The Volokh Conspiracy

The case is People v. Richardson, decided by the Michigan Supreme Court Friday. The big dispute is not about the law, but about whether the instructions were clear enough; but many cases indeed turn on that very question. If you’re interested in self-defense cases as they are actually litigated — especially in situations where the facts are ambiguous (was the defendant reasonably afraid of imminent death or great bodily harm, or was the threat over and the defendant attacked just because he was angry or worried about harm at some future time?), where the jury might well have been confused, and where the instructions weren’t as clear as they could have been — you might check this out.

The recent controversial acquittal of Casey Anthony has stimulated efforts in many states to enact “Caylee’s Law” as a response. The law would require parents to report a missing child to the authorities within 24 hours, and the death of a child within 1 hour. If they fail to do either, they would be guilty of a felony (a federal one if the law is enacted by Congress).

Radley Balko has a good column explaining the many shortcomings of this idea. As he points out, high-profile criminal cases often stimulate demands for ill-advised laws, even when the case in question is extremely atypical:

Laws named after crime victims and dead people are usually a bad idea. They play more to emotion than reason. But they’re disturbingly predictable, especially when they come after the death of a child. ….

There are myriad other problems with the one-hour requirement. What if a child dies while sleeping? When would you start the clock on the parent’s one-hour window to report? From the time the parent discovers the child is dead, or from the time the child actually dies? If it’s the former, can you really believe what a parent tells you if he knows a felony charge hinges on his answer? What if a parent or babysitter missed the deadline because she fell asleep at the time the child was playing outside and suffered a fatal accident?…

The portion of the bill that requires a parent to report a missing child within 24 hours is just as fraught with problems. When does that clock start? From the time the child actually gets abducted, gets lost, or is somehow killed, or at the time the parents noticed the child was missing? How do you pinpoint the time that they “noticed”?….

The law and the attention it attracts could also cause problems of overcompliance. How many parents will notify the authorities with false reports within an hour or two, out of fear of becoming suspects? How many such calls and wasted police resources on false alarms will it take before police grow jaded and begin taking note of missing child reports, but don’t bother investigating them until much later? How many legitimate abductions will then go uninvestigated during the critical first few hours because they were lost in the pile of false reports inspired by Caylee’s Law?

This is not the first time that a highly unusual but much-publicized case has led to this kind of overreaction. Consider the dubious “zero tolerance” policies enacted after Columbine or Megan’s Law, enacted in reaction to a rare case of child rape by a stranger.

Why are these laws so popular with voters? Part of the explanation is an understandable sympathy with the victims. But a logical and knowledgeable electorate would still ask serious questions about the potential costs and benefits of the proposed laws before supporting them – especially if, as in this case, the proposed law might actually undercut crime-fighting efforts by wasting law enforcement resources. The very rare parents who deliberately kill their children and then try to cover up the evidence are unlikely to report what happened merely because of this law. A conviction for murder is a much greater threat than a conviction for violating Caylee’s Law, unless the punishments for the latter are going to be truly draconian (which would be problematic in its own right). On the other hand, lots of innocent parents will probably file reports just to avoid even a slight risk of prosecution, thereby burdening law enforcement agencies with lots of useless paperwork and false leads.

It seems likely that political ignorance is an important part of the story here. The public sees the high-profile case, and has a knee-jerk desire to “do something about it.” Most voters don’t realize how rare such cases are, and also know very little about the potential downsides of proposals like these. And, because political ignorance is rational, few will take the time and effort to investigate the evidence and deliberate carefully before forming an opinion. For their part, politicians hungry for votes and activists hungry for media attention are more than willing to cater to the public’s demands.

It’s unrealistic to expect rationally ignorant voters to devote significant time and effort to studying proposals like Caylee’s Law. But they should at least adopt Ted Frank’s Law as a helpful heuristic:

My rule of thumb is a strong presumption that any law named after a victim is poor public policy enacted by legislators who confuse voting against a law with voting against an innocent person…

Ted’s rule isn’t perfect. Once in a blue moon, a law named after an atypical but highly publicized crime victim really will do more good than harm. But it’s likely to be correct a lot more often than not. Indeed, Frank’s Law is so logical and simple that one wonders why most voters haven’t adopted it already. Sadly, the answer may be that it’s rational for ignorant voters to do a poor job of evaluating the information they do have. In the wake of a terrible tragedy, it’s much more emotionally satisfying to call for decisive action to save the next Caylee Anthony than to hold back on the grounds that there may be nothing we can do.

