21 September 2019

CATO Institute Fun and Games

Back when I was much more active on this blog I had a semi-relationship with CATO. I think they viewed CrimLaw as a pretty decent place to get some of their ideas and papers publicized. As for me, I felt obligated to support any organization which adopted a character from a Pink Panther movie as their raison d'être.

Anyway, the good people over at CATO still send me notices about various seminars that they have going on and I finally bit and went to last week's seminar on Constitution day. I cleared my calendar for the first part of the week, reserved a room at a Bed and Breakfast in Loudoun County, woke up Monday morning and started driving. 

Eight hours and two traffic jams later, I arrived at a Bed and Breakfast in the middle of nowhere and hunkered down for a night of finishing off a post on my other blog about salaries and realities in professional women's sports. In the morning I got up and headed into D.C. It should have taken an hour. So, I got to CATO two and a half hours later - just in time to miss the opening remarks.

The first speaker addressed the sole issue of the day that had anything to do with criminal law: Timbs v. Indiana. That one made a splash amongst the legal community where I practice because it characterized civil forfeitures against those who do criminal acts (most commonly drug dealers) as a fine, subject to the ban on "excessive fines" under the 8th Amendment. Listening to Brianne Gorod talk it became clear this case was basically just about whether the 8th Amendment was incorporated under the 14th. It was the first time it broke through into my conscious that Indiana apparently never argued it was a civil taking instead of a fine.1 That's interesting. I long ago learned not to expect practical instruction from this kind of seminar, but I did find myself wishing for some practical guidance on (1) whether there an argument that forfeitures are not fines that just wasn't raised by Indiana, and (2) what the ratio is of provable drug dealing to amount of forfeiture before it is excessive.2

The lecture by Eric Baxter on the Court's shift in American Legion v. American Humanist Association away from the Lemon Test to "retaining established, religiously expressive monuments, symbols, and practices carries a presumption of constitutionality" was interesting. The Court suggested that the presumption could be overcome by showing discriminatory intent or an effort to deliberately disrespect other religions or the irreligious. It will be interesting to see where this shift carries American jurisprudence. 


The rest of the day was filled with presentations on mildly interesting cases, but nothing so cool or relevant that they need to be discussed here. And then came the panel discussing upcoming cases for the pending term. Elizabeth Slattery raised an interesting case out of New York where the city basically forebade the carrying of a legally owned pistol outside of one's residence except to seven firing ranges in the city. As was quickly pointed out, the law was so draconian that a gun owner couldn't legally take their gun with them when they moved their residence. The law was challenged and the city won in the trial court and the 2d Circuit. However, once the Supreme Court took the case the city purposefully changed the law so that they could claim the plaintiffs had gotten what they wanted and the case would become moot - pretty clearly done because they realized the law was unconstitutional and they were going to get trounced in the Supreme Court.3  So now, the city's going to argue that the Court should drop the case and the plaintiffs are going to argue "So, what do we do when they put the law right back in place a day after you dismiss for mootness and point to the 2d Circuit's decision as proving that it's constitutional?" It'll be interesting how the Court will react to such a blatant attempt to manipulate its procedure to avoid a decision on the merits.

I didn't stick around for the final speech because I was trying to get back to Loudoun in time to meet up with an old buddy. It didn't work out because Google Maps ran me around D.C. for an hour before I finally escaped. It kept telling me to take turns that would have required my car to helicopter over three lanes of traffic and then demanding I do u-turns which would have required me to spin the car around like I was one of the Duke boys. By the time I got back to the Bed and Breakfast it was well and truly dark and I had to drive home the next day so I ended up just hunkered down.

And then came the nine hour drive home the next day in which I purposefully chose to drive secondary roads for the scenery - which sounds like a great idea until you're in the middle of nowhere and your car has been pinging "LOW GAS" at you for the last ten miles . . .  But finally, I made it back home where people don't wear ubiquitous, overly expensive dark suits and have phones glued to their ears. Home sweet home.

It was an okay experience all around, but unless I get drafted into service as a presenter (unlikely for a poor country bumpkin lawyer) I think I'll watch the online stream next year.


