Right to Counsel: One Step Forward, Two Steps Back

As part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial.  Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

Three decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. Dunn. Continue reading “Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert”

Time to Revisit Wisconsin’s Jury Instruction on Reasonable Doubt?

Attorney (and prolific author) Michael Cicchini has been doing some interesting work on Wisconsin’s reasonable doubt instruction, including some empirical research with psychologist Lawrence White. Cicchini has now created a helpful resource page for criminal defense lawyers, which includes not only links to his own research, but also a sample brief and a list of judges who have already adopted modifications to the standard instruction.

Cicchini summarizes the problems with the standard instruction this way:

After explaining the concept of “beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.”

J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because, as other states have held, it communicates the much lower “preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.

Supreme Court Permits Some Light Into the Black Box of Jury Deliberations

Jury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.

Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.

Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails.  Continue reading “Supreme Court Permits Some Light Into the Black Box of Jury Deliberations”

Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial.  Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature.  A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered.  Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Continue reading “Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause”

Mercenary Justice?

Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri.  Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants.  For instance, the DOJ charges:

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)

I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of fines, surcharges, fees, forfeitures, and the like.

Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).   Continue reading “Mercenary Justice?”

SCOTUS End-of-Term Roundup: The Constitutional Cases

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

Continue reading “SCOTUS End-of-Term Roundup: The Constitutional Cases”

Earned Release From Prison: Judges Not Necessarily the Best Deciders

In 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions.  But, just two years later, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.

However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.

Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.

We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options.   Continue reading “Earned Release From Prison: Judges Not Necessarily the Best Deciders”

Brain Imaging and Lie Detection: What’s Next?

Daniel Langleben and Jane Campbell Moriarty have an interesting new article that provides background on the use of brain imaging in criminal investigations, discusses obstacles to the use of the technology in courtrooms, and proposes a path forward.  The type of imaging at issue is functional magnetic resonance imaging, or fMRI.  Some research suggests that fMRI is indeed able to distinguish lies from honest answers during an interrogation.  However, at least two courts have excluded fMRI evidence since 2010.

Langleben and Moriarty agree with these courts that there are some significant gaps in the supporting research, especially in light of the evidentiary rule of Daubert v. Merrell Dow Pharmaceuticals:

The most important piece in the puzzle is Daubert‘s “known error rate” standard.  Determining the error rates for fMRI-based lie detection requires validation of the method in settings convincingly approximating the real-life situations in which legally significant deception takes place, in terms of the risk-benefit ratio, relevant demographics, and the prevalence of the behavior in question.

Langleben and Moriarty thus propose an ambitious program of clinical trials.  They acknowledge that this would involve hundreds of participants and cost millions of dollars, but they believe the technology is promising enough to warrant the investment.

The article is “Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide,” 19 Psych., Pub. Pol’y, & L. 222 (2013).

So Long, Harris — Breyer’s on Board

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States.  The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences.  Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed.  Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence.  Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum.  Thus, Breyer’s vote in Harris was simply another vote against Apprendi.  This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come.   Continue reading “So Long, Harris — Breyer’s on Board”