UPDATE: Ted Frank has some thoughts of his own on Caylee’s Law here.

UPDATE #2: Maia Szalavitz of Time has some further information on the flaws of Caylee’s law and the harm caused by past laws enacted under similar circumstances.

Held, by the Indiana Supreme Court: A drunken passenger in a car that is pulled over for a traffic violation is guilty of public intoxication, on the ground that “established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute. ” (citing Miles v. State, 247 Ind. 423, 425, 216 N.E.2d 847, 849 (1966)).

What a strange result, and as far as I can tell, entirely avoidable. First, the Miles case seems easily distinguishable. In Miles, the person arrested was found by the officer parked by the side of the road with the window down, and thus was at least plausibly in “public.” In contrast, as I understand Moore, the defendant was only stopped by the side of the road because the police officer seized Moore and forced Moore to be stopped by the side of the road when the officer pulled over the vehicle.

Under the principle of the venerable case of Martin v. State, 31 Ala. App. 334, 12 So.2d 427 (1944) — taught in nearly every 1L criminal law course — I would think this makes a critical difference: An officer can’t force a drunken person to be in “public” and then arrest the person for being drunk in public. As the Martin court put it:

[A] voluntary appearance is presupposed [by the statute]. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.

I would think the same principle applies when the defendant was forcibly stopped along the highway.

Thanks to Howard Bashman for the link.

The Ohio Supreme Court just held this yesterday in In re D.B.; it’s a very important decision, and since the court expressly rested its holding on its view of the U.S. Constitution, not of the Ohio Constitution (see footnote 2 for the reason), I think there’s a substantial chance — not a certainty, but a strong likelihood, at least in the 30-40% range — that the U.S. Supreme Court will agree to consider the case.

The case involved a 12-year-old boy, D.B., who had sex with an 11-year-old boy, M.G. D.B. was charged both with forcible rape of M.G. and with statutory rape, which criminalizes any sex with someone who “is less than thirteen years of age.” (A different statute makes it a crime for an over-18-year-old to have sex with a 13-to-16-year-old, so don’t think that the general age of consent in Ohio is 13.) The juvenile court judge convicted D.B. of the statutory rape, but not of the forcible rape, gave him probation and a suspended sentence, and ordered him “to attend counseling and group therapy.”

Of course, if there was no forcible rape, then M.G. as well as D.B. would be guilty of statutory rape, since M.G. also had sex with someone (D.B.) who was “less than thirteen years of age.” The prosecutor, though, prosecuted only D.B. In this case, that prosecutorial choice was basically mandated as to most of the sexual incidents by the prosecutor’s view that the sex was forced by D.B. (One of the nine counts of the indictment was for statutory rape alone, while the others were for forcible rape or statutory rape; but even there the prosecutor might well have thought the sex was forced, like he thought it was in the other eight incidents, but just thought the evidence was inconclusive on the subject.)

But in other cases, a prosecutor who doesn’t think the sex was forcible might choose whom to prosecute based on who he thought was more culpable, or used undue but not illegal pressure. And the decision to prosecute only one of the parties might well be driven by the concern that if both are prosecuted, both will refuse to testify, and neither can be convicted (though in relatively unusual cases, such as this one, there may be third-party witnesses). Of course, a prosecutor might choose whom to prosecute based on his personal hostility to one or another party or the party’s family, or based on which case will play best in the media, or on other bases that I think are generally improper; I have great respect for most prosecutors, but there are bad people in every profession, and even good people sometimes do bad things. Still, there are certainly well-intentioned as well badly intentioned potential exercises of prosecutorial discretion in such cases.

In any event, the Ohio Supreme Court basically held that this discretionary approach to statutory rape, under which two people would routinely be guilty but the prosecutor would choose which one to prosecute, violates the federal Due Process Clause and Equal Protection Clause: The statute is “unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement.” And, “[b]ecause D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense,” so “[a]pplication of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.” (The opinion was unanimous on the first, Due Process Clause, theory, though one judge didn’t endorse the Equal Protection Clause theory.)

If this reasoning is accepted throughout the country, the results would be sweeping. First, many states outlaw all sex — without exceptions for people close in age — not just with under-13-year-olds, but with under-16-year-olds or, in the case of California, under-18-year-olds. (Sex among 15-to-17-year-olds is a misdemeanor, in theory for both parties.) All those statutory rape laws would be cast into doubt, when applied to sex among minors who are under the age of consent. [UPDATE: I originally left then "when applied to sex among minors who are under the age of consent" implicit, since that's what the rest of the post is discussing, but then decided to make it explicit.]

