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Feige on Nifong, Prosecutorial Misconduct & Attorney Discipline

(Laura) I caught an interesting piece on Slate this morning, “One-Off Offing,” written by David Feige, whom I met during our days as public defenders in the Bronx. David writes about Mike Nifong’s disbarment following the Duke rape case debacle, and argues that “you won’t see a disbarment like Mike NiFong’s again,” because “it is tempting to chalk the whole incident up to an unusual and terrible mistake — a zany allegation taken too seriously by a run-amok prosecutor.” In reality, David opines, “[p]rosecutors almost never face public censure or disbarment for their actions,” and “the [Duke case] drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.”

David writes a sharp, insightful piece, and I don’t dispute his points that prosecutorial misconduct happens too often and that the legal profession has been unfortunately disinclined to treat even serious instances of prosecutorial misconduct as a disciplinary issue. But, I think David may overstate his case for prosecutorial misconduct in a way that undercuts the strength of his overall position.

David’s Slate piece may convey the impression to many readers that shady practice is the cultural norm for many if not most prosecutors — an impression consistent with the impression he often coveys of the criminal justice system as a whole on his blog, Indefensible, and in his identically-titled book describing his practice experience in the Bronx. David acknowledges in his Slate piece that that “[h]ow often [misconduct] actually happens is hard to say,” but he suggests that “in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don’t arise.”

I practiced from 1994-2005 as a public defender in the Bronx and Manhattan, where David practiced too, and I simply have a different big-picture impression of prosecutors. Prosecutors are asked to strike a pretty tough balance: vigorously advocate against the guilty, but remain objective and even non-committal too, so as not to overlook evidence of innocence or mitigation. I have thought that some defense attorneys too easily criticize how most prosecutors conscientiously endeavor to strike this balance that the defense bar itself is not asked to replicate. In my experience, most prosecutors work very hard to achieve a fair balance, and generally do a pretty good job at it — even in the many cases where I disagreed in some way with a prosecutor’s decision of how to handle a client’s case. I just don’t recall too many prosecutors who wouldn’t listen to what I had to say, wouldn’t think hard about their cases, or who wouldn’t share exculpatory evidence. In other words, I haven’t met too many prosecutors who acted anything like Nifong.

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Defending “Dollar” Bill

(Stuart Green) One of the reasons that I merely teach and write about white collar crime, rather than actually represent any white collar defendants, is that I lack the kind of imagination and hubris that are necessary to do a really effective job at the latter.  Consider the task confronting lawyers for Louisiana Congressman William Jefferson, charged last week with sixteen counts of conspiracy, bribery, wire fraud, money laundering, obstruction of justice, racketeering, and violations of the Foreign Corrupt Practices Act.  Jefferson, alleged to be at the center of a complex scheme of using his influence as co-chair of the congressional Africa Investment and Trade Caucus to broker deals in various African nations and demand kickbacks for himself and family members, was caught on camera in a hotel garage accepting a payment of payment of $100,000 from an FBI informant, and later found to have $90,000 in marked bills in the freezer of his Washington home. 

Jefferson has now pled not guilty.  If you were Jefferson’s defense lawyer, what kind of defense would you offer?  As I say, I doubt I’m clever enough to come up with a very good answer.  But, based on statements by Jefferson and his lawyers, we can discern the foundation for an interesting two-pronged strategy. 

The first prong is the classic “this was merely aggressive business behavior rather than criminal conduct” defense that is so often used in white collar cases (and which, if you’ll excuse some self-promotion, is dealt with extensively in my recent book).   In bribery cases, defendants typically argue that alleged bribes were really just campaign contributions.  Given the nature of the payments here, that defense seems all but impossible. Instead, Jefferson apparently intends to make the only slightly more plausible argument that, in representing various American companies that were interested in doing business in Africa, he was acting as a private businessman rather than as a member of Congress.

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Analyzing Family Ties Burdens: A Framework

(Dan Markel) In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens.  Here, we present a normative framework for analyzing whether such penalties or burdens can be justified.  First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.

  1.           Why a Defendant-Centered Perspective?

We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms.  After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.

