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Wrongful Convictions and Proof Beyond a Reasonable Doubt

By on January 2, 2014 1:11 pm in False accusations

Montgomery v. Commonwealth (Va. Ct. App. Dec. 20, 2013) sets aside a man’s rape conviction, because the supposed victim had come forward (several years after the conviction) to say she made up the story and her admission led her to be convicted of perjury. An excerpt:

In October of 2007, Elizabeth P. Coast, then seventeen, reported that when she was ten years old a neighborhood boy named “Jon” sexually assaulted her while the two were alone in her grandmother’s backyard…. Coast identified Montgomery in a photo lineup using his Hampton High School yearbook photo….

On June 23, 2008, … [the trial court] tried and convicted Montgomery in a one-day bench trial for the assault of Coast. Coast testified under oath that Montgomery had sexually assaulted her in 2000. She described the alleged assault in graphic detail. She said that she did not tell anyone what happened at the time of the assault because she thought her parents “would get mad” and she was “really embarrassed.” She explained that she decided to come forward seven years later because she thought she saw Montgomery at Wal-Mart….

Besides Coast, no other witnesses to the incident testified at Montgomery’s trial. Neither was any corroborating physical evidence that an assault occurred ever presented. The trial judge categorized this case as a “word against word situation.” In reaching his verdict, the trial judge concluded that Coast was more credible then Montgomery because she had “no motive whatsoever” to lie. The trial court then found Montgomery guilty of forcible sodomy, aggravated sexual battery, and object sexual penetration. On April 10, 2009, the trial judge sentenced Montgomery to 45 years in prison, with 37 years and 6 months suspended….

On November 1, 2012, Coast voluntarily made a videotaped statement at the Hampton Police Department. After consulting with counsel

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“The Hyped Campus Rape That Wasn’t”

By on November 7, 2013 5:05 pm in Criminal Law, False accusations

An interesting and troubling column by Cathy Young (Minding the Campus). The opening paragraphs:

If a satirist had set out to write a scathing parody of the campus crusade against rape, he could not have come up with anything more bizarre, or more ridiculous, than the real-life comedy-drama that unfolded last month at Ohio University in Athens, Ohio.

The scandal started, like many scandals do these days, in the social media. On Saturday, October 12, amidst the school’s Homecoming Weekend festivities, photos and a video of two young people engaged in a public sex act near the campus–the man on his knees performing oral sex on the woman while she leaned against a plate-glass window, half-sitting on its ledge–showed up online and promptly spread on Twitter….

Read the whole piece, plus, if you’d like, the linked-to news story on the grand jury’s refusal to indict. (For the sake of completeness, I should note that the story also mentions that the video footage showed digital penetration as well as oral sex, though I don’t think that affects the analysis.) [...]

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The Justice Department’s New Memorandum to Federal Prosecutors on Charging Drug Offenders

By on August 12, 2013 11:25 pm in Crime Victims Rights, War on Drugs

In my last post, I gave a preliminary assessment of Attorney General Eric Holder’s recent speech on reforming charging policy for low-level drug offenders. I pointed out that whether or not this really marks a major policy change depends in large part on the details outlined in an internal memorandum Holder issued to federal prosecutors. Here is that memorandum in all its glory [HT: Jacob Sullum, who makes some good points about the memo and its limitations]. Unfortunately, the relevant section is not much more precise than Holder’s speech or the NY Times account I quoted in my last post. Overall, this is hardly “a major shift in criminal justice policy,” as the New York Times calls it. It looks more like a fairly minor shift dressed up in major rhetorical flourishes.

Here are the relevant guidelines:

[I]n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a
weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

These four exceptions are both vague and broad. They don’t [...]

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Florida’s Self-Defense Laws

By on March 27, 2012 11:59 pm in Crime Victims Rights, Criminal Law, Criminal Procedure, Guns, Self-Defense

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. [...]

