17 February 2010

A Round Tuit (19)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.


The detention of prisoners captured during the "War on Terror", the legal classification of those prisoners, and the authority of the courts to limit executive authority as exercised in connection with those detentions has been a frequent topic for legal debate both here and abroad. So it was again this week. The ongoing detentions at Guantanamo Bay, Cuba have been tested several times by American courts, most notably by the Supreme Court in the Boumediene decision; each time, the detainees have been generally successful in challenging the government's authority to hold them as so-called "enemy combatants" either without trial or with only a trial before a military tribunal. As Lyle Denniston wrote this week, the latest Constitutional question raised by our Guantanamo policies has reached the SCOTUS' doorstep:
The question, simply put, is this: When does the judicial power to decide the legal fate of military detainees end so that, thereafter, their fates rest within the discretion of the Executive Branch (with or without action by Congress)? That question has permeated the case of Kiyemba v. Obama (08-1234) — the first direct test of Boumediene set to be heard by the Court — at least from the time it was granted last October. Sometimes, though, that case has seemed to focus on whether a federal judge could order a detainee transferred to live, perhaps temporarily, inside the U.S. But Friday’s order by the Justices, calling for new briefs, brought it front and center again.

The Court’s order directed lawyers on both sides to submit new papers by next Friday afternoon discussing “the effect, if any,” of recent developments involving potential resettlement of the seven Chinese Muslim Uighur detainees still involved in the Kiyemba case. That translates into the question of whether the Court should go on to hear and decide the case (now set for argument on March 23), or put an end to it without a ruling.

Already, the two sides in the case have telegraphed what likely will be the main point of their new briefs. The Uighurs’ lawyers have contended that recent developments do not remove the need for the Court to decide the case; the federal government’s lawyers have argued that those same developments show that the case has changed so greatly that it should simply be dismissed without a ruling.

If it is ended, the practical — and legal — effect could well be that federal judges not only will not have the last word on the Uighurs’ plea for release, but also may lose that authority for most if not all of the remaining prisoners at Guantanamo. Release, as a real-world possibility, would then depend upon what arrangements, if any, the Executive can make with other countries to accept detainees — and the outcomes will have little or nothing to do with whether the detainees were entitled, as a legal matter, to be released.
The treatment of those in American custody has often been questioned and criticized; while some of that criticism may be simply ammunition for larger criticisms of the American-led war efforts, several incidents in particular — including some questionable "extraordinary renditions" and the scandal at the Abu Ghraib facility in Iraq — have made closer scrutiny more necessary. Whether British national Binyam Mohamed's case is one in which torture occurred remains an open question, but the decision of the British courts to expose heretofore confidential evidence about his detention has rattled the British and American intelligence officials. Charon QC reported the initial decision and its subsequent revision, which relaxed some particularly damning language concerning MI5's knowledge of the conditions of Mohamed's treatment (their participation is not alleged). In his always-excellent "Rive Gauche" post, Charon framed the issue thusly:
The legal issue is clear. Do we abide by international law, the European Convention on Human Rights, our own domestic human rights laws or not? The moral issue, which causes the greatest difficulty for many is…should we when those who would do us harm disregard it? Reading comments from members of the public on Times coverage of the issue reveals many who regard Shami Chakrabarti, Lord Bingham, the Supreme Court, the Court of Appeal and a host of human rights lawyers as a thorn in the side of ‘good governance’ and some even go so far as to suggest that our courts are pro-Taleban and lackeys of the left-wing.

There are, whether we like it or not, many in this country who would happily allow our military and intelligence services to use ‘whatever means are necessary’ to destroy terrorism and if that includes torturing a few people to exact information which will save the majority, so be it.
Orin Kerr mentioned a recent case wherein a rather routine-sounding traffic stop and a series of ambiguous questions raised Fourth Amendment issues. In the incident, the officer asked six times for consent to search the motorist's vehicle, each time it seems using differently-worded questions. Despite these variations, five times the driver, Williams, denied his consent; it seems that these denials were not clear enough for the officer, as he repeatedly pressed Williams for a "yes or no" answer. The sixth time he was asked, "Do you mind if I look?" Considering his previous refusals, it's safe to surmise that Williams did mind — that is, he did not want his vehicle searched; pressed for a yes or no answer, he answered "yes". Despite the wording of his question, the officer took that answer as consent to the search and removed Williams from his vehicle.

