Category Archives: Law: Criminal Law

A Real-Life Perry Mason Moment

Posted on December 2, 2005 by Michael Froomkin

I don’t know how many people are initially attracted to a career in the law because of the mystique of the courtroom moment of truth, the largely fictional stock-in-trade of courtroom dramas and TV shows such as Perry Mason. I wasn’t one of them myself (from the beginning I was 2/3 policy wonk at heart with a minor in deep theories of everything), but one meets lots of them in law schools (although far more among the students, who presumably go into trial law, than among the professoriate), and it’s easy to understand the attraction.

Real life, of course, never serves up such moments. Never? Well, hardly ever…and when it does they can be quite beautiful: Snagging a Rogue Snitch – Los Angeles Times.

Posted in Law: Criminal Law | 2 Comments

Condemned By the Company We Keep

Posted on November 12, 2005 by Michael Froomkin

Today’s New York Times carries an excellent and harrowing account of a Chinese father’s so-far-fruitless attempt to get Chinese justice for his son, now sentenced to life imprisonment, Desperate Search for Justice: One Man vs. China. The Chinese criminal judicial process is presented as an oriental version of Kafka: only limited rights for the defendant, and those are routinely ignored (e.g. right to see evidence, or to cross examine). In this case the father actually managed to win an appeal, but that just got the case sent down for re-trial, which again was a farce. And the second appeal was decided on political grounds — it seems that the specially selected panel thought that public confidence in the state required a scapegoat for the ugly crime, and here was a convenient scapegoat…

So my first reaction was that here was an object, and abject, account of why the rule of law matters, and why it is so important to protect the criminal rights of defendants. As the Times noted, the Chinese system had a 99.7 percent conviction rate last year out of 770,947 adjudicated cases. The Times suggests that “Conviction rates are also high in the United States, especially in federal criminal cases.” Indeed, “More than 90 percent of federal defendants plead guilty,” usually taking a plea bargain to avoid a trial. Those who elect a trial fare better: for the most recent period for which I could find data [circa 1986-2000, source: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005) (citing Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online tbl. 5.22)], “the average conviction rate for federal criminal defendants was 84% in jury trials, but a mere 55% in bench trials.” These numbers are impressive when you figure that, in addition to the people determined to prove their innocence, a substantial subset of the people who go to trial are those whom the prosecutors think are so guilty that they offered little or nothing in the plea bargain.

Unfortunately, it seems that on balance the average Chinese criminal defendant gets a better deal than what this administration wants to offer persons it labels “enemy combatants” and ships off to Guantanamo.

On the basis of no evidence, I’m prepared to stipulate that the Guantanamo prisoners get better food — at least when they are not on hunger strikes or attempting suicide due to years in solitary or near-solitary confinement.

There are several similarities, e.g. handpicked judges, beatings and other mistreatment of prisoners, life imprisonment (in China, post-trial, in Guantanamo includes pre-trial)

In other ways, the Chinese defendant gets, or at least can hope for, a better deal than under the “monsterous” procedures the US government offers alleged “enemy combatants” in Guantanamo: While it appears the Chinese rules often are not followed in practice, at least aspirationally they offer the hope of the following rights that the Bush administration does not want to see in Guantanamo: the right to know the charges against you, the right to know who your accusers are, the right to cross-examine prosecution witnesses (compare the facts of the Hamdan case), the right to call your own witnesses (compare the recent refusal to allow David Hicks to call expert witnesses), the right to proceedings in your own language or with competent translation, and (here we can blame the Senate too) the right to appeal the fundamental fairness of the proceeding. If nothing else, the railroaded Chinese defendants’ families have visitations rights. Not even human rights groups get that in Guantanamo. [Incidentally, for a real double whammy, consider how badly the US government treats Chinese nationals held in Guantanamo whom even the US thinks are innocent of any crime.]

Is this the level to or below which we wish to sink?

Not in my name, please.

Posted in Guantanamo, Law: Criminal Law | 1 Comment

We Still Can’t Trust The FBI

Posted on October 24, 2005 by Michael Froomkin

It seems clear from the FBI’s own internal reports that the its agents have not changed enough since the Hoover days. And that’s a great shame, and a big problem.

The FBI has important jobs to do — perhaps, in the GW Bush world of growing numbers of people motivated to hate us, more important jobs than ever. But given the amount of power we entrust to the FBI, when its agents break the rules they become particularly dangerous.

We are not talking about the occasional minor paperwork snafu here: what we seem to be facing (again) is a pattern and practice of ignoring the rules.

FBI Papers Indicate Intelligence Violations: The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

In one case, FBI agents kept an unidentified target under surveillance for at least five years — including more than 15 months without notifying Justice Department lawyers after the subject had moved from New York to Detroit. An FBI investigation concluded that the delay was a violation of Justice guidelines and prevented the department “from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a U.S. person.”