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The Machinery of Criminal Justice #6: Equality, Vengeance, and Competence

By on March 16, 2012 10:57 pm in Crime Victims Rights, Criminal Law, Criminal Procedure

In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can’t go into that here.)

Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.

First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.

But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.

What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more [...]

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The Machinery of Criminal Justice #5: Returning Power to the Public in a Lawyer-Driven System

By on March 16, 2012 11:04 am in Crime Victims Rights, Criminal Law, Criminal Procedure

In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more.

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control. Those goods do indeed matter greatly to ordinary citizens. But criminal justice ought to serve more than this single goal to which it has been boiled down.

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

It also hides the workings of the system, leaving outsiders frustrated and mistrustful and insiders free to indulge their self-interests or idiosyncratic preferences. It exacerbates the cycle of pathological politics of crime legislation, helping to provoke draconian referenda in response and later dishonest subversion of those populist measures.

In addition, the machine neglects remorse, apology, forgiveness, healing of relationships, reintegration, and reentry. It creates a semi-permanent underclass of prisoners and ex-cons in exile. It hollows out large swaths of minority neighborhoods. And it deprives countless children of their fathers and women of their husbands and boyfriends, with little hope that these men will return to lives of lawful work and responsible fatherhood.

Whew! That’s a daunting list of problems. It is immensely difficult to reform a system as broken as our punishment factory. Skeptics can dismiss incremental reforms as cosmetic, like straightening deck chairs on the Titanic. More ambitious reforms get attacked from the other side [...]

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The Machinery of Criminal Justice #4: Semi-Privatizing Criminal Justice

By on March 15, 2012 11:05 am in Crime Victims Rights, Criminal Law, Criminal Procedure

In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest that the root problem is the state’s monopoly on criminal justice, and solutions have to involve giving greater roles to victims.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as [...]

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The Machinery of Criminal Justice: The Gulf Between Insiders and Outsiders, and Its Costs

By on March 14, 2012 10:43 am in Crime Victims Rights, Criminal Law, Criminal Procedure

In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples of the tug of war that erupts between the two sides; and explain some of the hidden costs of this gulf.

By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.

Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.

Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders [...]

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The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine

By on March 13, 2012 9:22 am in Crime Victims Rights, Criminal Law, Criminal Procedure, History

In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive [...]

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The Machinery of Criminal Justice: Colonial Criminal Justice as a Morality Play

By on March 12, 2012 10:46 am in Crime Victims Rights, Criminal Law, Criminal Procedure, History, Uncategorized

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because [...]

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Golden Retriever Takes the Stand in New York Criminal Trial

By on August 8, 2011 10:59 pm in Crime Victims Rights, Criminal Law

A golden retriever named Rosie recently became the first judicially approved dog allowed in the witness box for the purpose of comforting a witness while she testifies:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in….

Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress….

[Defense] lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

My wife and I recently acquired a golden retriever puppy, and we love the breed as much as anyone. Nonetheless, I think there is some merit to the defense lawyers’ concerns. A witness with a cute golden retriever sitting next to her almost always makes a better impression on people than [...]

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More on Sean Lanigan and False Accusations

By on May 18, 2011 2:06 am in False accusations, You Can't Say That!

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

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Falsely Accused Teacher Sean Lanigan

By on May 17, 2011 12:41 pm in Criminal Law, False accusations

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. [...]

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Should a Criminal Conviction Be Automatically Vacated if the Defendant Dies While the Case is on Appeal?

By on March 31, 2011 2:51 pm in Crime Victims Rights

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.

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Significant Child Pornography Restitution Ruling in the Fifth Circuit

By on March 22, 2011 5:42 pm in Crime Victims Rights, Criminal Law
Today the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory. The Fifth Circuit agreed with my arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded.  As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime.  Under the Fifth Circuit’s analysis, a victim of a widely distributed child pornography will not have to trace out loss to each and every individual defendant who views images of her being abused.
If followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive.  A copy of the decision can be found here.
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