Because video of the incident enabled the court to know the precise wording used by the officer, it was held that Williams' answer did not constitute clear and convincing evidence of his free and voluntary consent to the search: "The officer had not asked 'may I search' but rather 'would you mind if I look?' Answering 'yes' to the latter meant that appellant did mind." Scott Greenfield highlighted two aspects of the case — first, that the video evidence was necessary to overcome the officer's faulty memory of (charitable view) or faulty testimony about (uncharitable view) the traffic stop, and second, that the court arrived at its conclusion only with difficulty, having more-or-less ignored the five prior denials of consent to focus on the final exchange:
My impression is that Orin see this decision as a curiosity, a decision of interest. I see it as a brutal reminder of the failure of testimonial evidence by police officers at suppression hearings. What distinguished this case was that the officer's words were captured on video.


Aside from the rarest of instances, where an officer takes the stand and testifies to an exchange that actually involves the potential for a real exchange, there is no question that can be asked that will elicit anything other than the officer's conclusory testimony.

The only way to challenge this testimony is to put the defendant on the stand for a swearing contest. The hope, if you can call it that, is that a judge might be inclined to believe that defense counsel wouldn't be so foolish as to expose his client to cross-examination unless it was worth it, that the testimony is true. While this can happen, it's still a long shot. A very long shot. Few judges will take the chance of siding against the cops. They almost always go with the odds.


It's heartening to read about the decision, where the court parsed the language to recognize that the vagaries of a question fail to satisfy the requirement of demonstrating free and voluntary consent. It might have been more heartening had the court never reached the 6th attempt by the officer to obtain consent, the 5 prior failures to give it being more than sufficient to demonstrate that the defendant did not wish to consent, and that the continued pressure by the cop to get him to submit to the shield vitiated any possibility of free and voluntary consent. But I will take a good decision as it comes, even if it could have been better.
Despite his inability or unwillingness to understand Williams' denials of consent to his search, at least the officer in that case bothered to ask. Jeff Neuburger discussed a case pending in the federal courts in Philadelphia which may establish the FBI's right to receive individuals' mobile phone location data from service providers without demonstrating the degree of probable cause required by the Fourth Amendment or allowing notification of the those individuals:
The many millions of cell phone users in the U.S. may not realize that their phones are giving away their location about every 7 seconds when they receive and return a “ping” from the nearest cell phone tower. A single “ping” indicates that the cell phone is within about a three-mile radius from the tower, but in metropolitan areas in which cell phone tower signals overlap, triangulation of these pings from multiple towers can narrow that down to about fifty feet.

Not only are subscribers likely unaware that this data is being generated in the first place, they are also unlikely to be aware when their data is actually obtained by law enforcement authorities. Unlike a law enforcement search of a home or office where police officers show up in person and serve a warrant on the occupant, a warrant or other order seeking the turnover of cellular subscriber data is served on the carrier, which has no obligation to notify the subscriber that such a demand has been made. On the contrary, such orders and requests often include a gag order prohibiting disclosure and the proceedings by which they were granted are often sealed from public access.
If the Fourth Amendment seems to be on shaky ground this week, things aren't looking brighter for the Fifth Amendment, at least in Summit County, Ohio. Paul Kennedy reported the application of a questionable law in that County:
Upset that motorists suspected of driving while intoxicated weren't cooperating with police and providing incriminating evidence (i.e. blowing into the state's breath test machine), Summit County (OH) Prosecutor Sherri Walsh authored a bill making a crime for a motorist to refuse the breath test.

Vitaly Simin became the first person prosecuted for and convicted of tampering with evidence because he refused to blow. He was sentenced to three years in prison for that and his sixth DWI conviction.


