June 2010 Archives

June 30, 2010

Johannes Mehserle Verdict: Riot or No Riot?

Johannes Mehssserle is the BART (Bay Area Rapid Transit) police officer who is charged with murdering Oscar Grant on Jan. 1, 2009. Meherle admits shooting Grant on a train platform in Oakland, CA. He claims that Grant was resisting arrest, and that he was trying to subdue Grant with his Taser when he accidentally pulled out a gun and shot him. Word of the New Year's Eve shooting spread quickly and resulted in widespread rioting in Oakland.

Mehserle's trial was moved to LA. As the trial nears its conclusion, both the verdict and the chance that it will produce additional rioting are uncertain. A verdict of murder is unlikely, since the tragic killing was neither intentional nor premeditated. Voluntary or involuntary manslaughter is a more more likely and fairer verdict, since Meherle is certainly at fault for not recognizing the difference between a Taser and a deadly weapon.

For me, the biggest concern is the effect of the verdict on Grant's supporters in Oakland and LA.  Like most people I hope for calm reactions no matter what the verdict.  But if my sense of the likely verdict is accurate, experience suggests otherwise.


June 8, 2010

Putting Teeth (and Money) Into the Right to Counsel

In Gideon v. Wainwright (1963), the U.S. Supreme Court decided that under the 6th Amendment, most indigent crimihnal defendants are entitled to be represented by government-paid lawyers. But states are free to set up their own systems for providing legal representation to indigent criminal defendants. Civil class action lawsuits are underway in a number of states, claiming that their methods of providing legal representation to indigent criminal defendants violate the 6th Amendment because they effectively result in ineffective assistance of counsel.    

In the case of Hurrell-Harring v. New York, a group of indigent criminal defendants have sued 5 New York counties, claiming that their methods of providing them with defense counsel are unconstitutional. Among their claims: Even innocent defendants have languished in jail for months because they are unable to afford bail and court-appointed lawyers ignore their cases. New York sought to dismiss the case, but in May 2010 the New York Court of Appeals issued an order stating that the case can proceed to trial.

The case's ultimate outcome is not clear, because the plaintiffs still have to support their claims with evidence. A big issue however is the role of judges in deciding how much money states allocate to their criminal justice systems, especially on behalf of criminal defendants. You can bet that few politicians run on platforms bragging about the large amount of state funding they secured on behalf of people charged with crimes. If Hurrell-Harring is decided in favor of the plaintiffs (indigent defendants), the upshot will be that New York will at least have to hire more lawyers to represent indigent criminal defendants. At a time when public funds are scarce and competing demands by many worthy claimants for those funds are high, it's safe to say that the voting public will not be happy if judges order states to allocate more funds for criminal defense lawyers.

June 7, 2010

Berghuis v. Thompkins- Speak Now or Forever Waive Your Right to Silence?

In Berghuis v. Thompkins (2010), the U.S. Supreme Court (by a 5-4 vote) continued to tinker with its Miranda decision with the gusto of a model train enthusiast who gets a new layout part. In this latest case, the Court made it a bit easier for prosecutors to offer confessions into evidence.

Here's what happened.  Police officers advised murder suspect Thompkins of his Miranda rights to silence, to talk to a lawyer, etc.  Thompkins didn't say much of anything in response.  He didn't demand a lawyer, nor did he tell the police that he wanted to remain silent.  Nor for that matter did Thompkins agree to talk to the police. So the police simply went on with their interrogation, and after almost 3 hours of doing little more than grunting, Thompkins finally admitted that he prayed to God for forgiveness for killing the victim. 

The Court decided that the state had the right to offer Thompkins' statement into evidence at trial. Suspects can give up their Miranda rights simply by not invoking them but instead continuing to allow police questioning to continue. The police are not required to obtain written or even oral waivers from suspects in order to elicit valid confessions.   

The dissenters argued that Berghuis is inconsistent with the Court's prior decisions and that it substantially waters down Miranda's protections. While recognizing that prior decisions did not demand an explicit written or oral waiver, the dissenters argued that the state failed to sustain its heavy burden of showing that Thompkins voluntarily gave up his right to remain silent.  

From its inception in 1966, Miranda has been controversial. It has not had the dire consequences for successful prosecutions that its attackers predicted, largely because most suspects voluntarily waive their right to remain silent. Thus, Berhuis will probably not have a big impact on the number of confessions that are admitted at trial. However, when defendants neither explicitly waive their right to silence nor demand to talk to a lawyer, the case does enhance the likelihood that a suspect's damaging statements will be admissible at trial.