March 2009 Archives

March 30, 2009

A National Commission on Criminal Justice

In the widely acclaimed film ...And Justice For All criminal defense lawyer Arthur Kirkland (played by Al Pacino) famously screams to a jury that "this whole system is out of order."

What was a parody three decades ago has become today's sad truth. The U.S. criminal justice system is broken.  Prisons are overcrowded and dangerous to prisoners and prison personnel alike.  Judges, prosecutors, and defense lawyers have so many cases that as Lenny Bruce said, "In the halls of justice, the only justice is in the halls."  Crime labs spew out questionable forensic test results and are too under-funded to keep up with their work. Many prisoners are mentally ill or addicted to drugs and could be treated more cheaply and humanely in community-based rehabilitation centers.

A new legislative proposal provides some basis for hoping that the criminal justice system has hit rock bottom and may be ready to be pushed onto the road to recovery.  U.S. Sen. Jim Webb (D-VA) has proposed legislation called The National Criminal Justice Commission Act of 2009.  If passed, the law will create a blue ribbon commission charged with reinventing the criminal justice system.  If the system is to be improved, many perceptions will need to be changed and many entrenched interests will need to cede power.  But what the heck -- as long as we're trying to repair our banking system, auto industry, and many other dysfunctional (yet crucial) institutions, we might as well toss the criminal justice system into the mix.

March 25, 2009

New Mexico Abolishes Capital Punishment

New Mexico has abolished capital punishment, effective July 1, 2009. With its abolishment, LWOP (Life Without Possibility of Parole) becomes New Mexico's maximum punishment.

New Mexico Gov. Bill Richardson signed the law even though he personally supports capital punishment. Richardson concluded that though the death penalty may be warranted for the worst crimes, he believed that the criminal justice system cannot fairly distinguish those murderers who should die for their crimes from those who are allowed to live. He was also influenced by statistics showing that nationally, about 130 death row prisoners have been shown to be innocent-- mostly through DNA evidence. 

For capital punishment opponents, the symbolic value of the state's decision may outweigh its practical impact.  New Mexico currently has only 2 prisoners on death row, and the state has executed only 2 people since 1960. Yet its abolishment adds to a growing sense that like all European countries, the United States will eventually ban capital punishment. The number of death senetences handed down and carried out in the United States has dropped for each of the last 5 years. The decision of New Mexico's legislature to abolish capital punishment, and in particular Gov. Richardson's reasons for accepting the decision, is another signal that the country will eventually hand capital punishment a death sentence of its own.

March 18, 2009

Jurors' Web Research Causing Mistrials


A dramatic moment of the classic courtroom drama 12 Angry Men occurs when Juror No. 8 (played by Henry Fonda) undercuts the prosecution's claim that a knife used as a murder weapon had an extremely unusual design. Fonda stuns his fellow jurors by producing an identical knife that he bought from a nearby store during the trial.

Though the film's viewers are likely to applaud Juror No. 8 for trying to do justice, the judge would have declared a mistrial (and perhaps thrown No. 8 in jail for contempt of court) had the judge found out what he had done.  Jurors are supposed to base verdicts on the evidence produced in court.  Judges specifically warn jurors not to conduct their own investigations.  We have an adversary system of justice, and if jurors take it upon themselves to join the hunt for evidence, neither party to the trial has a chance to confront or respond to it.

At least Juror No. 8 had to do some legwork to find the knife.  In the Computer Age, lawyers and judges are suddenly realizing, jurors can disobey judges' instructions and conduct their own investigations -- even as they are sitting in the jury box listening to testimony.  A juror empaneled in an auto accident case who wants more information about an intersection can use a cell phone to check it out on Google Maps.  A juror wondering what evidence a judge excluded might find the information in a news story posted on the Internet.  A juror in a medical malpractice case who wants more information about a medical procedure might read up on it on Wikipedia.  And jurors who are in the habit of posting their thoughts daily on Facebook or Twitter might post their instant analysis of the issues before the case has been decided or even submitted to them for consideration.

For many people, the vast resources of the Internet are available to them 24/7 in their pockets or purses.  Judges can order jurors not to look for case-related information on the Internet, but the order is almost impossible to police.  And when jurors violate the order, the costs can be enormous.  In one recent case, federal judge WIlliam Zloch ordered a mistrial in a Florida case when it turned out that 9 of the 12 jurors had been conducting research related to the case over the Internet. Eight weeks of trial time, including the time of the judge, the attorneys, and the three law-abiding jurors was wasted.

If this trend continues, the misconduct of Juror No. 8 in 12 Angry Men may seem like the good old days.