Refusing a breath test is not tampering with evidence. The evidence of Mr. Simin's intoxication consists of the officer's observation of Mr. Simin's driving, the smell of alcohol on his breath, his admission to drinking, any other observations that might be consistent with intoxication and how he did on any police coordination exercises that were administered. Mr. Simin's alcohol concentration is only evidence if he a breath or blood sample is taken and tested -- if there was no test, there is no evidence of his alcohol concentration. If there is no evidence, there is nothing with which to tamper.
Discussing the same case, Dane Johnson was similarly dismissive:
Am I missing something here? How is refusing a breath test tampering with a government document? Doesn't it seem that you would have to actually alter, change, destroy, or manipulate a document in order to tamper it? Even more basic, wouldn't there have to be a document already in existence or one that you fraudulently made to alter or tamper with?


Since when did our Constitution require us to aid in a police investigation? Is the Fifth Amendment to the United States Constitution still around? Funny, I thought we were all protected in our right to remain silent and not aid the Government in convicting us.
Taking a break from fighting the good fight to think about fighting the good fight, Gideon mused about Boykin v. Alabama, which required evidence on the record that guilty pleas are intelligently and voluntarily made; he discussed one question in the typical "canvass" used by trial courts to satisfy the Boykin requirement:
[A]s part of the plea canvass, a judge will routinely ask defendants the following question: “Are you satisfied with your attorney’s representation of you?” This question, to me, is distinctly different from the practice book requirement that the defendant be aware that he is entitled to the effective assistance of counsel. The latter is directed at informing the defendant that if he proceeds to trial, he will have available an attorney to conduct the trial for him.

The question of satisfaction, on the other hand, seems to have no basis in any Constitutional requirement....

You can imagine the gamut of responses to this question: A perfunctory “yes”; a begruding or resigned “yes”; a hesitant “yes”; some hemming and hawing followed by “yes” and the rare “no”.


Which brings me to my question(s): What, exactly, is the point of this question? It certainly cannot be to prevent any future habeas corpus litigation alleging ineffective assistance of counsel. The administration of a Boykin canvass hardly precludes future arguments that the plea was not voluntary. I’ve seen prosecutors attempt to question habeas petitioners whether they answered the question in question in the affirmative, as if it were evidence of a lack of [ineffective assistance of counsel]. But they are not serious arguments and don’t hold much weight in the eyes of even the most pro-state judges.
Jamison Koehler also had some thoughts about how treatment of guilty pleas varies from one court to another, describing the differing approaches he witnessed from two local judges:
It’s no coincidence that the law requires that the guilty plea – a waiver of the defendant’s constitutional right to a trial – be knowing, intelligent and voluntary. The defendant needs to make an educated, considered decision. He or she needs to be comfortable with a decision that may affect him or her for the rest of the defendant’s life. At the very least, from a purely practical standpoint, the defendant who is not comfortable with the decision may balk during sentencing or attempt to withdraw the guilty plea later.

So this judge gives the defendant’s attorney plenty of time to work with the defendant in arriving at the right decision. And there is no sense of irritation or annoyance when the defendant decides to exercise his or her right to trial.

The result is that, instead of clients being rushed into a hasty, ill-considered decision and then leaving the courtroom regretful and angry at the whole system, the defendants who leave this judge’s courtroom do so with an understanding of what they did and a comfort level with the decision they just made. Many of them smile and thank the judge after pleading guilty, even as the sheriff is putting on the handcuffs and taking them into custody. They’ve been heard.


The concept of a greatly-broadened or even universal right to a public defender in criminal matters has been discussed in the legal blogosphere from time-to-time. This past week, Norm Pattis evangelized the concept of universal public defense and announced the start of a new blog to champion the idea:
It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren't defendants? We've begun a journey toward the goal of equal justice for all by assuring that indigents have the right to a defense. Why not a public defender, or, at the very least, a state paid defender for all accused of a crime?

Sure, it sounds like a hare-brained idea at first blush. After all, services for the indigent are scarcely funded. But as a goal, no American should be required to face the state armed solely with resources he or she can muster. Lawmakers hell-bent on criminalizing their own shadows ought to be compelled to ante up for both sides of the aisle.
Mark Bennett was generally supportive of the idea, albeit not for precisely the same reasons:
My issue with the criminal justice system is a different one than asymmetry.

The system now requires society to pay for due process only for those who are indigent. Those who are not indigent are forced to pay for their own due process (in the form of a lawyer). Those with plenty of money do fine, and the working poor get screwed. But they are all presumed innocent.

