Welcome to Blawg Review Number 117: the Bill of Rights/Criminal Law Edition.
Approximately 5% of previous Blawg Review hosts have blogs related to criminal law, and not all of them practice and/or blog exclusively about criminal defense: Appellate Law & Practice, Crime and Federalism, JAG Central, Blonde Justice, Concurring Opinions, and Public Defender Stuff.
This week, I will supplement the usual suspects’ contributions (i.e. posts from Civil Lawyers) with a healthy dose from around the bourgeoning criminal law blogosphere. I hope that criminal defense attorneys will consider hosting Blawg Review in future editions. At the very least, criminal law bloggers should consider submitting their best posts on a weekly basis.
Last week’s host, Corporate Law UK, wrote the Review in iambic pentameter (and possibly inspired Nate Oman’s entry this week about the demise of wigs in the British legal profession). Alas, poetry is well beyond my talents, so we shall have to settle on a different theme.
I decided to use the six amendments from the Bill of Rights that most apply to criminal defense, highlight a historic Supreme Court criminal case, and use the text of the Amendment itself as the springboard for this week’s featured posts. [Civil lawyers need not worry… I found ways to work your submissions in.]
THE FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Texas v. Johnson, 491 U.S. 397 (1989) The Supreme Court affirms that flag burning is protected speech under the 1st Amendment. Many forget that this is indeed an important criminal case. This wasn’t a case of prior restraint…. Johnson had originally been sentenced to one year in jail for the overtly political statement consisting of burning the flag outside the 1984 Republican National Convention in Dallas, Texas. Justice Brennan authored the 5-4 decision.
Freedom of Speech
The patients' bill of rights is a fluid concept, from state to state, and hospital to hospital, but it usually includes the right to clear communication about his or her treatment options, free from governmental interference. David Harlow discusses amendments to the Stark self referral rules, dealing with how clear communication about recommended procedures could be clouded by a physician's financial interest in the referral. [Off topic note: please consider sponsoring David as he bicycles 200 miles in 2 days this summer to raise money for cancer research and treatment.]
Free speech is great, of course, but would it matter if no one were listening? Dave Hoffman starts a flurry with his post entitled “The Flat Legal Blogosphere, and What to Do About It”. Eric Turkewitz was listening, as evidenced by his post “Is the Blawgosphere Stagnating?” PrawfsBlawg talks about the future of legal blogging. Next Simple Justice responds, and then Mark Bennett. Hoffman writes more on the topic, and asks us to consider “Why do Lawyers Blog?” I’d argue that this blogversation itself provides proof of a vibrant legal blogging community. Indeed, people are listening.
THE FOURTH AMENDMENT
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Wong Sun v. United States, 371 U.S. 471 (1963) The Supreme Court declares that narcotics seized from an illegal search were the “fruit of the poisonous tree” because none of it would have “come to light but for the illegal actions of the police”.
Unreasonable Search and Seizure
Kansas Defenders reports on an appellate decision that found a pat-down search unreasonable.
Defending folks charged with possession of marijuana, and other controlled substances requires a thorough knowledge of Search and Seizure law, and the ability to successfully argue Motions to Suppress the Evidence. But for now, a short detour into the world of bloggers who would like to see the ‘War on Drugs’ ended in the first place.
Pete Guither writes a letter to the DEA protesting the threatened asset forfeiture against the building owners where medical marijuana dispensaries are housed in Los Angeles.
Blame the Drug War wonders whether her anti-Drug War activism does any good.
Blog Reload brings us his Marijuana News Roundup.
Radley Balko focuses on the over-criminalization of pain medication in his House Crime Subcommittee post.
And for those who think being anti-Drug War is solely a cover for prejudice against the police be sure to subscribe to the Law Enforcement Against Prohibition blog.
THE FIFTH AMENDMENT
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Miranda v. Arizona, 384 U.S. 436 (1966) To insure protection of the right not to incriminate oneself, the Supremes proscribe the prophylactic remedy now known as the Miranda warnings, or, said in plain English…the police must advise someone in custody of their rights before questioning them. Little known fact? Miranda was retried without the illegally obtained evidence, and reconvicted.
