is an attempt it tells the jurors that they HAVE to find possession with intent is a substantial step. Prosecutors no longer have to prove a substantial step. Or more legalistically speaking, such an instruction relieves the prosecutor of the burden of proving an element of the crime (that a substantial step was taken). The following paragraph explains why this violates the due process clause, albeit in a very different context: The court held that the evidence was sufficient to support the convictions under Jackson v. Virginia. However, based on In re Winship, Sandstrom, and Estelle, the appellate court held that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the state of its burden of proof of an element of the crimes with which he was charged. The instructions were, at the very least, ambiguous on the question of whether the inmate could be convicted of murder and attempted murder on a theory of accomplice liability without proof beyond a reasonable doubt that the inmate knew that an accomplice intended to commit murder. The court held that there was a reasonable likelihood that the jury misapplied the ambiguous jury instructions. Relieving the state of its burden of proof on that issue was not harmless error. Saruasad v. Porter, 479 F.3d 671 (2007) So, what I recommend is a very brief memo, a page or two, that makes the argument above. I would submit it to the court when objecting to the instruction. When I speak to new lawyers, I try to convey the importance of memos, however succinct. Not only does it improve the chances of winning in front of the trial court, it dramatically improves the chances the appellate attorney will brief it. And if it wins on appeal, the vast majority of our clients are better off re-fighting a DCS charge three years from now.
There were 5 criminal justice bills that came out of the 2010 legislative session.
- New implied consent hearing procedures for DUIIs requiring the ALJ to "conduct the hearing by telephone or other two way communication device". But the person or police officer may request that the hearing be held in person. The bill is here.
- Victims rights for post adjudication proceedings here.
- A fix for last session's firearm rights restoration bill requiring that a petition for relief be filed in the petitioner's county of residence. See it here.
- Statutory authorization for a Veterans Diversion Court.
- The convoluted "fix" for the HB 3508 good time increase to 30%. It's here.
On the off chance you didn't know: in January, the values for the various theft crimes all went up. The bill is here.
Theft III = less than $100.00 (no longer $50.00)
Theft II = less than $1000.00 (no longer $750.00)
Theft I = $1000.00 or more
Theft by receiving is now treated the same as any other theft.
Theft of services continues to be classified by the same value levels as regular theft.
Ditto for fraudulent use of a credit card.
Criminal Mischief II = more than $500.00 (not $100.00)
Criminal Mischief I = more than $1000.00 (not $750.00)
QUESTION PRESENTED Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
That is the question presented in Jeff Fisher's new petition for cert to the US Supreme Court. Jeff Fisher of Blakely and Crawford fame. The Indiana Supreme Court ruled that a supervisor who didn't perform the lab test could testify instead of the person who did the actual work. Fisher, as expected, lays out a crystal clear argument as to why this is a bad ruling. Everything flows from the fact that the Constitution guarantees a defendant the right "to be confronted with the witnesses against him".
Suppose an expert testifies that Veronica Victim fits the SAP profile for someone who has been sexually abused. Suppose also that the SAP is a highly valid and reliable test which was normed on the exact same population as Veronica. That is, the test is a good one. In fact, the test is so good that 90% of the time when it says a kid has been abused, that kid has been abused. 10% of the time it says a kid has been abused, it's a false alarm. The kid has all the characteristic markers of abuse but for reasons having nothing to do with abuse.
What is the probability that Veronica Victim has been abused?
Most people would say 90%. The actual answer is that we need more information. We need to know how common sex abuse is in the general population. That is, we need to know the base rate for sex abuse. Without knowing that information we have no idea how many false alarms there are.
Assume that the base rate for sexual abuse is 4% and that there are 50 million kids in the nation. That means that 2 million kids have been abused and 48 million have not.
If you gave this test to every kid in the nation, it would accurately spot 90% of the 2 million abused kids. But it would also think that 10% of the 48 million unabused kids were abused. 90% of 2 million is 1.8 million kids. 10% of 48 million is 4.8 million. That means there will be way more false alarms or "false positives" than there will be kids who are accurately identified.
To find the actual probability that a particular person identified by the test as having been abused was actually abused you: divide the number of people accurately identified by the total amount of people identified by the test (accurately and falsely). Stated another way, you divide the number of people in the 90% by the number of people in the 90% plus the 10% of false positives. Here, we'd divide 2.8 million (the 90%) by 7 million (90% + 10%). 2.8 divided by 7 is .4. That is, there's a 40% chance that Veronica Victim has been accurately identified by the test. Not 90%. Less likely than a coin flip.