--------------------------  

1 I've heard this rationalization in Virginia for a long time and occasionally wondered how it doesn't run afoul of the takings clause in the 5th Amendment - not enough to research it thoroughly though.

2  Yes, I know that there will probably never be bright line, easily applicable standard here. This sort of thing practically begs for a totality of the circumstances analysis. Still, a man can dream.


3
 There has been a feeling for a while now that the governments and lower courts in anti-gun areas such as NYC, Chicago, D.C., and California have been blatantly ignoring the Supreme Court's direction on firearms and allowing regulations, ordinances, and statutes which render the ownership of firearms a mere potentiality. You're going to have to do your own research to confirm or deny that proposition.

10 September 2019

Constructive Flight

Judge Smith is not happy.

Defense attorney Greene is asking for the eighth continuance in the case and Judge Smith isn't having any of it.

"We were scheduled for a jury today. Tell me why we aren't having the jury and why I shouldn't reschedule the jury to start tomorrow?"

Attorney Greene: "Judge, my client told me two days ago that there is a document at Tiny-Local Bank that I'm going to need for this case."

Judge: "The last continuance in this case was three months ago. Why did she wait to tell you until this week?"

Attorney Greene: "Judge, she told the attorney who represented her in district court before the preliminary hearing. She thought when I replaced the other attorney that I got that information."

The Judge looks entirely unconvinced. "You've been her attorney for the last nine months. She didn't tell you about any of this vitally important piece of paper until three days before the trial?"

Attorney Greene: "Umm, Judge, I . . ."

[Quick conference with client]

Attorney Greene: "Judge, my client wants to address the court."

Judge Smith looks skeptical but nods his head.

Client: "I told my first attorney. Then she moved to Canada and you gave me this'un. I met with him when that first happened and I told him about the stuff at Tiny-Local. I didn't know he ain't got it until I asked him why this case ain't been throwed out, 'cuz, ya know, the stuff at Tiny-Local proves I ain't done it."

Judge looks really disgruntled now and engages defendant and defense attorney in a conversation wherein he tries to get someone to take responsibility for the vitally important missing document. That goes nowhere fast. Attorney Greene doesn't remember anything about a document and Client swears she told him months ago.

Judge Smith: "I think there was plenty of time for this paper to have been found. This is at least the third time this case has been scheduled for trial. If the paper was so important it would have come up before the last two trial dates. I think we should bring the jury in tomorrow and get this done."

Up to this point, I have been sitting at the prosecution table minding my own business. Only now, I'm faced with a Hobbesian choice. I can either scramble to get a jury put together before 9 a.m. tomorrow (sleep is for wimps) and let a possible constitutional issue get baked into the case or I can come to defense counsel's aid and possibly get my head chopped off. Being the adventurous (and slightly stupid) type, I stick my head right into that guillotine.

Me: "Judge, far be it from me to help a defense attorney dig his way out of a hole . . ."

Judge Smith's eyes' pin my soul to the back wall of the courtroom and clearly convey the idea that this is not the time for levity.

" . . . but, I'd rather not invite error . . ."

Judge Smith gives me a get real look. "I don't see any error here. This is something which the defendant had plenty of time to deal with and is raising only as she is required to go to trial."

Okay, it's pretty clear that Judge Smith believes this is just something being used to delay the trial. For what it's worth, I tend to agree with him. Unfortunately, you never know if an appellate court might go off on a tangent and staying up all night to prep, while doable, probably isn't a great idea. I need my beauty sleep (there are those who might argue I need a several year long beauty coma).

"Sir, if you think it appropriate you could find the defendant has committed constructive flight if you think that the defendant is playing games meant to keep the trial from happening."

At that, the judge's face turns thoughtful. The defendant gives me a quick, sharp WTF is wrong with you look. The judge takes a few seconds to turn some thoughts over in his head. Then he takes a close look at the defendant.

Judge Smith: "Mr. Greene, can your client pass a drug test?"

Client jerks like she's just been kicked and you guessed it, Client turned up positive for cocaine, alprazolam, and and buprenorphine. Judge Smith revokes her bond.