Indictment by Grand Jury
The accuser has supposedly repressed the memory of the unprovable crime for 32 years, but reported it to the police recently. Three days before the State dismissed the case, Simple Justice blasts the District Attorney’s Office for indicting a man when they knew they didn’t have enough evidence to convict. Despite the dismissal of charges, Scott’s original point remains true: the damage to reputation is unfortunately permanent.
Penny Umstattd-Cope reviews an interesting Double Jeopardy decision from Missouri State Court. The defendant was retried after a successful appeal, and argued that his second jury should have been instructed to limit their punishment range based on the first (reversed) case. The Appellate Court disagreed.
Compelled to be a Witness against Himself
The opposite of “not being compelled to be a witness against yourself” is often “interrogation” or “torture,” and Marty Lederman collects a compendium of Op-Ed pieces on those subjects written by Jack Balkin.
Shawn Matlock points out that since we have a 5th Amendment, you ought to use it.
Randy England answers the question all criminal defense lawyers hear: “The police didn’t read me my rights. Will they drop the charge?”
Appellate Law & Practice applauds the California First for affirming the suppression of un-Mirandized statements, and resisting the urge to find some sort of “the Defendant is a bad guy” exception.
THE SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Gideon v. Wainwright, 372 U.S. 335 (1963) Denied access to a lawyer, forced to defend himself and sentenced to five years in prison, Clarence Gideon appealed his case all the way to the Supreme Court. Reversing several previous decisions, the Court finally allowed that “assistance of counsel” was necessary, even for non-capital cases. Little known fact? Future Supreme Court Justice Abe Fortas was eventually assigned to help argue for Gideon at the Supreme Court.
Jon Katz writes on the all too common phenomenon of jurors caving into pressure from fellow jurors, especially in serious felony criminal trials.
Mark Bennett describes the five basic defenses to possession charges that should be considered at trial. Of course, when actually in jury trial, don’t forget Mark’s corollary to Occam’s Razor… “Bennett’s Chainsaw” or why the second simplest explanation of the Government’s evidence is usually the best.
You can’t very well have the right to a jury trial, without imposing some sort of compulsory jury duty requirement on others. Kevin Underhill and Seth Freilich reported the case of a fellow who tried just a bit too hard and too obviously to get out of jury duty during voir dire and found himself jailed for his troubles.
Anne Reed examines the effect of having lawyers in your jury pool or on your panel.
Frolics and Detours’ latest post illustrates the emotional toll a criminal trial can take on the defense attorney.
And, just because you have the right to a jury trial in a criminal case, doesn’t mean you can’t waive it. Robert Guest reports on a successful DWI bench trial. Windy Pundit had less success in his trial by judge. A Public Defender writes that Windy’s experience with testilying is all too common.
The Confrontation Clause
Prosecutor Joel Jacobsen posts about two Federal Courts coming to different conclusions about the same legal question; namely, the testimonial nature of challenged hearsay under the Confrontation Clause.
The Presumption of Innocence
In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court affirmed that the presumption of innocence in federal cases flowed from the guarantees of the 5th and 6th Amendments in the Bill of Rights (later applied to the States through the 14th Amendment).
In that vein, Albany Lawyer Warren Redlich responds to a prosecutor who accused him of thinking everyone was innocent. (I didn’t find any ‘this week’ posts about the 5th amendment’s due process guarantee, but feel free to access Redlich’s older article “A Substantive Due Process Challenge to the War on Drugs”.)
Assistance of Counsel
The right to effective assistance of counsel requires a healthy dose of client involvement. Stephen Gustitis offers suggestions to criminal defense lawyers on how best to gather the facts from your client. And speaking of building a defense, Philadelphia Criminal Defense Lawyer Mark Jakubik continues a recent discussion on having clients take polygraphs.