Now think about all the times that police officers take the stand and say that in their training experience they know this person is a drug dealer/pimp/prostitute/etc. because of behavior and details they've noticed. One problem is that officers only notice the people they actually arrest as pimps, not the people who they don't arrest. For various reasons one should be dubious of such an officer statement in any case.
But the bigger problem is that there are serious base rate issues here. Even if the cops unscientific profile is 80% accurate, the base rate for, say, pimps in the general population is very, very low. One in 10,000, maybe. So the 20% inaccurate will capture way more people than the 80% accurate. Assuming the aforementioned numbers, that means that in a population of 1 million people, the officers profile would accurately spot 80 of the 100 pimps. But it would misidentify 199, 980 average citizens as pimps. That turns out to be a very, very bad probability: .0004 percent chance that the actual person identified by the officer's test would be a pimp.
My point is that there are a lot of statements out there that we should be challenging as either irrelevant or as inadmissible scientific evidence. If there aren't numbers because it's not a real test, put some numbers to it so that it will become obvious that it's a really badly done study rather than the sort of experience and training we should trust.
When cases like Rodriguez (teacher hugging a student convicted of M11 sex offense) get prosecuted without remorse, is anyone really surprised that in such a climate, this case would be charged. Some teenage girls take pictures of themselves and send it to their friends. Sexting. Or, from a DA's perspective, Distribution of Child Pornography. Apparently the child in this case is both the victim and the offender. So now the teens are looking at lifetime sex offender registration, felony criminal records and potentially prison time. Frightening times.
Nothing but AWOPs from the Appellate Court this week. :(
Affirmed without opinion as far as the eye can see. Assuming you can't see any farther than 19 cases.
When I don't know the answer to a question, my first instinct is to reach for my iPhone and look it up on google. I don't need wifi or a real computer. All the world's information is there at my fingertips. Criminal records. Maps. Newspaper stories. Explanations of scientific concepts. Wikipedia.
You may be the same way. You and I with our googling instincts. You and I and most of the jurors who now sit on criminal cases. Sure, judges tell jurors not to look things up on the internet. But the bland instruction feels so 10 years ago - when looking stuff up wasn't so seamlessly integrated into our daily lives. I'm guessing it's a much bigger problem than any of us realize. But trouble signs are there and the media is starting to take notice, as evidenced by this recent Washington Post story. The Washington Post perked up when the Maryland Court of Appeals overturned a murder conviction because a juror looked up the definition of a word he didn't understand ("lividity" FWIW).
It seems to me that a much stronger instruction is in order. And, perhaps, an actual threat of contempt for particularly egregious situations. A not so egregrious situation would be one where a juror looks up the definition of a word or even a scientific concept to better understand the evidence. A really frightening situation would be one where the juror gathers evidence on the incident or the people involved in the incident. Like, for example, pulling someone's criminal record.
In any case, if there's information you're keeping out that is internet accessible, you should probably think through whether you want to request a strong instruction at the beginning of the case.
Direct from the interstate compact guru at DCJ (probation and parole):
I'm sure that word will get to you through my supervisors, but new rules will go into effect in March 2010. Although it has already been a rule (that has not been enforced), one of the biggest changes is at the time an offender requests a transfer via the Compact they will have to have any outstanding extradition fees (not just fees for the current case, but past as well) paid in full before we can initiate the request and submit the paperwork. A bigger concern however is per OAR 291-180-0275 beginning January 1, 2010, offenders wanting to transfer under the Compact MUST pay a $50 non-refundable fee to the Governor's Office Arrest and Return Account PRIOR to being allowed to leave OR. The payments are ONLY acceptable in bank money order or cashier's check made payable to the State of Oregon. It's most beneficial if the Offender brings the money order/cashier's check with them to their Intake appt, this way we know it's paid. As far as I'm concerned, we'll mail it for them. This application fee is not something the Courts have any authority to waive. This also applies to residents returning at the time of sentencing-we will not be allowed to provide them a travel permit and allow them to leave Oregon until this fee is paid. Additionally, this is over and above the $50 application fee this department charges and any outstanding extradition fees owed by the Offender. Given that it is about three weeks from implementation of the Governor's Office fee, please share this information with as many of your colleagues as you can. Please feel free to call me if you have questions. Thanks. Heather Fowler Probation/Parole Officer Multnomah County ACJ - Centralized Intake 421 SW 5th Ave, Suite 300 Portland, OR 97204
Did you know that you can make and save your own maps on Google maps? You can draw on them, link to them and use them in trial. Here's a quick one I made of the path from MPD to the courthouse: Courthouse to MPD. You'll need a free google account. Once you have an account, you will see an option for "my maps" whenever you visit google maps. Click on that and then "Create a Map" and the rest will be fairly obvious.