The Volokh Conspiracy

Bill Stuntz’s landmark book, The Collapse of American Criminal Justice, has just been released by Harvard University Press.  It is well worth a read for those who are interested in the big picture issues surrounding the American criminal justice system.

Stuntz has been accurately described by Orin as the leading criminal procedure scholar of his generation in this post commemorating Stuntz’s life.  (Stuntz passed away earlier this year).  In today’s Wall Street Journal, I have this review of the book. As you will see in the review, I believe Stuntz properly identified excessive proceduralism as one of the serious problems in our criminal justice system.  While I would have liked to have seen him argue a bit more forcefully for trimming back some of that proceduralism, the book is a tremendous accomplishment — essentially a “must read” for those concerned about the future of American criminal justice.

Along with Professor Edna Erez, I have just published this article on victim impact statements.  It is discusses the concept of “ancillary harm” as a legitimate basis for courts using victim impact statements to determine criminal sentence.  Here is an abstract:

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

The section on the Bernie Madoff sentencing may be of interest to some readers.  It pulls together some interesting examples of the victim impact statements bringing to a judge’s attention the far reaching consequences of a crime that might not otherwise be apparent.   I have previously provided a more general defense of victim impact statements in this article here.

Following up on my post from yesterday about the FBI’s new policy of using the “public safety” exception to Miranda to question terrorism suspects  — The NY Times has the text of the FBI’s memo, found here.

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved.

The Justice Department has just announced new guidelines, apparently expanding the “public safety” exception to Miranda to allow extended questioning of terror suspects.  The WSJ has the story here. Such extended questioning will require approval of Justice Department lawyers.

How does Eric Holder reconcile these new guidelines with the position that he supported in Dickerson in 2000 (that the Miranda warnings were constitutionally required)?  Bill Otis has an interesting analysis of the contradiction here.

Previous VC posts on the subject of Miranda and public safety can be found here. Questioning terror suspects seems to me to be  the classic example of the need for a public safety exemption.  It does seem desirable to have Congress add its backing to the exemption by passing a statute confirming its agreement with the Justice Department guidelines.

 Professor Guiora (a colleague of mine at Utah) and I recently debate the appropriateness of Miranda warnings in the context of terrorism investigations.  Here’s a link to the Federalist Society’s podcast of the debate, which revolves around whether or not the “public safety” exception to Miranda  should apply in the context of questioning suspected terrorists.  I argue that, under current doctrine, the exception easily applies; Professor Guiora argues that using the exception would put us on a slippery slope, sliding toward the destruction of civil liberties.

On Monday, I’ll be in the D.C. Circuit arguing an interesting case concerning a crime victim’s right to restitution in child pornography cases. 

I represent “Amy”, who is the victim depicted in the “Misty” child pornography series — apparently the most widely disseminated series on the web.  She has filed restitution requests of approximately $3,000,000 in cases throughout the country, mostly seeking to recover lost income and psychiatric counseling losses.  District courts have reached differing conclusions about whether Amy is entitled to restitution for that amount and, if so, whether individual defendants are liable for the entire amount or some smaller share.

Several weeks ago, Judge Kessler awarded Amy only $5,000 in restitution.  Under the Crime Victims Rights Act (CVRA), New York attorney James Marsh and I filed a CVRA petition in the D.C. Circuit, asking for full recovery for Amy.  The petition is here, along with responses from the defendant and the Government.

Amy’s petition implicates a procedural issue on which the circuits are split: whether crime victims filing a CVRA petition are entitled to ordinary appellate review or merely deferential mandamus review for clear and indisputable errors.  I’ve written a  law review article taking the position that victims should receive the same sorts of appellate protections that other litigants receive, so I’m looking forward to making my case to the D.C. Circuit on that one.   The issue is how to interpret 18 U.S.C.  3771, which requires a court of appeals to “take up and decide” a mandamus petition filed by victims.   In my view, this language makes clear that Congress intended to replace discretionary mandamus standards with ordinary appellate standards — a view taken by the 2d, 3rd, 9th, and 11th circuits. 

On the substantive restitution issue, the question that has divided district courts is how to interpret 18 U.S.C. 2259, which promises victims of child pornography offenses restitution for the “full amount of the victims losses.”  To my mind, this and other provisions in 2259 guantee Amy a right to restitution award of $3 million from each and every defendant who views her images – as an innocent victim of crime, Amy shouldn’t be required to track down all the multiple offenders around the country to obtain full restitution. 