Client: "If'n I'm going to jail, I want my jury tomorrow."

Judge Smith: "No ma'am. Your Attorney needs time to get the document you need for your defense from Tiny-Local Bank. The docket is busy for the next month. We'll set this for the 22nd of next month. Good day, ma'am."

So Endeth the Story

06 September 2019

For Want of Moral Certainty

Once upon a time, the standard for guilt in a criminal case was "moral certainty." For instance, in Anderson v. Commonwealth, 83 Va. 326 (1887), the Virginia Supreme Court said of certain evidence "The most that can be justly said of it is that it merely excites suspicion against him, which is a very different thing from proving his guilt to a moral certainty." Since this was a case concerning circumstantial evidence the moral certainty language has to be carried forward into modern Virginia case law involving circumstantial evidence: "there must be an unbroken chain of circumstances proving the guilt of the accused to the exclusion of any other rational hypothesis and to a moral certainty." Taylor v. Commonwealth, JUN18 VaApp no. 0687-17-1 (U). See also, Nebraska v. Sandoval, 511 U.S. 1 (1994)(explaining that "moral certainty" instructions in the 1850's were the beginning/basis of the beyond a reasonable doubt standard). However, actually using "moral certainty" has fallen out of favor in modern jury instructions.

Why? Well, I'm certain all sorts of sophistic reasons have been given, but I think that the reality probably breaks down to two things. First, the assumption of a common morality fell out of favor in the universities and the relativistic viewpoint eventually became common and accepted amongst those educated in them so that it "moral certainty" became something considered at best poorly phrased and at worst harmfully anachronistic. That placed the judges and academics against it and probably those defense attorneys that didn't think it through too much. Second, the prosecutors went along with dumping it because "moral certainty" comes across as a much higher standard than "beyond a reasonable doubt" no matter how many times we're told they are the same thing.

So, how do you deal with the relatively more benign "beyond a reasonable doubt" standard if you want to beef it up? CrimProf Blog points to an Article set to be published in W&L Law Review which has a prescription for this by Michael D. Cicchini: Reasonable Doubt and Relativity. In it, Mr. Cicchini provides an interesting study he has done in which he shows that instructing jurors on lower civil standards in comparison to beyond a reasonable doubt raises the point at which a juror is willing to convict. I leave it to people more adept at statistics and procedures of conducting a study to address his methods, but I'll say that his result feels right (not always a perfect barometer, but often all we truly have). I was going to say I didn't think the case he presented to his study group could make it to a jury past whatever motion a particular jurisdiction uses to show legal failure of the evidence (motion to strike, directed verdict, judgment as a matter of law, &cetera), but I guess if the prosecution got leave to call the victim as a hostile witness it might pass muster. In any event, whether the case was legitimate isn't the point. The differences in the levels of confidence needed for a conviction with and without contrasting beyond a reasonable doubt to lower civil standards is the point.

As best I can tell, a majority of those not given an instruction comparing the standards (Group A) were confident of guilt at somewhere between 60%-70%. A majority of those given an instruction comparing the standards (Group B) were confident of guilt at somewhere between 70%-75%. I really wish this study was more large scale and granular. While it confirms my beliefs, I don't know how strongly.

I agree that the comparison should be pointed out to the jurors. In fact, back in the beginning of time when I was a defense attorney, I had a whole spiel I either used in voir dire (remember Virginia does mass voir dire) or in closing starting at reasonable suspicion, going through probable cause, emphasizing preponderance, and pointing out there was even a higher standard than that - clear and convincing - before we even start to talk about beyond a reasonable doubt. More important than my agreement, the courts of Virginia agree that the comparison should be pointed out.
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt.
 (From Jury Instruction on Conviction Standard)
It's not exactly what Mr. Cicchini is asking for, but it's pretty close.