But beyond this, prosecutorial discretion (and police discretion, which I take it would be no more permissible under the court’s opinion) has, rightly or wrongly, long been a part of the American legal system. Speeding laws are routinely enforced against some but not others, since there isn’t the manpower to enforce them against everyone. In conspiracy cases, prosecutors often choose whom to prosecute for the more serious crimes and whom to prosecute for the less serious crimes, even though all the conspirators are formally guilty of all the crimes. And these choices are often based on the prosecutors’ judgments about who more deserves punishment — similar to judgments in statutory rape cases about who more deserves punishment — as well as about who is more likely to provide helpful evidence.

And the list could go on. I acknowledge that the enforcement of the statutory rape law is more necessarily linked to prosecutorial discretion than the enforcement of some other laws. But the general point remains: prosecutorial discretion, including discretion based on prosecutorial judgment about who is more morally at fault (even when everyone is legally at fault) is a routine and institutionalized aspect of the enforcement of many laws. [UPDATE: It's generally unconstitutional to exercise such discretion in ways that discriminate based on the defendant's race, religion, or political affiliation, or based on sex in cases where sex discrimination is constitutionally forbidden (see item 4 in the next paragraph on why that might not apply to statutory rape cases); but outside these forbidden bases for discrimination, prosecutorial discretion has long been seen as constitutionally permissible.]

States could preserve some of their ability to criminalize nonforcible underage sex by setting up clear rules about which of the parties will be prosecuted, for instance (1) the older party, (2) the party who received rather than provided genital stimulation (assuming all the conduct was oral or anal sex, and all or most of it in the relationship went one way), (3) the party that could be proven to have provided some supposedly undue inducement for the act, even if the inducement wouldn’t suffice to make the act illegal among adults, or even (4) the boy, in heterosexual contexts (see Michael M. v. Superior Court (1981)). But this would deprive prosecutors of the power to decide, based on the circumstances of each case as they see them, which party is actually the more culpable one. Perhaps prosecutors should indeed lack this power, for reasons of equality or the “rule of laws, not of men”; but it is at least sometimes a useful power, and a power that they have long been understood as having.

(It’s not clear, by the way, whether under the Ohio Supreme Court’s reasoning a statutory rape law that’s broadly applicable to both parties, but routinely enforced against only one, might be constitutional if there are constraints on prosecutors’ discretion that do not require proof beyond a reasonable doubt, for instance rules that require prosecutors to show the judge by a preponderance of the evidence that the defendant provided undue inducement to the alleged victim. The theory for the constitutionality of such a law is that it preserves the requirement of proof beyond a reasonable doubt for the elements of the offense, and prevents excessive prosecutorial discretion through the separate preponderance-of-the-evidence showing. But I’m not sure what the Ohio Supreme Court would think of that.)

Because of the scope of this ruling, because it is such a departure from the traditional view of prosecutorial power, and because it is done by a state supreme court in the name of the U.S. Constitution and not just of the state constitution, I’m inclined to think that there’s a substantial probability that the U.S. Supreme Court will hear the case. And if it does, I think most of the Justices will vote to reverse.

The Equal Protection Clause analysis in this case strikes me as easy to reverse on the facts of this case (and recall that this was an as-applied challenge, focusing on the facts of this case). The prosecutor apparently thought that D.B. and M.G. were very differently situated — he thought D.B. forced M.G. into sex, and even though the judge disagreed, the prosecutor’s belief on this point should suffice to justify the difference in treatment.

And as to the Due Process Clause, I think the U.S. Supreme Court Justices will conclude that the law contemplates only what is the traditional practice of prosecutorial discretion, that the “process” that defendants are “due” has to be determined in light of this traditional practice, and that such a traditionally accepted feature of our system therefore does not violate the Due Process Clause. That, at least, is my prediction, worth every penny you paid for it; and keep in mind that all the Justices of the Ohio Supreme Court — which, by my count, includes six Republicans and one Democrat — disagree with my analysis on this.

Thanks to How Appealing for the pointer to the Ohio Supreme Court decision.

The brief supporting the petition for rehearing was filed in Barnes v. State, the decision Orin blogged about last month. The brief was also signed by 31 of the 100 Indiana House of Representatives members, but the overwhelming support in the Senate struck me as especially striking.

