January 2009 Archives

January 29, 2009

Blagojevich: One Trial Down, One to Go

While our country has in recent years sent many soldiers to their deaths in an effort to bring the blessings of democracy to foreign nations, many home-grown politicians have done their best to prove that democracy is no guarantee of honest and competent leadership. Illinois Rod Blagovejich is the latest to fall, as the Illinois Senate voted 59-0 to remove him from office.  Blagojevich broke the law by trying to profit personally from his power as Governor to name a successor to President Obama as a Senator from Illinois. 

At least Blagojevich's removal from office means that he will have time to work on his defense to the federal corruption charges that he still faces.  If he hopes to stay out of prison, he'll have to do a lot better than his embarrassing tirade before the Illinois Senate in which he argued that he didn't do anything wrong, he'd just engaged in "politics as usual". Sadly, judging by contemporary political standards, he may be right.

Actually, Blagojevich may not be all that anxious to avoid prison. If he wants to get together with other former elected officials and talk politics all day long, prison is surely the place to be.   

January 14, 2009

Herring v. U.S. : Police Mistakes Don't Always Require the Exclusion of Evidence

As dedicated readers of my blog are aware, the case of Herring v. U.S. involved Herring's argument that illegal drug charges should be dismissed because the police seized the drugs improperly. The officers who arrested Herring and found the illegal drugs had been told that there was a warrant out for Herring's arrest -- this information was wrong; the warrant was no longer valid. Because of this mistake, argued Herring, the officers had no right to arrest or search him, and the 4th Amendment's prohibition of illegal searches and seizures requires that the drugs be excluded from evidence..   

As I correctly predicted in the earlier blog, the U.S. Supreme Court ruled that the drugs were admissible in evidence. The mistake was an isolated instance of careless record-keeping rather than a reckless exercise of police powers. This type of error should not result in the exclusion of evidence, the majority ruled.

The case signals the continuing debate about the scope of the 4th Amendment. The justices in the majority stress the danger of allowing guilty and sometimes dangerous criminals to go free based on minor police mistakes. The justices in the minority stress that the exclusionary rule protects civil liberties, and that strict application of the 4th Amendment can deter police mistakes. Since this was a 5-4 decision, you can bet that the debate will continue.

January 13, 2009

Leaner, Meaner Juries?


Are fat jurors prone to favoring defendants? So claimed a New York prosecutor a few years ago, who challenged an obese juror's impartiality and kicked her off a jury panel on the ground that fat people are biased towards defendants. The problem is that both the potential juror and the defendant were African-American, and the juror's dismissal resulted in the defendant being tried and convicted by an all-white jury.  

Lawyers are not allowed to exclude jurors based on their race. When claims of race-based challenges arise, lawyers have to offer "race-neutral" explanations for excluding jurors. Trial judges are supposed to evaluate the explanations to make sure that they are not meaningless pretexts. In the case now pending in federal court, the trial judge accepted the prosecutor's explanation and an appeals court has asked another trial judge to reconsider the validity of the challenge.

I doubt that a link between weight and defense-mindedness has ever been scientifically established. But the right of lawyers to challenge and exclude potential jurors is based on their ability to use their intuition and personal experience to exclude people they believe will side with their adversaries. If courts go too far in demanding that lawyers prove that challenges are based on proven facts, they will undermine one of the tenets of our lawyer-centric adversarial system.

January 6, 2009

Life Sentences for Juvenile Criminals?

In the case of Roper v. Simmons (2005), the U.S. Supreme Court ruled that the death penalty cannot be imposed on juvenile offenders. The next logical issue is whether juvenile offenders can be given an LWOP sentence -- that is, a sentence of Life Without Parole.

LWOP sentences for adult offenders are routine.  The availability of LWOP, and the realization that LWOP sentences are strictly enforced, have undoubtedly contributed to the reductions in the number of adult offenders sentenced to death in recent years.

But should teenage offenders, even those who have committed heinous crimes, have to spend the rest of their lives in jail?  In Roper, the Court emphasized that youthful offenders are less blameworthy than adults because they lack maturity and are more subject to negative peer pressure than adults.  Should these same factors lead to a conclusion that LWOP sentences are as invalid as death sentences for juvenile offenders?  International law and a handful of states already forbid LWOP sentences for juveniles.  Surely it won't be long before the U.S. Supreme Court is confronted with deciding the issue.