The CVRA promises crime victims a decision in 72 hours.  Amy has tried to waive that right, but the D.C. Circuit is nonethelss moving at breakneck speed.  Amy’s petition was filed on Wednesday, January 26, and this Monday, January 31, the D.C. Circuit ordered oral argument next Monday, February 6.

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in New York v. Quarles) as containing a “public safety” exception, allowing police officers to jettison the Miranda procedures in situations where the question is motivated by preventing further danger to the public.  In that case, for example, police officers were allowed to question suspect Quarles aboutt the location of gun he had apparently discarded in a supermarket. 

The exact parameters of the public safety exception are unclear.  But if any circumstance would appear to involve overriding public safety concerns, it would be a circumstance involving a terrorist investigation.  Indeed, the Second Circuit has allowed un-Mirandized question of terrorist suspects about how bombers were made and how to disarm bombs that were uncovered.  U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).  Questioning of suspects like Abdulmutallab would seem to comfortably fit within the exception.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

I will be interested to see what Professor Guiora and others think of my proposed statute.

Update:  Rick Pildes from NYU has alerted me to his excellent post, found here on Balkinization, also arguing for a codification of the Miranda public safety exception in terrorist situations.  Here an excerpt from his argument:

Congress [should] . . .  enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Further update:  I’m embarrassed that I didn’t cite co-blogger Orin Kerr’s analysis of this same issue, which can be found here.

Along with my former colleague Erik Luna, I’ve just published an article on mandatory mimimum sentences.  The article, which can be downloaded from SSRN here, tries to find common ground on the issue of revising mandatory minimum sentences in the federal criminal justice system.  Here’s the abstract:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.

Congress has ordered the U.S. Sentencing Commission to study the issue of mandatory minimums.  The Commission will issue a report on the subject in the not-too-distant future, so the subject of our article is hopefully a timely one.

I just ran across this interesting post from John Lott, who discusses whether the election of Senator Al Franken was due to votes from felons ineligible to vote.  Here’s a snippet of the argument:

Senator Al Franken likely owes his Senate victory to felons. With a razor thin victory over Senator Norm Coleman in 2008 of just 312 votes, felons convicted of crimes such as murder, rape, robbery, and aggravated assaults may have given Democrats the filibuster proof sixtieth vote that allowed Obamacare to be passed.  Americans have good reason to ask how this could happen. Consider this:

–A conservative watchdog group Minnesota Majority has gone through voting records reportedly finding that at least 341 convicted felons voted illegally in just two of Minnesota’s 87 counties during the 2008 general election.  Undoubtedly other felons voted illegally in other counties.

– After culling through 500 initial allegations of felons illegally voting, the Ramsey County Attorney’s Office told The Minneapolis Star Tribune Monday that they are seriously investigating about 180 cases.  Another 28 felons have already been charged. Hennepin county, which includes Minneapolis, winnowed 451 initial cases down to 216 that they are still looking at.  Some other felons have already been charged.  Both the Ramsey and Hennepin county attorneys are Democrats.

Whether one believes that those two counties account for 341 or possibly well over 400 felons illegally voting, the 2008 Senate vote was so close and research finds that felons vote so overwhelmingly for Democrats that the odds are quite likely that felons from those two counties gave Al Franken the election.  

Continue reading ‘Was Senator Franken’s Election Due to Illegal Votes from Felons?’ »

  The Denver University Law Review has just published my latest article, entitled “Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provisions.”   The article deals with the question of appellate review of denials of assertions of crime victims’ rights by federal district courts.  

  There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants.  For further information on the argument, the abstract can be found below.

Continue reading ‘A Crime Victim’s Right to Appellate Review?’ »

Over at Sentencing Law and Policy last week, Professor Doug Berman had this interesting post on the recent conviction of a hacker who hacked into Sarah Palin’s Yahoo mail account.

 One of the intriguing questions that he raises is whether Sarah Palin would be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced.  The answer to that question, I believe, is clearly “yes.”  