The brief argues that the Indiana self-defense statute, which allows the use of force “if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle,” is applicable whether the unlawful entrant is an ordinary citizen or a police officer. Neither the Barnes majority nor the dissent cited this statute, and my quick look through the briefs suggests that the parties didn’t mention it on appeal; I suspect that means they didn’t bring up at trial, either.

Yesterday I posted about Fairfax County teacher Sean Lanigan, falsely accused of child molestation. Here’s a bit more:

(1) Lanigan answers Post readers’ questions here. He opines that the accuser’s name should not be published, as she is a troubled 13 year old girl. I was already reconsidering my view on this, and I suppose I ultimately agree with Lanigan that her name shouldn’t be published–in part because I’ve learned that the Post also doesn’t publish the names of minors accused of crimes. [Apparently, however, the accuser hasn't faced even any internal discipline from the county school system. Good thing for her she decided to make a false allegation of sexual abuse instead of, say, bringing a Tylenol from home.]

(2) I have two extended family members (who are part of completely different branches of the family and are unknown to each other) who were falsely accused of molesting their own children and arrested, just so their wives could get an advantage in custody/divorce proceedings (neither was prosecuted, but much damage was done to both men and their children as their wives pursued their respective vendettas). I also know people who suffered serious abuse that was consistently ignored by authority figures. It seems like somehow a lot of energy gets expended on pursuing false accusations, and not enough on getting the bad guys (and gals). I wish there was an obvious solution, but I don’t have one.

(3) Speaking of false accusations against teachers, Hans Bader has been all over a story that hasn’t received nearly attention:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like [Lanigan] will end up being fired even if they are acquitted by a jury of any wrongdoing, and may very well be innocent. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

Most colleges have historically required “clear and convincing” evidence of guilt. This sensible standard requires less absolute certainty about guilt than the “beyond a reasonable doubt” standard used in criminal prosecutions, but more certainty than the mere 51% chance (preponderance) standard demanded by the Education Department. But under pressure from the Education Department, colleges across the country have now abandoned this safeguard against false accusations.

I admit to less certainty than Bader about what the appropriate standard is for accusations of misconduct in the academic context, especially for sexual assault as opposed to “harassment,” the latter of which universities (in part under pressure from DOE) often interpret way too broadly (see relevant discussion in my book, You Can’t Say That!). But I do know that the Department of Education has no business dictating a preponderance of the evidence standard to universities nationwide. Bader provides many links to legal and policy objections to DOE’s new policy.

A Fairfax County gym teacher was falsely accused of molesting a twelve-year old student who had a vendetta against him, and was prosecuted based on the flimsiest of evidence (basically, the word of the student who held a grudge, and her friend, with contrary eyewitness and physical evidence). It took a jury all of forty-seven minutes to acquit him. The Washington Post has the story here.

Two comments: (1) Given the facts related in the Post, this prosecution seems to show, at best, incompetence on the part of Fairfax Commonwealth’s Attorney Raymond F. Morrogh. Unfortunately, it’s rare that any consequences follow from incompetence or even deliberate malfeasance by a prosecutor; (2) The Post declined to publish the accuser’s name because she’s “a minor.” Fiddle-faddle. She was mature enough to hatch a scheme that would send an adult to jail to satisfy a grudge against him. Adult misbehavior should have, if not adult consequences, at least consequences. And how are other adults to protect themselves from her accusations if she’s allowed to maintain anonymity?

UPDATE: The Post has an update to its story. Given the following, Detective Nicole Christian, the lead detective in the case, needs to be investigated and potentially disciplined:

But when others – staff, parents – tried to tell Christian anything she didn’t want to hear, she threatened them with prosecution for obstruction of justice, the staff members and parents said. School district investigator Steve Kerr’s investigative report, written after Lanigan’s acquittal, confirmed those claims, noting that: “Because of the jury’s decision, the detective [Christian] advised that she will not pursue criminal charges against [staff member] or [staff member].”

Wow! Christian also refused to listen when the accuser’s friend and co-accuser tried to recant.

The Post also explains its decision not to print the accuser’s name. I’d find its reasoning far more persuasive if it would also decline to print suspects’ names.

Finally, the update makes Fairfax County prosecutors, especially Christian, look even worse than the original story, and the case even weaker.

The old answer seemed to be “yes,” but in recent years the states have split on the subject. State v. Carlin, decided by the Alaska Supreme Court last Friday, switches Alaska from the “yes” column to the “no” column, partly because of growing concerns about victims’ rights:

While abatement [i.e., erasure of the conviction -EV] is contrary to the victims’ rights under the Alaska Constitution, relying on the presumption of guilt after conviction to leave the conviction intact is contrary to the defendant’s right to appeal. Therefore, we choose the middle path, electing to follow those courts that allow the appeal to continue upon substitution. These courts have provided that either the State or the defendant’s estate may request substitution, allowing another party to be substituted for the defendant. Specifically, we agree with the high courts of Washington and Maryland that the defendant’s estate may substitute in for the deceased appellant.