March 12, 2009

Ricardo Rachell: The Crimnal Injustice System in a Nutshell

Ricardo Rachell was released from a Texas prison in December 2008 after serving more than 5 years in prison for the rape of a child that he didn't commit.  Rachell's tragic story provides a snapshot of the common ills that afflict our criminal justice system and that I have discussed in earlier blog entries.

  1. Rachell was convicted largely on the basis of mistaken eyewitness identifications made by the 8-year-old male victim and his friend. More than any other factor, mistaken eyewitness identifications are the leading cause of wrongful convictions. Amazingly, the boys were believed even though Rachell's face is terribly disfigured from a shotgun blast he had suffered years earlier, and the boys initially failed to mention anything unusual about the attacker's face to the police. 
  2. DNA testing of physical evidence proved that Rachell did not commit the crime.  However, even though the evidence was available for testing shortly after the crime took place in 2002, it wasn't tested until 2008. The prosecutor claims that the defense trial lawyer should have requested DNA testing; the defense lawyer claims that he didn't know that physical evidence was available for testing; and the incompetent DNA lab was closed down around the time Rachell was convicted anyway.
  3. Pat Lykos, the current District Attorney of Harris County, Texas (where Rachell was convicted) blames the prosecutors, the defense lawyers, the police, and the crime lab for the wrongful conviction.  But even if Lykos had 10 hands, she probably wouldn't have enough fingers to point at the causes of this injustice.
March 9, 2009

Firearms Restrictions for Domestic Abusers


In recent years, the U.S. Supreme Court's interpretation of the Sixth Amendment has made it more difficult to convict perpetrators of domestic violence, and its interpretation of the Second Amendment has made it more difficult for communities to enact gun control legislation -- thus the Court's forgiving interpretation of a federal gun control law that made it a crime for perpetrators of domestic violence to carry a gun came as something of a surprise.

In United States v. Hayes (2009), the Court reviewed a law (18 U.S.C. 922(g)(9)) that made it a federal crime for people who had been convicted of misdemeanor domestic violence to own a gun.  Hayes was convicted of violating this law; he owned a few guns, and 10 years earlier had been convicted of misdemeanor battery.  The woman that Hayes had attacked was his then-wife -- however, his conviction was for "simple battery."  Hayes argued that he did not violate Sec. 922(g)(9) because he had been convicted only of battery, not of domestic violence.

The Court admitted that Sec. 922(g)(9) was badly drafted. If you enjoy reading about semi-colons, you might enjoy reading the Hayes opinion in its entirety (PDF).  At the end of the day, however, the Court evidently thought it a dangerous precedent to hold Congress to the same writing standards as first-year law students.  The Court interpreted Sec. 922(g)(9) to apply to ownership of guns by people whose previous convictions were based on acts of domestic violence, regardless of whether they were convicted specifically of domestic violence.  Since Hayes' victim was his then-wife, he could be properly convicted of violating Sec. 922(g)(9). Thus, Hayes is one of the few recent Supreme Court decisions to bring some cheer to those who think the country ought to do more to reduce gun and domestic violence.        

March 5, 2009

"Cell" Phones


Purchasing a small amount of illegal drugs for personal use is generally a misdemeanor. However, under federal law, 21 U.S. Code Sec.843(b), using a "communication facility" to aid in the commission of a felony is itself a felony. So what happens if someone purchases a misdemeanor-size amount of cocaine using a felony-sized communication device (in this case, a cell phone)?

This question is now pending in the U.S. Supreme Court.  Defendant Salman Khade Abuelhawa used his cell phone to set up small cocaine buys; he was caught, then charged with and convicted of a felony. The Court of Appeals upheld the conviction (PDF) and Abuelhawa has appealed to the Supreme Court. 

Abuelhawa argues that his felony conviction is invalid.  After all, if he'd set up the cocaine buys in person, he'd be guilty only of a misdemeanor. So why should he be punished more severely for using a cell phone?  The Court of Appeals' answer? The harsher punishment is warranted because cell phones make it easier for criminals to violate the law without being detected.  If you want to read a transcript of the argument in the Supreme Court, visit

While Abuelhawa's situation seems of little national significance, the Supreme Court's decision may help determine the future course of the so-called War on Drugs.  Harsh sentences for non-violent drug offenders have done a lot to swell prison populations but they have done little to curb consumption of illegal drugs.  If the Supreme Court upholds Abuelhawa's felony conviction, prosecutors will be encouraged to seek ever-harsher penalties for drug offenses.  A reduction of the sentence to a misdemeanor may signal that the Court thinks it's time for the government to try out some alternative methods of conducting the War on Drugs.