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Tag: "civil liberties"

Supervising Pleas

[ 3 ] October 3, 2011 |

Adam Liptak’s roundup of a the forthcoming Supreme Court term — one that could produce the most landmark rulings of any in quite some time — is of course useful. What is likely to be the biggest case is well-known. This is one less prominent case I’ll be keeping an eye on:

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

Given that over 90% of cases plead out, rulings about trial procedure are relevant to most accused persons only indirectly, to the extent that they provide more bargaining leverage to the defense or prosecution. It’s important that the Supreme Court engage in some supervision of the plea bargaining process, where inadequate counsel may be less visible but is nonetheless a serious problem.

In light of the Davis execution, this case will get more attention:

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

I would like to think that the Supreme Court would follow the lead of the New Jersey court, but as of now I’m betting the other way.


Executing People on the Basis of Eyewitness IDs: A Horrible Idea

[ 9 ] September 25, 2011 |

Another reminder.

The Machinery of Death

[ 69 ] September 21, 2011 |

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question–does the system accurately and consistently determine which defendants “deserve” to die?–cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Harry Blackmun [cites removed]

I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.

Ruth Bader Ginsburg

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

–Antonin Scalia

The “War on Terror”

[ 8 ] September 7, 2011 |

America’s best constitutional values are definitely losing it.

…see also.

Mubarakism in the Bay Area

[ 27 ] August 18, 2011 |

I have a column up at the Prospect about the decision of the BART transit police to — in the ignoble tradition of the Alien and Sedition Acts — cut mobile access to passengers to suppress a protest against…the BART police:

On the first point, it’s hard to see how the regulations are reasonable even if the protest could turn violent. The policy was overbroad, targeting a large number of passengers who were not potential protesters but were relying on having access to mobile devices. On the other hand, it’s not even clear how effective the regulation would be should a legitimately dangerous violent protest emerge, since organizers outside of cars and platforms could still use their phones and other mobile devices, and passengers in cars and platforms who found their phones jammed could communicate verbally. Even if one accepts that the threats cited by the BART Police are real—in itself a highly dubious proposition—the draconian withdrawal of any wireless access was not reasonably tailored to meet the threat.

BART’s actions are even harder to defend with respect to the second criterion. The most disturbing aspect of this case is the fact that BART Police took an unprecedented action suppressing free speech with the object of preventing a protest against them. Given that there was no concrete evidence of any threat to passengers, it is hard to avoid the conclusion that far from being viewpoint-neutral, the decision to shut down cell-phone access was targeted at speech that the BART Police didn’t like. This is precisely why we require even otherwise valid restrictions on speech to be viewpoint-neutral; it strikes close to the heart of the First Amendment for state actors to be in the self-serving position of deciding what kinds of political speech are acceptable and which are not. Allowing BART Police to take unprecedented actions that effectively suppressed criticism of their own department would set an extremely bad precedent.

One suspects that this kind of thing will get worse before it gets better.

Court Finds New Exception To Exclusionary Rule

[ 31 ] June 16, 2011 |

Since 1961, the Supreme Court has held that evidence illegally obtained by states is not admissible in court.  Beginning with the Rehnquist Court, however, the Curt has been carving out various exceptions to the rule.   The most important and problematic of these exceptions is the “good faith” exception, which holds that evidence should be admissible if police officers obtained it in good faith, but the search was illegal because of errors by other actors.   The problem is that there’s no clear reason why the incentives of the exclusionary rule should apply only to police officers, as opposed to all agents of the state.

Today, the Court has found yet another exception.   The police conducted a search that was ruled to be a violation of the 4th Amendment, but was legal at the time under an 11th Circuit precedent.   In an opinion by Alito, the Court held that the good faith exception prevents the rule in this case from being applied retroactively.   The problem, as Breyer’s dissent notes, is that (in an increasing Roberts Court tradition) this leaves someone whose rights have been violated without a remedy.    Ominously, this was a 7-2 decision, with neither of Obama’s appointments joining Breyer and Ginsburg in dissent.

Scoring the Evidence Against Willingham

[ 77 ] June 13, 2011 |

So it seems likely that Rick Perry will run for president.

To distract myself, I’ve been reading Bill James’ new book Popular Crime. The chapter on Lizzie Borden, in an attempt to distinguish meaningful evidence from less or non-meaningful evidence, proposes a scale in which evidence is given weight, with a score of 100 meaning that someone has been proven guilty beyond a reasonable doubt. Something that’s close to being dispositive (a DNA match in a sex murder being probably the strongest evidence) would be 80; reliable evidence of previous threats against a victim might be 25, etc. The limitations of the method are obvious, but it’s an interesting starting point for analyzing the state’s evidence. (Incidentally, James scores the evidence against Borden at about 20.)

To pick a completely random example, let’s use this method to assess the evidence against Cameron Todd Wilingham:

  • “Scientific evidence” of arson: Literally worthless.   The damaged house is perfectly compatible with an accidental fire, and the “science” purporting to demonstrate otherwise is about as useful as astrology.   Zero points.
  • The testimony of Jimmy Webb: Webb, a mentally ill jailhouse snitch, testified that Willingham confessed to the murder. Webb testified that Willingham (who was executed because he  refused to cop a plea) decided out of the blue to confess to a stranger while passing by his cell.    This story 1)is extraordinarily implausible on its face, 2)contained assertions that were inconsistent with the evidence, 3)was told by an extremely unreliable witness with strong incentive to lie, and 4)was later recanted by Webb.    Basically, this is about as useless as such evidence could be.   Three points.
  • Willingham’s “character”: Amazingly enough, one of Willingham’s killers has essentially conceded that the two pieces of “evidence” above — the only evidence that the fire was arson in the first place — are of no value.    Essentially, the prosecution’s case is now “Willingham was a really bad guy so he must have done it.”   But — the arguments of another of Willingham’s killers notwithstanding — being a bad person or bad spouse aren’t capital offenses, and they’re relevant only insofar as they show someone capable of having burned his children alive.    So how relevant is the character evidence in this case?  Not very.  His penny-ante criminal history is neither here nor there in terms of a tendency to commit a crime of this magnitude.   His adultery and history of domestic violence would be of some relevance if he had been accused of killing his wife, but as evidence that he killed his children (who he apparently never harmed), it’s very weak tea.   It would carry some weight if there was actually evidence of arson, but in and of itself it’s almost nothing.   I’ll score it at 15 points, and I think that’s generous to the prosecution.
  • Alleged Failure to Act In Accordance With Arbitrary Standards of How Victims Should Act. Except in extreme cases, I’m very dubious about this evidence in any case; it’s impossible to predict how someone will react to an unfathomable tragedy within reason, and Willingham’s actions seem within a reasonable range.   Moreover, even the allegedly damaging witness testimony in this respect is unreliable; witnesses seemed to think his actions were worse after he was arrested than people reported at the time.   5 points, and again if anything I think that’s too high.
  • “Expert” Testimony of his Sociopathy: It was delivered by James Grigson, so essentially all it’s evidence of is that the state’s check cleared.    Let’s just say that among the evidence Grigson used to provide evidence that Willingham was a sociopath was the fact that he had Led Zeppelin and Iron Maiden posters as a teenager.  1 point.

I think that’s basically it.   So my final score is 24.    It would be irresponsible for a DA to seek an indictment based on a case this weak, and the fact that someone was executed based on it is an outrageous miscarriage of justice  that in a rational universe would permanently disqualify anyone involved from public office.  If, hypothetically, the governor who signed off on this execution and then suppressed an inquiry into what happened was a credible candidate for president, it would be a national disgrace.

Brown v. Plata

[ 31 ] May 24, 2011 |

Some initial thoughts here. Another way of putting it is that the Republican position here is self-refuting. The injunction requires the release of tens of thousands of prisoners only if the state isn’t willing to invest more revenue in the prison system, and if it’s not worth a cent in tax increases it’s hard to take the hysterical worst-case scenarios in the Scalia and Alito dissents seriously.

The War on Drugs and the Bill of Rights

[ 38 ] May 20, 2011 |

I have an article up at the Prospect putting this week’s diminution of Fourth Amendment rights in context:

That the other eight justices signed on to the majority opinion shows how bipartisan a cause the war on drugs has become. It is especially disappointing that President Barack Obama’s two appointees — Justices Elena Kagan and Sonia Sotomayor — joined the majority to dilute Fourth Amendment protections. It is too early to fully evaluate either justice, but their decision in King vindicates progressives who felt that Obama squandered an opportunity to install committed civil libertarians on the Court. Ginsburg, 78 and in poor health, is the only justice on the Court with a strong commitment to civil liberties, and given the likely configuration of the Senate even if Obama wins re-election, it will be difficult to replace her.


As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.

All of these civil-liberties violations might be more tolerable if they were part of a valuable and effective policy. But while the drug war has been successful at locking up huge numbers of people (especially young African American men), it’s done little to reduce drug use. Alas, the drug war has been far more effective in curbing our civil liberties.


[ 38 ] May 20, 2011 |

The great Linda Greenhouse:

Fourth Amendment law is enormously complex (although not as complex as it once was, now that the state wins almost all the cases.)

The War on Drugs v. the Constitution

[ 66 ] May 17, 2011 |

Under the Fourth Amendment, searches of a person’s home are presumed to require a valid warrant unless there are “exigent circumstances.” The Supreme Court has also, logically enough, held that these exigent circumstances generally cannot be created by the police’s own behavior. The War (On Some Classes of People Who Use Some) Drugs, however, is where the Bill of Rights goes to die. So, yesterday, the Supreme Court upheld a warrantless search of a home in which the police had time to obtain a warrant, but created their own “exigent circumstances” by following a suspect into his apartment complex and smelling marijuana. Nor surprisingly, the opinion overruling those Trotskyites at the the Supreme Court of Kentucky was written by “Strip Seach” Sam Alito. Dismayingly, and demonstrating again that the Supreme Court essentially lacks a real liberal wing, the decision was 8-1, with both of Obama’s appointees in the majority. Ruth Bader Ginsburg, adding to the case that she should stay on as long as she damned well pleases, dissented:

The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.


That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Ante , at 8. Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.


How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

The key problem with the case, as Ginsburg convincingly argues, is that it’s the latest example of the drift of the exigency exception away from actual emergencies and toward the mere convenience of the police. If the police have time to obtain a warrant and there isn’t an actual emergency, they should be required to obtain one. But when security in the home faces the War (On Some Classes of People Who Use Some) Drugs, it generally loses.

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What’s Upsetting About the Gitmo Leaks?

[ 18 ] April 25, 2011 |

Ben Wittes believes that the new leaks about Gitmo are embarrassing because the government couldn’t keep important secrets, and are inconsistent with the civil liberties of the persons who are, er, being arbitrarily detained without charges because they contain unsubstantiated speculation.   Personally, I think the bigger embarrassment is what the leaks reveal about our arbitrary detention regime and how many of the arbitrary detentions are apparently justified with inherently unreliable evidence obtained from torture.   Different priorities, I guess.

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