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.

CNN reports. She “faces child endangerment and contributing to the delinquency of a minor charges, police said,” but she could also be prosecuted as an aider and abettor of the underlying battery by the son. (Encouraging someone to commit a specific crime, including when the crime is in progress, is a form of aiding and abetting.)

A video of the fight “was posted on YouTube and police say they learned about it from a tipster.” Note that encouraging a child to act in lawful self-defense, or instructing the child how to better defend himself, would not be a crime; but from the story there’s little reason to think that this is what the mother was doing.

A couple of weeks ago, I blogged about English police allegedly telling people not to use wire mesh in their windows, because it could injure burglars.

Some readers expressed doubt about the accuracy of the news stories on which I relied, so I e-mailed the Surrey Police Department for more information. Here’s what I learned.

1. The Surrey Police Department reports that it recommends against the use of “certain crime prevention measures such as the use of barbed wire,” which includes “anything with spikes or jagged edges.” “[I]f injury results on the premises [from the spiky or jagged material], the owner could conceivably be faced with claims for damages under the Occupier Liability Acts.” I assume that their advice relates to protection against burglars, since that was the context of my question. I quote the entire e-mail below.

2. The Department says that it does not recommend against the use of wire mesh. This is inconsistent with the news stories on the subject. (See, for instance, the Daily Mail story that I linked to, and the Sevenoaks Chronicle story on which the Daily Mail story seemed to be based.)

3. So as to wire mesh, we have at least two possibilities. First, it’s possible that the news stories misreported the views of the police officers who were quoted or paraphrased in the story, and that in fact the police department doesn’t counsel against the use of wire mesh (but only counsels against “anything with spikes or jagged edges”); this seems to be the view of Don Arthur (Club Troppo).

Second, it’s possible that the news stories were accurate, and that different police sources give different advice on the subject — some police officers did urge people not to put up wire mesh, because of the risk of lawsuits by burglars (as reported by the newspapers), even though that is not the police department’s official position.

In any case, here’s the e-mail from the Surrey Police:

Continue reading ‘More on the English Wire Mesh Story’ »

[UPDATE: For a somewhat different account of this, from the Surrey Police Department, see this follow-up post.]

So reports the Daily Mail (UK):

Residents in Surrey and Kent villages have been ordered by police to remove wire mesh from their windows as burglars could be injured….

Locals had reinforced their windows with wire mesh after a series of shed thefts but were told by community police officers that the wire was ‘dangerous’ and could lead to criminals claiming compensation if they ‘hurt themselves’….

Here’s the extended quote from “[c]rime reduction officer for Tandridge PC John Lee,” followed by another from a “police source”:

We are constantly advising homeowners to protect their property and the contents of their shed or garage, however, a commonsense approach needs to be taken.

To properly secure your sheds, Surrey Police strongly advises people to invest in items such as good-quality locks and bolts, and not to resort to homemade devices, as this could cause injury….

Homemade devices can cause injury and there have been cases where criminals have sued for injuries they have suffered while committing a criminal act.

We are advising people to do whatever they can to protect their property, but wire mesh is not one of the suggestions we would make.

It’s not clear whether indeed the police ordered residents to remove the wire mesh — in the sense of threatening them with arrest or prosecution if they failed to comply — or just advised residents about the possible risk of tort liability. But in any case, something appalling is going on, either in English tort law, or in English police practices, or both.

I recognize that many American jurisdictions limit the use of unattended deadly spring guns to protect property, and my vague sense is that England does as well. But whether those rules are right or wrong, it seems to me that it’s quite wrong for the law to punish (or impose liability for the use of) basically nonlethal and easily visible defensive mechanisms, of a sort that (unlike spring guns) are extremely unlikely to be inadvertently triggered by emergency personnel, relatively innocent trespassers, and the like.

Thanks to InstaPundit for the pointer.

 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.

So reports the Boston Herald:

The Bay State’s liberal governor yesterday morphed into a tough-on-crime high sheriff who axed the state’s parole board, installed a hard-line prosecutor as the new executive director and vowed to file a tough anti-felons bill ….