Why should the (presumptively) innocent, whether wealthy or working-poor, have to dig into their own pockets to defend against charges that are (presumptively) false?
Scott Greenfield cautioned about the collateral effects of a universal public defender program, advising that (depending on the degree of universality) such a change would either eliminate orjeopardize the existence of the private criminal defense bar and would leave criminal defense effectively subject to the budgetary and political whims of "the Man":
[T]his Utopian ideal, free criminal defense for all, may not be the panacea desired. Just as the defense provided poor people falls short of that which the wealthy purchase now, for reasons wholly outside the control of their lawyers, it smacks of a race to mediocrity for all. Too many defendants, too much need, not enough money, would plague the system. Price control over the costs would chase many away from the practice, from lawyers to experts who won't work for state dictated rates. Just because a bureaucrat thinks that $27 an hour is plenty doesn't mean the rest of us have to go with the program.

More than that, I fear giving the government this much control over the criminal defense bar. Some will sign up because it's welfare for lawyers, diminishing the need for lawyers to perform their best to satisfy their client's needs. When clients don't pay, lawyers don't perform. It happens.

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence. One day, somebody gets it into their heads that they don't like us anymore and, poof, we're done. One bad Supreme Court decision and Gideon is toast. A vital private bar, beyond the reach of the government, must continue to exist if we're going to be positioned to fight for the accused. If our children's next meal depends on government largesse, we have sold our independence for good. We're just another cog in the government wheel.

Put us on the government payroll and we work for the Man. Do we really want to serve the Man? Not me. I serve my client, no one else.
Current public defender Gideon noted that a greatly-expanded defender program would need to be well-funded, something which many states' defender programs are not:
Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.

Without adequate funding, the reality of Gideon’s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.


There are three classes of criminal defendants: the very poor, the rich and those in between. The first two we need not worry about: they will always have counsel and will always have the resources to fight their prosecutions.


Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-elses-standards-but-not-poor-enough-to-get-a-pd.

This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.
Greenfieldagreed but remained unconvinced:
While moving the bar of indigency upward would alter the calculus somewhat, and rid us of the assumption that poor means dirt poor, and anyone who isn't dirt poor is wealthy enough to afford to pay for a criminal defense, it reduces the number of people who fall into the no-man's-land of criminal defense but does not eliminate the problem. People who are solidly middle class, maybe even upper middle class, really aren't equipped to handle a serious criminal defense.


My best guess is that such a system will virtually eliminate the existence of a private criminal defense bar. For the vast majority of private criminal defense lawyers, who aren't the short list for the prosecuted rich, the choice will be sign up or find some other way to earn a living. There simply won't be enough regular retained criminal cases for them to maintain a practice. At that point, the government will control the purse strings of, say, 98% of the criminal defense bar.
Speaking only as a naïve observer without any particular relevant experience with these issues, I wonder whether a middle approach is worth considering. Gideon's suggestion that disposable income be considered when determining eligibility for public defense is a reasonable one. We need to set reasonable threshholds to begin with and ensure that those threshholds keep pace with economic reality over time. Similarly, some consideration of the true costs of an effective private criminal defense must be made, probably on a case-by-case basis, to ensure that more complex matters are not treated the same as routine criminal offenses. I don't agree with Mark Bennett's suggestion that the legal presumptions about a defendant's innocence require a fundamental change in the way criminal defense is funded, nor do I think that reasonable income threshholds need to be jettisoned in favor of a truly universal system like that envisioned by Norm Pattis.

The primary problems with the current approach seem to be that eligibility threshholds are often unfair and unreasonable ones, established at artificially low levels to skew criminal matters in the state's favor, to better control budget demands, or simply because establishing more reasonable threshholds is not a political priority; rather than adopting a fundamentally different approach, addressing those problems seems like a more palatable first step. The private criminal defense bar needs to remain vital in the overall system, both for its independence from state control and to provide a genuine alternative for all criminal defendants and I wonder whether something like fee-shifting could ensure that the costs of private defense do not penalize those defendants who successfully challenge their charges. Perhaps where the costs of a private defense are borne by a defendant, these should be reimbursed to some degree by the state when the result of the trial is something less than a conviction.