But we aren’t naïve.  There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole.  For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier.  That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment.  Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy.  But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment.  Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives.  Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.

Contacting a Detroit Criminal Lawyer is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.

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Shaming a Child and The Wisdom(?) of Parental Punishment

Photo_servlet(Douglas A. Berman) As detailed in this local Florida story, headlined “Teen Forced To Carry ‘I Am Stupid’ Sign After Speeding Ticket,” a mother recently made headlines by imposing a shaming punishment on her reckless son.  Here are the basic details:

Adam Clark was pulled over going 107 mph in a 55-mph zone; neither the police nor his mother were pleased.  Adam’s mother, Heidi Wisniewski, not only took his car away, but also made him a sign to show outside of his school every morning and every afternoon.

He was forced to hold a sign reading, “I was stupid. I drove over 100 mph and got caught. Thank God!  I could have killed me and my friends.”  Adam said he got some strange looks and laughs from classmates at Orlando’s Merritt Island High School, but said he accepts his punishment.  Despite the humiliation, he said he isn’t mad at his mother….

Wisniewski said her son would be in front of the school before and after school for a month, and added that she didn’t think the punishment is over the line.  “I love my son very much,” she said.  “I think more parents need to be tougher on their children.”…

Adam said the punishment worked.  “I’ve learned my lesson,” Adam said.

If you have been accused of criminal intent and you are going into criminal litigation, your top and only priority will be to find an experienced, knowledgeable, and aggressive criminal lawyer to go to bat for you.

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Prescription for Pain

(Stuart Green) One of the themes that I have pursued in my scholarship is the frequently elusive line that distinguishes criminal conduct from mere civil wrongs. That theme was taken up in a context I had not considered before in a cover piece by Tina Rosenberg in Sunday’s New York Times Magazine, entitled “When is a Pain Doctor a Drug Pusher?” The main focus of Rosenberg’s piece is a Greenwood, S.C., physician named Ronald McIver, who, based on evidence that he had been prescribing many times the recommended dosage of various opioids, was sentenced to thirty years in prison for drug trafficking. Rosenberg believes not only that the law was wrongly applied to McIver’s case, but that the law itself should be changed.

Rosenberg’s description of the facts is so sympathetic to McIver that it’s hard to tell whether the facts really did support his conviction. Rosenberg argues that McIver’s sin was nothing more than being overly aggressive in his approach to pain management, and perhaps sloppy about his record keeping (though she does note that some of McIver’s patients were regularly selling excess amounts of prescribed drugs to third parties.) She suggests that the one patient of his who did die, allegedly as a result of over-prescription, had an underlying condition that was the real cause of his death.

Whether or not Rosenberg’s reading of the facts in the McIver case is accurate, what troubles me is her treatment of the larger legal issue that it raises. So far as I can tell, Rosenberg thinks that we shouldn’t ever criminalize what she calls “bad medical decisions.” Before criminal sanctions can be imposed, she says, the evidence ought to show a “link broken” between the patient’s medical condition and the drug prescribed, such as when a doctor exchanges a prescription for money or sex or writes a prescription for a made-up name or without ever seeing the patient. So long as there is some intact link between the medical condition and drug prescribed, she says, criminal prosecution is not warranted. Instead, she says, cases of mere recklessness should be referred to the state medical board or should result in a claim for civil malpractice.

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Drug Prosecutions: Racial Disparity, San Diego State and U.S. News Rankings

(Marc Miller) Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.)  One reason may be political;  drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there.  The police understandably avoid making mistakes with people having the power to retaliate: “If you search the King, the King must be holding.”

There are, I am willing to bet, active drug networks at Andover and Spence, at Williams and Harvard, but generally, they are let alone unless they go out of their way to attract police attention.  That’s why the recent DEA drug investigation and raid at San Diego State University is so interesting. 

Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs.  Why don’t headmasters and deans at elite schools beg for the services of undercover narcotics investigators, who could develop solid cases against young dealers for multiple felonies and then pack them off to state prison for double-digit terms (forfeiting their trust funds in the process, of course)?  Would that not delight parents and fellow students would then be protected from these criminals?  My bet is that parents and students would instead say that police have better things to do than arrest good young people for conduct that millions have engaged in, conduct which, at least as to these kids from fine families, warrants rehabilitation and treatment, not punishment.    