Jeralyn Merritt at TalkLeft comments on a new study by a Harvard economist that Federal Public Defenders get better results than appointed but privately hired counsel. The study certainly stirred up the criminal blogosphere… same subject, more views on it from: Empirical Legal Studies, Public Defender Dude, Rumpole, Osler’s Razor, Singing Loudly, Doug Berman, and HackLawyer. Access the study itself here: An Analysis of the Performance of Federal Indigent Defense Counsel.
THE EIGHTH AMENDMENT
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Robinson v. California, 370 U.S. 660 (1962) The trial judge instructed the jury to convict Robinson if they found that he was addicted to the use of narcotics and defined ‘addicted to the use of narcotics’ as ‘based upon a condition or status’. The State of California argued that ‘a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there’. The Supreme Court ruled that criminalizing addiction (as opposed to use of narcotics) was cruel and unusual.
Cruel and Unusual Punishment
Eugene Volokh finds it unusual that there used to be the statutory possibility of no punishment for men who killed their wives’ lovers in The Unwritten Law, Written.
Speaking of punishment, Leon Gettler speculates on what kind of sentence Conrad Black will receive now that he has been convicted on 4 counts of fraud and obstruction of justice. White Collar Crime Prof Blog also looks ahead to Lord Black’s sentence. Doug Berman points out that Black will be subject to enhanced penalties based on his nine not guilty verdicts. And for complete coverage of the entire trial from the beginning, visit The Conrad Black Trial: Comeuppance or Vindication blog, written by Daniel Ryan.
Louis Lechter writes about some of the collateral consequences and potential civil punishments the Texas Board of Nursing Examiners contemplates when a nurse is arrested for and/or convicted of DWI.
Scott Henson provides an example of excessive punishment due to Texas’ penchant for classifying everyday juvenile behavior as a felony: in this case, a sixth grader wrote “I love Alex” with a baby blue Sharpie on the school gym wall. On a semi-related note, Gopher Lawyer spends the day interviewing clients in the Juvenile Detention Center. Blawgraphy weighs in as well.
Seeking Justice notes that some people who voice general disapproval of the ultimate punishment, the death penalty for murder convictions, actually support it in certain individual cases. Opinio Juris points out that other countries have the death penalty for non-violent crimes. And for those defending against capital murder charges, you might use a little Clarence Darrow inspiration for closing argument.
THE NINTH AMENDMENT
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Griswold v. Connecticut, 381 U.S. 479 (1965) Being convicted of giving ‘information, instruction, and medical advice to married persons as to the means of preventing conception’…sounds a whole lot like convicting licensed physicians for advising married people that the best way to not have more children is to use a condom. Justice William O. Douglas’ opinion found the law invalid based on the constitutional “Right to Privacy”. While not specifically mentioned in the Constitution, Douglas reasoned it still existed because the specific guarantees of the Bill of Rights have penumbras “formed by emanations from those guarantees that help give them life and substance”.
Along those lines, let me restate the 9th Amendment for purposes of this edition of Blawg Review: My announced intention of focusing on criminal law blogs, shall not be construed to deny or disparage posts written about other legal concepts. Hence, the last subsection entitled…
This Week’s Penumbra Posts
Carolyn Elefant tells us the story of the spam filter that caused a lawyer to miss an important email from a Federal District Court. Jim Calloway weighs in with practical solutions on how to avoid the same fate.
What About Clients asks whether a lawyer needs to like their client to do a good job for them.
Grant Griffiths is looking to update his blogroll with other home-office and/or solo lawyer blogs.
California Debt Blog warns debtors that they need to demand three things from creditors: verification, verification, verification.
Niki Black is asking other bloggers to weigh in on the best statistics software or widget they use to count visitors. (Also check out her newly launched Legal Humor blog: Legal Antics.)
Speaking of legal humor…everyone enjoys a classic lawyer joke, but do we have too many lawyers or too few? Overlawyered sees an opportunity to cut down on lawsuits, after Above the Law comments on closing down a law school. Meanwhile, May It Please the Court tells us we are actually running out of lawyers. Who knew?