Patrick, who opposes the death penalty and pushed to limit public access to criminal records laws during his first term, made the sweeping changes in the wake of an investigation of the parole board’s 2008 decision to spring Dominic Cinelli. Police said Cinelli, who was serving three life sentences before he was released, gunned down Woburn police officer John “Jack” Maguire during a robbery attempt at Kohl’s on Dec. 26….

Continue reading ‘Gov. Deval Patrick’s New Tough-on-Crime Position?’ »

If you want a look at pure cultural defenses that do set up a separate legal rule for people who belong to a particular group, check out Rhode Island General Laws § 15-1-4:

The provisions of §§ 15-1-1 – 15-1-3 shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jewish people, within the degrees of affinity or consanguinity allowed by their religion.

The Rhode Island law dates back to the colonial period. In a similar vein, Colorado and Minnesota follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are “permitted by the established customs of aboriginal cultures.” The Commissioners’ note to the Act says that “The intent is to save those special customs of Indian tribes, of Alaskan natives of various ethnic origins, and of Polynesians, which may not accord with the incest taboos of Western culture.”

Note that the Rhode Island law is not a standard religious accommodation for religiously mandated or motivated behavior; I don’t believe that Jews of the era saw themselves as having a religious command or suggestion to marry their nieces, and of course many didn’t. Rather, Jews thought such behavior was permissible — since the Leviticus 18 incest prohibitions don’t include uncle-niece relationships — and for social reasons thought it was sometimes useful. (I’ve heard as explanations the desireto keep family wealth in the family, and the small number of prospective eligible mates stemming from the small size of the community.) And I assume that the Rhode Island legislators thought the law sensible because they saw the incest ban as primarily a religious purity rule, rather than an attempt to prevent secular harm, and because they thought Jews’ contrary religious understanding deserved respect (perhaps precisely because that understanding was based on the Old Testament).

Nor are the aboriginal culture exceptions like the various special rules relating to Indian tribes, which have been justified on the grounds that the tribes have separate political existence. The exceptions apply regardless of whether the person is a member of a tribe.

So these strike me as truly separate rules for what are seen as separate cultures. I think they’re a bad idea, and probably a violation of the Equal Protection Clause, especially to the extent that “the Jewish people” and “aboriginal cultures” are understood as ethnic categories, or closely linked to ethnic categories. But if you want to see (rare) examples of true cultural defenses under American law, here they are.

UPDATE: Some commenters came to this post expecting to see more on incest generally; you can see that in the post about how the law should treat incest, and, indirectly, in the law and morality post. This post is part of a series on cultural defenses generally, not limited to incest.

Here’s another case showing how American law applies to people with different cultural assumptions from our own, State v. Al-Hussaini, 579 N.W.2d 561 (Neb. Ct. App. 1998); I think the result is correct. Note that in the de minimis case and the mistake of fact hypothetical, the defendant’s claim was that the defendant’s culture was relevant to showing that he lacked the legally required knowledge or purpose (assuming, in the de minimis case, that absence of a sexual purpose did indeed render the conduct not harmful for purposes of the Maine de minimis statute). I don’t think the same reasoning would apply here.

In any case, here’s the case:

Latif Al-Hussaini was convicted of first degree sexual assault on a child, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995). He was sentenced to an indeterminate sentence of 4 to 6 years’ imprisonment, with credit for 13 days spent in custody. The sole issue on appeal is whether or not the sentence imposed is excessive….

Al-Hussaini is a native of Iraq who escaped from his country during the Gulf War and has lived in the United States since 1995. He speaks virtually no English. On November 9, 1996, Al-Hussaini, age 34, participated in an Islamic ceremony in which he was “married” to a 13-year-old girl. There is no dispute that the victim was given away in marriage by her father. After the ceremony, the victim was taken to her new home with Al-Hussaini where intercourse immediately took place. The victim stated she did not consent to intercourse with Al-Hussaini. The victim’s sister, age 14, was also “married” on the same day to another Iraqi man.

Continue reading ‘“Cultural Defenses” and Underage Marriage’ »

In light of the discussion on the cultural defense / de minimis statute thread, it might be helpful to think of another area where culture is relevant under existing law: mistakes of fact.

Consider an example. Theft is often defined as taking another’s property, knowing that it is another’s property. If you take an umbrella from an umbrella stand thinking that it’s yours, and it turns out that it’s not, you’re not guilty of theft (though you might become guilty if you learn that it’s not yours and don’t properly return it, assuming the original owner could be found). Likewise, if you take property think that it’s abandoned, and it turns out that it’s not abandoned, you’re not guilty of theft. It doesn’t matter whether your belief was reasonable or not, so long as it was sincere (or, to be precise, so long as the jury thinks it was sincere, or has a reasonable doubt about the prosecution’s claim that you knew the property was someone else’s). A sincere mistake of fact thus means that you’re not guilty.