The indictment in the case, found here, alleges (in count 3, one of the counts of conviction) that the defendant  ”in furtherance of the commission of a criminal and tortious act in violation of the laws of the United States and the State of Tennessee, including aiding and abetting other violations of 18 U.S.C. § 1030(a)(2)(C) . . . ; and tortious invasion of privacy, intentionally and without authorization, and in excess of authorization, accessed a protected computer by means of an interstate communication and thereby obtained information . . . .” 

The CVRA requires that a person be “directly and proximately” harmed by an offense to be protected by the statute.  Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status. 

Sarah Palin has condemned the crime  – and applauded the recent verdict – on her Facebook page.  It is probable that the Probation Officer preparing the pre-sentence report will contact her.  Perhaps she will want to pass along comments directly to the judge as well.  If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.

In the runup to the elections in Britain, Labor Prime Minister Gordon Brown has just made what is being described as “major gaffe” by a host of observers.  He called a woman (a Labor supporter) who raised immigration concerns with him directly a “bigoted woman.”  The remark was caught on a microphone that Brown forgot he was wearing.  Coverage can be found on this link or on the youtube video inserted here. 

[youtube]http://www.youtube.com/watch?v=yEReCN9gO14[/youtube]

The 2010 U.S. News and Word Report law school rankings have just been released, and can be found here.  As has been discussed elsewhere, these rankings are flawed … but, at the same, are an influential fact of life.

Over at Crime and Consequences, Kent Scheidegger has a couple of interesting posts on former death row inmate Timothy Hennis.  He was found guilty yesterday of premeditated murder by a military jury, even though he has long been listed on the “innocence list” maintained by the Death Penalty Information Center. 

Of course, it is possible to make a mistake in assembling a list of innocents.  By the Death Penalty Information Center, quoted in the New York Times (as recounted on the blog) has this curious defense of including Hennis on the list:

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.  Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit.   If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

Here’s standup comic Demetri Martin on his two years at NYU Law School and the “Word of the Day” game.  Good stuff.

[youtube]http://www.youtube.com/watch?v=EvG8FLNPVFE&feature=player_embedded[/youtube]

Hat tip to TaxProfBlog.

On Wednesday, President Obama nominated University of Utah law professor Scott Matheson for the Tenth Circuit.  This is the kind of kind consensus nominee for a judgeship that deserves wide support.

  Matheson (a colleague of mine at the law school school) has a resume that makes him a extremely well qualified for the federal bench.  As the White House press release on the nomination explains:

Scott M. Matheson currently holds the Hugh B. Brown Presidential Endowed Chair at the S.J. Quinney College of Law, University of Utah, where he has been a member of the faculty since 1985.  He served as Dean of the Law School from 1998 to 2006.  He also taught First Amendment Law at Harvard University’s Kennedy School of Government from 1989 to 1990.

While on public service leave from the University of Utah from 1993 to 1997, Matheson served as United States Attorney for the District of Utah.  In 2007, he was appointed by Governor Jon Huntsman to chair the Utah Mine Safety Commission.  He also worked as a Deputy County Attorney for Salt Lake County from 1988 to 1989.  Prior to joining the University faculty, Matheson was an associate attorney from 1981 to 1985 at Williams & Connolly LLP in Washington, D.C.

Matheson was born and raised in Utah and is a sixth generation Utahn.  He received an A.B. from Stanford University in 1975, an M.A. from Oxford University, where he was a Rhodes Scholar, and a J.D. from Yale Law School in 1980.

     Matheson is widely regarded as cautious moderate rather than an activist liberal.  Having worked as a prosecutor in both the state and federal systems, he has a good understanding of the day-to-day realities of modern law enforcement.  And his “paper trail” reveals someone who is firmly in the mainstream of American law.   Presumably this is why, when the Matheson nomination was announced, Utah Senator Orrin Hatch was quick to offer this statement of support:  “I’m pleased President Obama has nominated Scott Matheson to fill the vacancy on the Tenth Circuit. I’ve known Scott a long time and he is a capable, bright attorney whose experience has prepared him for judicial service. The Matheson family has had a significant impact on Utah and can rightly be proud of Scott’s nomination.”

  Unfortunately, however, a few conservative bloggers have found something sinister about the timing of the nomination.  The Weekly Standard, for example, was quick to opine in this blog post that “the timing of this nomination looks suspicious” given that Scott Matheson’s brother, Jim Matheson, is a Democratic congressman who is undecided on how to vote on Obamacare.   A few other right-wing blogs have echoed this theme.