However, I think Mr. Cicchini is particularly wrong on one point. If we are going to bracket beyond a reasonable doubt from below, we need to provide the bracket from above as well. I guess this is where I as a prosecutor offer my "poorly reasoned, kneejerk complaints."😎

GO BUY HERE

The upper bracket is needed because there is always the possibility that space aliens landed in the backyard and stole the money that grandma kept in the safe rather than grandson Bobby (to whom all the evidence points). There's always something a juror can fasten upon such as "He's a Taurus and if the moon was in the third quadrant he would have too involved with romance to rob a bank." These are not reasonable doubts.

Of course, a defense attorney will come up with better hypotheses than those, but if he's competent he'll come up with something. Standing pat on a "they didn't prove it good enough" defense is an extremely dangerous place to be and if you want to talk about something that would probably drop the level of confidence a juror would need to convict this is it. And, no, I'm not saying a defendant has a duty to produce evidence or explanation. I'm just talking about realities in front of a jury and I've seen plenty of good defense attorneys stand in front of jurors without having put on a lick of evidence and weave a tale of possibilities in and out of the prosecution's evidence.

The jury has to determine if any doubts it comes up with itself or is fed through the good offices of the defense attorney are legitimate. Nowadays, as a prosecutor I bring up in voir dire or closing argument the difference between "beyond a reasonable doubt" and "beyond all possible doubt." Once again, more importantly, the courts in Virginia point this out to juries.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt.
(From Jury Instruction on Conviction Standards)
Mr. Cicchini devotes a small section decrying this, but I think the Virginia jury instruction is solid. Of course, eventually the jury sorts out which doubts are reasonable or not. This instruction merely informs them they have to stick to those doubts which are reasonable. It's the defense job to push the "beyond a reasonable doubt" standard as high into the stratosphere as it can and I don't begrudge them that. It's the job of the judge, through jury instructions, to tell jurors that they don't have to go as high as the defense would like them to. Could the instruction be more concise? Probably not. Lawyers aren't capable of writing anything concise. I'm pretty sure it's somewhere in the Bar's ethics rules. If the jury instruction just said "You shall neither consider nor create explanations that are unreasonable in determining if someone is guilty beyond a reasonable doubt" anybody could understand it and we wouldn't have things to quibble over.

And on a slightly different point . . . 

Let's be honest, while we lawyers do tend to quibble endlessly over jury instructions, they are far from the most important factor in the outcome of a case. It's my opinion that quite often the primary factor is the potential jury pool. Trials in an affluent suburb are going to get different results than those in rural farm country and both of those are going to get different results from a jurisdiction where there's a lot of impoverished, unemployed former coal miners and their families getting checks from the government.

Next time you think that jury instructions are terribly important, sneak a peak at the jurors as they are in minute fifteen of jury instructions being read at them. Then explain to me how terribly important it was that y'all argued for twenty minutes over the placement of that comma in the instructions. It's fun to argue all these points, just don't lose track of the truly important parts of trial craft.

03 September 2019

The Indeterminate Zone (Sentencing with Parole Baked In)

In the 1970's a man killed a police officer in NY and was sentenced to 25 years to life in prison. After several attempts to gain parole, the Parole Board finally decided to award it to the man. The wife of the police officer tried to intervene to stop the killer of her husband from being released. She failed.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He's not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia's does, I'd agree. Unfortunately, it does not. NY exists in the indeterminate zone (That's the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn't turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

Unfortunately, this all happened in New York and that meant the entire thing was subject to a determined indeterminate sentence. As best I can tell looking at NY Penal Law Art. 70 sec 70.00 (a little confusing because they were amended 01 SEP 19), there wasn't any choice in the judge's sentence. Under subsection (2)(a) "For a class A felony, the term shall be life imprisonment." Under subsection (3)(a)(i)(A) "where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years." It doesn't look like the judge had any choice in his indeterminate sentencing.1

Anyway, baked into a system of indeterminate sentencing is a long term process of determining the sentence. The sentencing isn't actually done by the judge. The legislature gives the judge parameters within which to sentence. In some cases, the judge may narrow the parameters of the sentence even further. The people who determine what the sentence should be within those parameters are those sitting on the Parole Board. Effectively, the Parole Board sentences. In the end, it is the organization which determines when the damage to victims and threat to society is overbalanced by how much the defendant has reformed or at least become less of a threat to society.