Now let’s say that someone picks up a bunch of lumber from the side of the road, and when arrested for theft says “I thought it was abandoned.” It may well be that in our culture this might be an implausible story (let’s assume that this is so), so that the jury would think he’s lying. But say he’s a recent immigrant from a country (let’s call it Afghanistan) in which leaving lumber by the side of the road was a way to signal that anyone is free to take it, much like leaving an old couch or old refrigerator by the side of the road is in our culture often a signal that anyone is free to take it. That would be pretty strong evidence that he may well be telling the truth when he claims that he thought the lumber was abandoned.

Note that the principle that honest mistake of fact precludes liability for theft does not include any “cultural defense” as such. Nor is the claim that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Nor is the claim that all people from Afghanistan necessarily believe that lumber left by the side of the road in America is abandoned. (Some might know the American custom.) Rather, the claim is simply that a person’s culture is relevant evidence in determining what he believed, and that this is relevant when the person’s belief is an element of the legal rule.

The penis-kissing case discussed in the earlier thread is not a mistake-of-fact case, so I don’t want to claim the two examples are entirely analogous. But they are similar: In the penis-kissing case, the de minimis statute provided a defense when, under the circumstances, the defendant’s conduct didn’t seem likely to be harmful. If I’m right that penis-kissing is harmful chiefly because of an inference about the defendant’s likely sexual intentions, then there too the person’s culture is relevant evidence, since it bear on what the defendant intended.

There too the de minimis statute ought not be seen as including any “cultural defense” as such. Nor would the claim be that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Rather, the claim would simply be that a person’s culture is relevant evidence in determining what he intended, and that this is relevant when the person’s belief is an element of the legal rule.

I just reread State v. Kargar, 679 A.2d 81 (Me. 1996), and was reminded how interesting and bloggable the case is (some paragrpah breaks added):

Mohammad Kargar, an Afghani refugee, appeals from the judgments … convicting him of two counts of gross sexual assault in violation of 17-A M.R.S.A. § 253(1)(B) (Supp.1995) (Class A). [Footnote: “... 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: ... B. The other person, not the actor's spouse, has not in fact attained the age of 14 years.”] Kargar contends on appeal that the court erred in denying his motion to dismiss pursuant to the de minimis statute, 17-A M.R.S.A. § 12 (1983). We agree and vacate the judgments.

On June 25, 1993, Kargar and his family, refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed Kargar kissing his eighteen-month-old son’s penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of Kargar kissing his son’s penis in the Kargar family photo album. After her daughter told her what she had seen, the mother notified the police.

Peter Wentworth, a sergeant with the Portland Police Department, went to Kargar’s apartment to execute a search warrant. Wentworth was accompanied by two detectives, two Department of Human Services social workers, and an interpreter. Kargar’s family was taken outside by the social workers and the two detectives began searching for a picture or pictures of oral/genital contact. The picture of Kargar kissing his son’s penis was found in the photograph album. Kargar admitted that it was him in the photograph and that he was kissing his son’s penis. Kargar told Wentworth that kissing a young son’s penis is accepted as common practice in his culture. Kargar also said it was very possible that his neighbor had seen him kissing his son’s penis. Kargar was arrested and taken to the police station.

Prior to the jury-waived trial Kargar moved for a dismissal of the case pursuant to the de minimis statute. With the consent of the parties, the court held the trial phase of the proceedings first, followed by a hearing on the de minimis motion.

The de minimis hearing consisted of testimony from many Afghani people who were familiar with the Afghani practice and custom of kissing a young son on all parts of his body. [Footnote: Kargar testified during the de minimis hearing that the practice was acceptable until the child was three, four, or five years old.] Kargar’s witnesses, all relatively recent emigrants from Afghanistan, testified that kissing a son’s penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved. [Footnote: Kargar testified during the de minimis hearing that his culture views the penis of a child as not the holiest or cleanest part of the body because it is from where the child urinates. Kargar testified that kissing his son there shows how much he loves his child precisely because it is not the holiest or cleanest part of the body.] The witnesses also testified that pursuant to Islamic law any sexual activity between an adult and a child results in the death penalty for the adult.