  Unfortunately for conspiracy theorists, the facts show that the Scott Matheson nomination has nothing to with the health care debate.  The Tenth Circuit vacancy that the Matheson was just nominated to fill was created on May 5, 2009, when another University of Utah law professor — Michael McConnell — resigned his judgeship to accept a teaching position at Stanford Law School (press release here).  Within a matter of days, it was widely understood in the Utah legal community that Matheson would be the front runner for the nomination.  He was the obvious choice for the Obama administration, given Matheson’s legal acumen, extensive experience in state and federal public service, and long Democratic political connections (his father, Scott Matheson, Sr., was a well-regarded and moderate Democratic Governor of Utah 1977 to 1985 and Scott himself ran for Governor in 2004)  After that, the Obama administrator presumably pondered the choice — their delay in moving forward on nomination having drawn the attention of this blog and many other commentators.   

  I can add on factoid on the timeline to the nomination.  In approximately mid-January, my wife and I were both contacted by the American Bar Association in connection with the ABA evaluation process.   The fact that the ABA was evaluating Matheson at that time means that the Admininstration had already made the determination to move foward with the nomination — and, indeed, had decided at least a month or two earlier, as an FBI background check would automatically precede an ABA investigation.   Given that the ABA was evaluating Scott in roughly January, one would expect an announcement roughly six weeks later – exactly as happened here.

  While I don’t have inside knowledge of the timing, others who do are quick to scoff at the idea of any “vote buying” with the nomination.  According to the Salt Lake Tribune story on the issue, Senator Hatch said he knew Scott Matheson was going to be the nominee more than a month ago and disputes any idea that Obama was trying to get a vote for the nomination.  “I can assure you [of] that,” Hatch said. “I don’t think Jim [Matheson] would change because of it anyway.”

  I hope that conservatives will not let understandable concern about some of the Obama Admistration’s other initiatives cloud their judgment when something comes along that should be supported.  Even in Utah, Obama had a lot of left-wing activists he could have nominated for this Tenth Circuit vacacy.  Scott Matheson is precisely the kind of restrained, consensus choice that conservatives should join Senator Hatch in applauding.

[youtube]http://www.youtube.com/watch?v=yo7HiQRM7BA[/youtube]I’m at an academic conference at Stanford Law School this weekend and have had my attention drawn to the latest internet sensation: The “Demon Sheep” Video.  The video was produced for Carly Fiorina’s Republican  Senate campaign.  It is a 3 and 1/2 minute “attack ad” against Tom Campbell, a respected former Stanford law professor and congressman. 

    To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes. 

  The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard:  “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.”  (Read the whole thing here.)

  The ad is being widely lampooned across the internet (example here).  To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.

  The ad seems a bit over the top to me.   While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity.  I close with [insert your favorite sheep pun here ...]

Update:  A reader suggests I should have closed with any of the following:

1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)

  I have previously argued that the trial judge presiding over the murder trial of Scott Roeder for killing abortion doctor George Tiller should not give the jury a manslaughter instruction.  Yesterday the trial judge reached the same conclusion, declining to give such an instruction.  The judge’s ruling will force the jury to essentially choose between the two options of guilty of murder or not guilty of anything.    I trust that the jury will do the only thing that evidence supports: return a guilty verdict.

Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber.  Today’s Wall Street Journal has this excellent editorial forcefully criticizing the Administration’s decision to do so.  Here’s an excerpt:

On “Fox News Sunday,” Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made “by the Justice Department and the FBI” and insisted they got “valuable intelligence.”

This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.

It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn’t even exist yet. They haven’t pulled it together.

Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.

And worse. As a Wall Street Journal account of last week’s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn’t decided whether to use it domestically. In any event, that’s moot until there is an HIG team.

As the facts are emerging, it appears that this was a mistake of the first order.  Abdulmutallab admitted he was from al Qaeda and was speaking “openly.”  But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.

It is instructive to compare the solicitude for Abdulmutallab’s Miranda rights with this headline story  in today’s news:  ”Report: Al-Qaeda Aims to Hit U.S. with WMDs:  Huge Attack is Top Strategic Goal, Not ‘Empty Rhetoric,’ Ex-CIA Official Says.”  Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been questioned further rather than Mirandized?  Unfortunately, we will never know.