This approach was abandoned at SDSU, where 75 students were arrested and charged with serious crimes.  (NPR story here).  So we are given a perfect conflict: Strong cases based on months of investigation of sitting ducks with a complete lack of basic drug dealer professionalism, serious charges that could send these kids to state prison, and affluent defendants whose parents (and I can hear the popping of champagne corks even here in Tucson) are about to confer a substantial windfall (75 defendants!) on the   best criminal defense attorneys.

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Sins of Omission and Commission in Police Work

(Rick Hills) In a recent post, Adam Kolber quotes a letter to a newspaper complaining about the verdict in the Sean Bell case in which the writer demands that “police officers … hold our interests and our lives above their own” and “accept the threat of harm as part of their jobs and their oaths. And they must demonstrate restraint even at the expense of their lives.”

Adam quite reasonably asks whether “it is fair to ask a police officer to value the life of someone else more than his or her own.” But there is perhaps a deeper incoherence in the letter writer’s demand: The difficulty is that police officers can endanger lives through inaction – “restraint” — just as much as through action.

Police officers who do not swiftly intervene with violence in risky situations endanger lives by allowing communities to unravel in crime. The crime wave that hit New York City between 1968 and 1992 was arguably influenced by such sins of omission. Some such omissions are specific and deliberate – for instance, the police union’s “slowdown/sickout” of the Fall of ’68. But some observers – among them the historian Vincent Cannato – believe that slack police response during the 1970s and 1980s was the result of the NYPD’s new culture of refusing to take actions that could result in an accusation that they used unjustifiable force. Turning a blind eye to open-air drug markets, gang warfare, violent spouses, or rowdy nightclubs is a great way to insure that one will never be accused of encroaching on anyone’s civil liberties, especially if one believes that only “state action” and not private action can deprive people of their civil rights.

If Feminist legal scholarship has one central lesson to teach all of us, it is that private violence is just as much a deprivation of civil liberty as state violence. Police inaction threatens the most vulnerable – women, the elderly, the poor, and racial minorities – because these groups are most likely to be targets of private crime. Therefore, a cop who routinely gave plausibly violent people the benefit of the doubt (and the first shot) even when the risks of the cop’s inaction seemed to outweigh the risks of action would not merely sacrifice his own life. He’d also eliminate the fear of official violence that is a primary deterrent to criminal activity. Such a police force would be the domestic equivalent of the UN’s Blue Helmets in Bosnia or Rwanda – utterly useless for suppressing the private threat to civil liberties.

Domestic violence happens not only to women, children but to men as well. If you are a victim, Detroit Criminal Lawyer will get you in touch with the best lawyer for your situation.

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Should Parents Get Sentencing Discounts? Our Third Freaky Post

By STEPHEN J. DUBNER

(Dan Markel) Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT’s Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I’ve reprinted the post after the jump. Feel free to weigh in with comments here or there.

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?

A Guest Post

By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

Contacting a Detroit Criminal Lawyer – DetroitCriminalLawyer.org – is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.  A criminal record can wreak havoc in your life, whether you have been only arrested or convicted.

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The Duty to Rescue and the Registry for Caregivers: A Guest Post

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Often people who try to handle serious charges on their own wind up with more serious convictions than those who engage a seasoned attorney to fight on their behalf. Hiring a Detroit domestic violence lawyer (DetroitCriminalLawyer.org) means having a strong advocate to defend you.

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Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

(Jonathan Simon) As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession– our conviction that we might have stopped the tragedy (read William Yardley’s summary of the blame game in the NYTimes).  Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change).  Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons.  More should be learned over the next news cycle or two.  

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small “d” democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics).  Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen).  My objection, however, is limited to two points.

First, our obsession with the “recidivist”.  Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after.  This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances.  Ironically, the one trait that really may help us track future violence–evidence of major mental illness combined with acts of violence–seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

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