The argument in favor of this kind of sentencing is that it gives an incentive for the convict to reform and make himself into a person who should be released back into society; the quicker he reforms, the quicker he gets back. The problem is that in order to figure out where the balance stands each time a person comes up for parole there must be another sentencing. Thus the need for the victim to testify each time. It seems, from what I can find on this case, that NY handles this basically through a review of paperwork and does not have or allow the victim come in to verbally testify each time; it only allows her to send in a report of her condition as a result of the crime. In any event, every so often the scab gets torn back off because the victim has to fight again to keep the convict in prison.

In the end it's a terrible system that builds in uncertainty, almost assuredly has created a massive bureaucracy to carry out the Parole Board's function, and causes continuing harm to victims because there's a yet another sentencing hearing every year or two. And yet, as long as this system exists and there is a perpetual sentencing process, the victim should be allowed to testify in it each time the balance is weighed. Who knows? She may have decided that her religious beliefs require her to forgive the convict and she won't be rabid about keeping him in prison. That wasn't the case this time, but I'm sure people would whine if she were forbidden from saying the convict should be released.

Better yet, scrap the indeterminate sentencing system and provide clarity in sentencing and closure to victims.2


1 Yes, I know that I probably got this at least partially wrong. NY has a complex statutory system that doesn't seem too terribly well organized. This poor old Southern boy just can't keep up. And my lack of knowledge of the intricacies is beyond the point anyway. Quit wasting your time reading this and go back up to the argument.

2  Yeah, I know it won't happen. When's the last time anyone in NY paid attention to someone in the flyover part of the country - unless, of course, they want to overpay to steal someone from our baseball team.

01 September 2019

Sexting is Not Only Stupid - It Can be Criminal

David Post, over at Volokh, is shocked, shocked! that a minor who films herself preforming a sexual act and sends it to others is distributing child pornography. Despite some of the interesting comments that followed the article, I don't think anyone who practices criminal law was terribly surprised by the ruling. On the legal merits, it's 100% correct. You just have to wonder why it was pursued.

For a long time, sexting among minors has been a nightmare for prosecutors. The scenario usually goes something like this: Mary, 14 years old, has found her true love, Bobby, 15 years old. Mary sends him all sorts of pictures of herself nude or semi-nude. Six months later she finds her next true love, Lawrence, and dumps Bobby. Bobby then spreads the pictures far and wide. The school gets involved (somehow the school always gets involved) and Mary's mother is on the warpath. She wants me to hold Bobby down while the investigating deputy drives a stake through the heart of the boy and then she wants him burnt alive and buried in ground that is specifically unhallowed and then she wants him dug up and sentenced to life plus cancer in prison.

As a prosecutor, you agree something should be done. However, spin it as you might, the boy's not the only party guilty of the distribution of child porn here. And, let me tell you, I'd rather be in a cage with an enraged gorilla than explain to another mother that if Bobby's guilty of felony distribution of child porn so is her darling baby girl. After all, those pictures didn't magically appear on his phone; they came from somewhere and they're pretty obviously selfies when the girl is taking a picture of herself in the bathroom mirror with the phone in hand. On top of which, tagging a young, stupid boy with a felony may be a little harsh in this situation, although something needs to happen to him.

The Virginia General Assembly helped with this quite a bit when it created a revenge porn misdemeanor in 2017: 18.2-386.2. Now, in the situation above the boy can be brought before the Juvenile Court on a misdemeanor that will disappear at 18. The court can handle it and Mary's mother will be somewhat mollified. On top of that, this is a much more proportionate handling of the situation.

It's not a perfect solution. Moms check their daughters' phones and find pics sent to a boy and go on a rampage demanding the boy be punished. Boys get pictures from girls and send them out to their buddies well before it could be characterized as "revenge." The only way to solve this problem entirely would be to make it illegal for anyone under eighteen to possess a cell phone. Or maybe legislators could write careful exceptions to the child porn statutes for those under eighteen (don't want to make 15-17 year olds child porn cutouts or forgive the 17 year old who solicited pics from 30 girls and published them all).