Over at Crime and Consequences, former federal prosecutor Bill Otis has this insightful analysis about the interrogation of the Christmas day bomber, who reportedly was given Miranda warnings and then stopped providing useful information shortly thereafter.  Otis quotes the Washington Post’s editorial on the subject, which attacks the administration as follows:  

UMAR FAROUK Abdulmutallab was nabbed in Detroit on board Northwest Flight 253 after trying unsuccessfully to ignite explosives sewn into his underwear. The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.

It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.

Otis goes on to argue, quite persuasively to my mind, that the failure here was not a one-time, bureaucratic screw-up, but rather a larger strategic failure:

What the Post still fails to understand is that the administration’s “myopic, irresponsible and potentially dangerous” blunder in this case was less a result of one bureaucratic miscommunication than of the inherent confusion at the base of its thinking about terrorism and the law.  As long as there is indecision about whether violent jihadists should be treated as standard criminals or as the illegal combatants they are, blunders like this are inevitable.  The administration’s policy is not the nuanced approach the Post takes it to be.  It is  wishful thinking masquerading as a nuanced approach.

The analysis seems spot on to me.  I can’t for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab.  While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab’s interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.

Otis concludes by suggesting that this mistake is retrievable.  Quoting Scott Johnson, Otis urges the Adminstration to get Abdulmutallab out of the civil justice system, so that further questioning can be pursued:

The United States Attorney can dismiss the indictment against Abdulmutallab and turn Abdulmutallab over to the armed forces of the United States. I see no reason why Abdulmutallab can’t be detained as an enemy combatant available for questioning as the president sees fit. Unless I’m missing something, it’s not too late to try to rectify the mistake.

This seems like perfectly sensible advice to me.  Whatever one thinks about the ultimate place of trial for Abdulmutallab (civlian vs. military court, for example), the best place for obtaining information is clearly not to the civil justice system. 

  The ABA Journal has this short article on the rising number of federal judicial clerkship applications.  It contains the interesting factoid that there was a 66% increase in the number of on-line applications for federal clerkships last hiring season.   Apparently the number of applications was so great that some judges simply stopped reading them.

There has been lots of media attention to the Kansas abortion case, in which defendant Scott Roeder plans to tell a jury that his slaying of Wichita doctor George Tiller was voluntary manslaughter.  Typical is this New York Times article. 

The defendant plans to argue that what would otherwise seem to be cold-blooded, first degree murder was in fact voluntary manslaughter because it was necessary to save unborn children. 

The Kansas voluntary manslaughter provision, found here, provides:

Voluntary manslaughter is the intentional killing of a human being committed:
(a) Upon a sudden quarrel or in the heat of passion; or
(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.

Sec. 21-3211 is a combined self defense and defense of others provision, found here, which provides:

(b)   A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (emphasis added)

While the trial judge was initially inclined to allow Roeder to press his defense, the judge recently stayed proceedings to consider the prosecution’s argument that no killing was “imminent” and therefore the defense is not available. 

I have not studied Kansas case law specifically, so I can’t specifically on the merits of the prosecution’s filing under Kansas law.  (Update: the prosecution brief is found here.)  But reasoning from general principles of criminal law, the prosecution’s argument seems quite well-founded.  The imminence requirement rests on (among other things) the notion that the defendant has no other option than to use force.  Here Roeder had ample time to pursue other options, and no reasonable juror could find otherwise.  According to the Times article, the facts of the case are these:

On a balmy Sunday morning, Roeder got up from a pew at Wichita’s Reformation Lutheran Church at the start of services and walked to the foyer, where Tiller and a fellow usher were chatting around a table. Wordlessly, he pressed the barrel of a .22-caliber handgun to Tiller’s forehead and pulled the trigger.

If that is a situation in which a defendant is allowed argue that death of another was “imminent” requiring a violent response, than the floodgates are truly open.

Update:  An insightful commentor on my initial post drew my attention to Sec. 21-3211(a), found here, which provides:

(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.

This provision obviously greatly strengthens my initial conclusion, because no one can plausibly argue that an abortion is “unlawful” force.

This flow chart will help you determine the answer. 

Thanks to Tom Smith over at The Right Coast for the pointer to Instapundit.