Kudos to my friends at EPIC for getting the goods. And kudos to the honest people in the FBI who didn’t sweep these violations under the rug. The trouble is…given the extent of the violations we are now learning about, one has to wonder how many others never even got written up.

The documents provided to EPIC focus on 13 cases from 2002 to 2004 that were referred to the Intelligence Oversight Board, an arm of the President’s Foreign Intelligence Advisory Board that is charged with examining violations of the laws and directives governing clandestine surveillance. Case numbers on the documents indicate that a minimum of 287 potential violations were identified by the FBI during those three years, but the actual number is certainly higher because the records are incomplete.

… in a letter to be sent today to the Senate Judiciary Committee, Sobel and other EPIC officials argue that the documents show how little Congress and the public know about the use of clandestine surveillance by the FBI and other agencies. The group advocates legislation requiring the attorney general to report violations to the Senate.

The documents, EPIC writes, “suggest that there may be at least thirteen instances of unlawful intelligence investigations that were never disclosed to Congress.”

I’d write more, but I have a hurricane to cower from.

Posted in Law: Criminal Law | 4 Comments

DeFede Won’t Be Prosecuted

Posted on September 9, 2005 by Michael Froomkin

Via Southern District of Florida: No charges for DeFede, I learn that “it is now official — the State won’t charge Jim DeFede for taping Art Teele’s last phone conversation.” Assistant State Attorney Joseph Centorino, chief of the public corruption unit, went out of his way, however, to say this was an exercise of prosecutorial discretion on the grounds that no one had been hurt, and DeFede both had good intentions and was cooperative afterwards:

However, it would be incorrect for anyone to assume from this result that Mr. DeFede’s actions, in tape recording a conversation without consent, were appropriate or justified. They were not. . . . It is the uniqueness of the tragic circumstances surrounding the death of Arthur Teele, and his last conversation with a trusted friend, which has led to the conclusion not to prosecute, rather any special journalistic privilege or legal exception accorded to Mr. DeFede.

(Not mentioned is that prosecutors are sometimes a bit shy of tangling with popular sympathetic journalists.) Although this doesn’t prove that DeFede’s actions were illegal, I think it supports my position in my debate with David Oscar Markus.

But the Herald remains adamant that DeFede is not getting his job back, more fools they.

Posted in Law: Criminal Law, Miami | Comments Off on DeFede Won’t Be Prosecuted

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Posted on August 31, 2005 by Michael Froomkin

Law professors tend to specialize. As a result, there are lots of legal things I don’t know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don’t know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don’t tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don’t currently have plans to publish on it in law journals.

But here’s an exception to my rule, this time on a subject I know I don’t know well: family law (and its criminal law counterpart). It’s just that I’m curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn’t mention the constitutional implications at all, nor it seems does much of the blog commentary, and I’d like to know why. (Just keep in mind as you read this that I’m prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn’t recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

In the so-called “Defense of Marriage Act” Congress purported to exercise its authority under the Full Faith and Credit Clause…to allow states to deny any credit to out-of-state marriages between same-sex couples. But–even assuming that this statute conforms to the Full Faith and Credit Clause (I’m dubious)–it’s clear that the DOMA doesn’t apply here. So what is Nebraska’s authority for denying the validity of the Kansas marriage? Is it ‘public policy’? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don’t have the same constitutional right to marry as adults, and this trumps the adult’s right not to be prosecuted for marital sex?

I’m presume there’s some good reason why the couple’s defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it’s not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

Posted in Law: Con Law: Marriage, Law: Constitutional Law, Law: Criminal Law | 18 Comments

DeFede: Just a Misdemeanor?

Posted on July 30, 2005 by Michael Froomkin

David Markus has been kind enough to agree to debate the DeFede case. He puts his case at the Southern District of Florida Blog and concludes that DeFede didn’t commit a felony, and in fact isn’t guilty of much.

Having thought about it some more, I still have little doubt that, as I said yesterday, DeFede committed an understandable, but nonetheless actual, violation of Florida law when he taped Art Teele’s telephone call. Having read David Markus’s contrary view, I’m willing to admit, though, that there is an argument that the offense may be just a misdemeanor, not a felony. (In which case the Herald’s firing makes even less sense.) Unfortunately, it’s not as wonderful an argument as one might wish.

Mr. Markus, thinking like a good lawyer, argues that the state wouldn’t be able to prove three essential elements of a felony charge:

1. DeFede recorded Teele’s calls, without Teele’s consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the call.

(Note that what the state can prove beyond reasonable doubt, and what we as observers are entitled to believe is likely are not, and should not be, the same things; I was talking about the latter–Mr. Markus has quietly and understandably tried to move the goal posts.)

Continue reading →

Posted in Law: Criminal Law, Miami | 10 Comments