Category Archives: Law: Criminal Law

A Day in the Park in Didsbury

I am currently in East Didsbury. Didsbury is a little village which has been subsumed into greater Manchester and now falls just within the outer limits of the city. Long known as a home to academics from the nearby University of Manchester, in recent years Didsbury, or at least West Didsbury which is the other part of town, is also gradually becoming something of a fashionable home to media figures of various degrees of fame. The formerly sleepy village center has long enjoyed a first-class cheese shop, the Cheese Hamlet, but in recent years has also accumulated an increasing number of nice restaurants with a variety of Asian and Mediterranean cuisines.

On Saturday we walked a few blocks to a local park which was the setting for the annual village fair. In addition to rides for the kids, there were dozens of booths either raising funds for good causes (mostly local schools) or publicizing good causes (everything from local history to Amnesty International and helping Darfur). What particularly struck me, however, was the large sign on the booth that had the most prominent location by the entrance, “Free the Miami Five”.

The booth, it seems, belonged to the Cuba Solidarity Campaign, a group that sports three web sites, and which has gotten very worked up about the trial of five Cuban agents convicted in 2001 of conspiracy and being foreign agents. From what I recall of the trial — being here on a slow and expensive dial-up link I'm not going to look up the details (but invite commentators to do so) — there were valid questions about whether a Miami jury could give alleged Cuban agents a fair trial, or whether the trial should be moved elsewhere. And, if I recall, not all the judges who looked at the issue were of the same view. And although, from what I recall, the basic mechanics of the trial were fair, a reasonable person could question the decision as to the jury. In fact, my knee-jerk reaction — not knowing the facts of how the actual jury was selected, which I'm sure might change my mind — is that a change of venue to somewhere less reflexively anti-Castro might have been a pretty good idea to ensure the fairness of the jury pool.

What's odd, though, is to pick on this case, of all the justice-related issues in the USA (much less the world), as the one to make an issue of in a park in East Didsbury. If I were going to try to get the good people of Didsbury worked up about a US justice issue, or a Cuba-related justice issue, I might start with Guantanamo. Somewhere not too far down the list we might have the treatment of political dissidents in Cuba itself. Or maybe the move in Florida to cut the pay of court-appointed defenders in order to save a buck and make sure that they can't afford to mount much of a defense. The “Miami 5,” for all that there may be a question about the underlying fairness of the jury selection for their trial, would not be near the head of my list.

I have no idea to what extent the “Cuba Solidarity Campaign” represents something genuine among the British soft left, or to what extent it is funded by the Cuban government or whatever remains of the Communist International. Despite its location, their booth didn't seem to be nearly as popular as the ones offering used books, or the various tombolas, or the one selling very good Indian snacks. Still, “Free the Miami 5” was a funny first thing to see at at the Didsbury fair.

Posted in Law: Criminal Law, Miami, UK | Comments Off on A Day in the Park in Didsbury

Stuart Green on Perjury Prosecutions

My law school classmate and nice guy Stuart Green is the Louis B. Porterie Professor of Law at Louisiana State University and has written a book called Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime. The explains why he's blogging at the OUPBlog on Sex, Lies, and Petroleum: Lord John Browne.

It's a strange case: the CEO of BP resigned suddenly after it apparently emerged that he'd lied in court about his relationship with a male prostitute.

Assuming that he did lie under oath, Stuart's conclusion is that the balance of factors suggests that Lord John Brown nevertheless should not be prosecutied for perjury.

Stuart's argument seems to me to turn on two things, one overt and one not mentioned. Here's the first turning point:

When asked whether he had had a sexual relationship with a 27-year old former male prostitute, Browne did what any 58-year old titan of industry would do: he lied. It seems unlikely that his perjury significantly hindered anything. As it happened, there was other, compelling evidence of Browne’s relationship with Chevalier, and it did not take long for the truth to come out. His perjury, therefore, did little to harm the judicial process.

Is that right? Browne did what any 58-year old titan of industry would do: he lied. And even if it is the case that standards of veracity among titans of industry are so low, or their reflex against admitting sexual shennanigans so well developed, must the legal system bow to it?

The second point, the one not mentioned, has to do with the identity of the perjurer. There is a strong argument that all, rich and poor, should be held to the same standard so that social position must not be a factor in the exercise of prosecutorial discretion. If fact, the Judge's Oath taken in the US makes it clear that wealth (and presumably social position) are not to be factors considered in the provision of equal justice under law.

But there's another view. Just as, as a practical matter, being a titan of industry gets you lots of advantages — deferenticaldeferential cops, a reservoir of credibility in court and so on, so too should those who abuse society's trust be made examples to the others. Stuart's analysis doesn't seem to me to factor this in at all.

I guess I should read Stuart's book to find out why…

Posted in Law: Criminal Law | 6 Comments

Tragedy at Va. Tech.

Virginia Tech today: A maniac with a gun, and lots of ammo.

Two sets of shootings. At least 22 dead, including students and the gunman. Washington Post says 32 dead and dozens injured.

Hug your kids tonight.

Posted in Law: Criminal Law | Comments Off on Tragedy at Va. Tech.