Kargar also submitted statements from Professor Ludwig Adamec of the University of Arizona’s Center for Near Eastern Studies and Saifur Halimi, a religious teacher and Director of the Afghan Mujahideen Information Bureau in New York. Both statements support the testimony of the live witnesses. The State did not present any witnesses during the de minimis hearing. Following the presentation of witnesses the court denied Kargar’s motion and found him guilty of two counts of gross sexual assault.

[I.] Maine’s de minimis statute provides, in pertinent part:

1. The court may dismiss a prosecution if, … having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds the defendant’s conduct:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime.

Continue reading ‘“Cultural Defenses,” Crime, and De Minimis Violations’ »

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.

Do innocent suspects ever confess to crimes?  Yes, and sometimes with extensive detail about the crime.  How could this happen, short of police coercion?  The NYT reports on research by UVa law professor Brandon Garrett on the question.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation. . . .

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

A few weeks ago, Israeli newspapers reported that an Arab man had been convicted of “rape by deception” after having intercourse with a Jewish woman while pretending to be a Jew.

Various blogs ran with the story. The more sober blogs noted that the crime of rape by deception was established as a crime in Israel in a context having nothing to do with inter-ethnic/religious sex, and various law professors noted the interesting hypotheticals that could arise under this crime.

The more hysterical anti-Israel blogs (do I even need to mention Juan Cole?), by contrast, found that the case reflected a deep illness in Israeli society. For example, Andrew Sullivan:

But it’s the visceral emotional core of this that is so offensive. It’s about racism, religion and the risk of miscegenation. It’s about the deep disgust of some Israeli Jews toward Arabs, upheld by the courts. It’s a variant of the racial sexual panics of the Jim Crow South.

Gideon Levy, an Israeli whose vitriol for his own country puts Sullivan to shame, added:

It was no coincidence that this verdict attracted the attention of foreign correspondents in Israel, temporary visitors who see every blemish. Yes, in German or Afrikaans this disgraceful verdict would have sounded much worse.

It turns out, however, that the victim actually accused the perpetrator of “simple” violent, forcible rape, and the charge of “rape by deception” was a plea bargain (original Hebrew, but here’s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case.

We sometimes see a similar dynamic in the U.S., where, say, a 22 year old is convicted of statutory rape of a 17 year old. This seems absurd, an abuse of prosecutorial discretion, until you learn that the 22 year old was accused of a forcible rape, and the statutory rape charge was a plea bargain.

I would severely admonish Sullivan, Levy and others for leaping to conclusions based on a single, unverified and uninvestigated news story, but I’m not at all certain that I never do the same thing. (Even worse are the various news outlets that reported and embellished the original story (e.g.) without investigating the facts.) However, I do try to post corrections and retractions when I turn out to have made inferences that turn out to be mistaken. We’ll see if Sullivan, et al. do the same. Put it this way: if you read a blog that gave this story an anti-Israel spin and you don’t see a correction in the next day or two, you can cross it off your credibility list.

H/T: Michael Davis and Steven Lubet.

In editing People v. Watson, 990 P.2d 1031 (Cal. 2000), for the entrapment unit of my Criminal Law class, I was struck by the elementary yet common flaw in the concurrence. Here is the fact pattern:

One March evening in 1997, Bakersfield police officers conducted a vehicle theft “sting” operation. They staged an arrest of a plainclothes police officer driving a black 1980 Chevrolet Monte Carlo that belonged to the police department. The arresting officers activated the emergency lights and siren of their marked patrol car and stopped the Monte Carlo. The Monte Carlo’s driver drove into a parking lot and parked. While a group of spectators watched, a uniformed police officer approached the Monte Carlo, ordered the driver out, patted him down, handcuffed him, placed him in the back seat of the patrol car, and drove away, leaving the Monte Carlo behind. The police left the Monte Carlo unlocked with the keys in the ignition to make it easier to take. They wanted to “give the impression [the driver] was arrested and the vehicle was left there.”

A couple of hours later, police arrested defendant after he drove the Monte Carlo from the parking lot. He told the arresting officer that his niece had informed him of the earlier apparent arrest and told him to “come and take” the car. He did just that, intending to use it to “roll,” i.e., to drive it.

Defendant was charged with taking a vehicle. [The question was whether he was entitled to an “entrapment” instruction, and the court said no:] The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense. People v. Barraza, 591 P.2d 947 (Cal. 1979). In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. “[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” [Details omitted. -EV]

Continue reading ‘“Entrapment” Arguments, and False Alternatives’ »