As I said, I'm naïve, and on this topic at least I can't wait to find out just how much so.

Odds n Ends Shop

One of the more interesting topics discussed this week was the legality of secession. Eugene Volokh played the part of South Carolina, starting the whole secession crisis by addressing the question whether the legality of secession was "settled" by the surrender of the Confederate army at Appomattox in 1865:
In principle, I agree that some sufficiently grave threats to liberty or security may justify secession — if we’re talking about historical locales, think Philadelphia 1776 or Yorktown 1781 — but we’re extremely far from that, especially reckoning the liberty, security, wealth, and greatness costs of disunion. Today, secession is politically a total nonstarter, and for very good reasons.


And beyond that, even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is), any such precedent can’t tell us much about consensual secession. The talk I occasionally hear of secession (again, talk that I think is not really serious) is not about departure in the face of military opposition — it’s about creating a political sentiment in some place in favor of seceding, and a political sentiment in the rest of the country in favor of allowing the secession. The results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce.

Appomattox might well have a continuing effect (as does Philadephia) on the psyche of today’s Americans, and of future Americans. Its immediate effect also deeply influenced the economic structure of the nation, and the political structure of the nation’s political institutions; I suspect this also makes future secession less likely.

But that’s not a “settlement” of the secession question for the centuries. And there can be and should be no such settlement.
Ilya Somin, co-Conspirator at The Volokh Conspiracy (and never has that blog title seemed so appropriate as with this topic), agreed in principle and suggested a moral element to the legitimacy issue:
...I don’t think that secession is either clearly unconstitutional or always morally wrong. I agree with Eugene that secession at this particular moment in American history is probably both infeasible and likely to cause more harm than good. I don’t think, however, that that will necessary remain true indefinitely.


Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.
Justice Antonin Scalia, for one, disagrees. Eric Turkewitz has the proof, courtesy of his brother Dan, a screenwriter:
Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:
I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.
I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:
I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.
Another hypothetical also caught my eye this week. Criminal defense blogger Blonde Justice has occasionally been asked, hypothetically, how she would feel if someone she'd successfully defended later committed murder; she wrote that that hypothetical's hypothetical no more for her:
Personally, this client was always nice to me - he was always a respectful, kind client. And he was always accompanied by his girlfriend. She was very pretty and nice, and just seemed to have it more "together" than he did. If I relayed an instruction or a court date to her, I knew the message would get through or that my client would show up.

Throughout the case, I wondered if she knew how bad his criminal past was. But, finally we had the hearing, and she sat in the audience through the whole thing as my client's whole criminal history was reviewed in great detail. We won, and at the end, when we walked out, she thanked me profusely and was very appreciatively, and didn't seem the least bit shocked or confused at what she had heard.

I heard recently from a former colleague that the client's girlfriend had been found dead, and that my former client had been arrested for her murder....

So, how do I feel? I feel sad. The client's girlfriend seemed like a nice person. I don't like it when people die, especially nice people. I feel disturbed. I guess even though I have represented a few people who have previously been convicted of murder or manslaughter (including this client), I still imagine that it takes a different kind of person to be able to kill someone, and that somehow I could recognize such a person. That seems silly, I knew he had previously been convicted to killing someone (I never asked him whether he did it, or whether he felt that he had been falsely convicted, or anything like that), so it would be a fair assumption that he was capable of killing someone - but I guess that's just a false assumption that most people have - that if we met a murderer, we would know. That every murderer would look like Charles Manson with a forehead tattoo or something.

Do I feel responsible? Nah, not really. It's hard to say whether I'd feel differently if my case had been responsible for him being released from jail, and that, but for my defense, he would have been in jail or prison and unable to kill his girlfriend.

Well, that's all, folks. Yes, I know that this week's post is a bit more abbreviated than usual, but it's not my fault; you need to blame ABC for moving Lost to Tuesdays, when I used to write these. What I need now is a counterpart Colin, perhaps composed entirely of intelligent black smoke, who exists in an alternate reality wherein Lost is still on Wednesdays. Polar bears and enigmatic numbers are strictly optional.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Law Offices of David Jacquot, Wikipedia, and Paris Odds n Ends Thrift Store.

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