Two Pieces of Very Good Legal News From Florida

He was once known as “Chain Gang Charlie” Crist for his tough law and order stands, but in the face of strong troglodyte opposition from Florida Attorney General Bill McCollum, Florida Governor Charlie Crist has pushed through a set of reforms to Flordia's felon disenfranchisement rules. Now, instead of making it virtually impossible for felons to get their right to vote (and to hold state licensees for a wide variety of trades), it will merely be slow (15 years!) for non-violent offenders, and slow and difficult for violent offenders. This is a major issue as the state has almost a million persons who have been found guilty of felonies, and about half of them are black (although blacks are about 14% of our total population). That a Republican governor would do this, because it's the right thing, is amazing. Florida still remains well behind states with more civilized penal policies, but this is a huge step in the right direction. Details at the Miami Herald, Felon rights on faster track.

Also in today's news, a welcome and very powerful ruling by our Supreme Court. In Re: Amendments To Florida Rule Of Judicial Administration 2.420—Sealing Of Court Records And Dockets. (April 5, 2007) says in the strongest terms that state courts must not “superseal” civil cases in trial courts — ever. “Supersealing” was a procedure that removed any trace of a matter from the public docket, even its docket number and title. As the court notes, it was a set of practices “that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine.” The Court's decision does not prevent the sealing of substantive civil case records in appropriate cases after appropriate process. Also, the issue of criminal and appellate cases is left for another day, pending study by the appropriate committees (in criminal cases there are additional issues relating to protecting informants, for example).

A great day for the State of Florida! (And if the last election were held today, I'd vote for Crist.)

[Bonus good news: Condo tenant wins fight to keep mezuzah.]

Posted in Florida, Law: Civil Procedure, Law: Criminal Law, Law: Privacy | 4 Comments

Smart Prosecution or Too Smart?

Justice Building Blog, has an interesting item today, SHOOTING FISH IN A BARREL. Here's the nub of it,

The Feds are scanning the calendars and investigating cases where clients plead guilty to Carrying a Concealed Firearm, many times for Credit Time Served or a withhold and probation. The Feds are then, after the plea in state court, indicting the defendant for possession of a firearm by a convicted felon, where the penalty is a 15 year (or as they say in Fed land- 180 month) minimum mandatory prison sentence.

It's kind of hard to defend a client in federal court to a charge he has already pled guilty to in State Court.

On the one hand, this isn't technically double jeopardy as the law understands it (the federal offense has an additional element — being a felon — so it's not the same offense, nor an included one). On the other hand, it probably is double jeopardy as the rest of the world understands it.

Rumpole proposes conditional pleas (or not pleading at all) as a workaround. One commentator suggests not carrying a gun if you are a convicted felon. Opinions as to whether the federal prosecutors are acting reasonably also seem divided. There is something about the surprise element of punishment for an offense that the offender could reasonably think is a closed and adjudicated matter which I find troubling. And I don't much like the duplication of effort. But otherwise this is no worse jurisprudentially than a lot of stuff we accept for good reason, including federal prosecution of civil rights violations when states bobble the treatment of the underlying criminal prosecution.

Posted in Law: Criminal Law | 2 Comments

Gonzales Tries the ‘Pure Heart Empty Head’ Defense

The law as a rule frowns on the 'pure heart, empty head' defense, which is how we lawyers refer to claims that “I meant well; I didn't know it was wrong to borrow from the pension fund.”

Yet, amazingly, our Attorney General is now asserting a defense for the firings which is no more than that.

Gonzales: Firings were not improper Gonzales: What I can say is this: I know the reasons why I asked you — these United States attorneys to leave. And it — it was not for improper reasons. It was not to interfere with the public corruption case. It was not for partisan reasons.

[NBC's Brian Pete] Williams: To put this question another way — if you didn't review their performance during this process, then how can you be certain that they were fired for performance reasons?

Gonzales: I — I've given — I've given the answer to the question, Pete. I know — I know the reasons why I made the decision. Again, there's nothing in the documents to support the allegation that there was anything improper here. And there is an internal — department review to answer that question, to reassure the — the American people that there was nothing improper that happened here.

Got that? I had no role in the decision, I just signed off on it. I don't know how they came up with that list, but since I could never possibly have meant anything bad or partisan, and because I never had the brains to make any connection between the names on that list and high-profile Republican prosecutions, the public should give me credit for my pure heart regardless of whether there was anything in my brain.

Come on America. Leaving aside the rather dubious credibility of the claim that Gonzales is this clueless and dumb, can we afford an AG whose defense against charges of unethical and probably criminal activity is … blithering ignorance?

The Brits have a name for what Gonzales is claiming — “Nelsonian Knowledge,” based on the famous incident in which Admiral Nelson put a telescope to his blind eye so that he could say, “I see no ships signals”:

It is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know. If he does so, he is taken to have actual knowledge of the facts to which he shut his eyes. Such knowledge has been described as “Nelsonian knowledge”, meaning knowledge which is attributed to a person as a consequence of his “wilful blindness” or (as American lawyers describe it) “contrived ignorance”.
Twinsectra Limited v Yardley and Others, [2002] UKHL 12, at para. 112.

All this aside, given Gonzales's personal history as GWB's legal valet, it's hard to believe he lacked genuine, rather than merely Nelsonian, knowledge of what he was signing and why. Either way he doesn't deserve to stay in office; I suppose, though, the difference might matter to a grand jury.

Posted in Law: Criminal Law, Politics: US: GW Bush Scandals | 4 Comments