criminal justice – Page 26

The Founders Loved Jury Trials. Almost No One Gets One Anymore.

Posted on August 19, 2022 by Lone Candle

“What is the Sixth Amendment?

You wouldn’t be blamed for having to consult Google to answer that question. The Founders are rolling in their graves anyway.

It’s the right to a trial by jury, and it’s one that society has all but disposed of—despite the Framers’ insistence that it be included in the Bill of Rights as one of the primary bulwarks against government tyranny.

They didn’t exactly mince words. “Representative government and trial by jury are the heart and lungs of liberty,” wrote John Adams. “Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

One wonders what animalistic metaphors Adams would conjure today if he could see the U.S. criminal justice system in motion: one in which about 97 percent of trials are resolved without juries, devoid of the sacrosanct lifeblood that keeps human liberty from death by suffocation.

That tool has been supplanted by the plea bargain. In popular culture, that’s widely seen as advantageous to defendants. In reality, it’s been disastrous. It epitomizes government coercion. It epitomizes what the Founders warned against.”

…

“The bulk of a prosecutor’s job is not spent in the hallowed halls of a courtroom participating in a high-stakes battle over someone’s liberty, all while journalists wait in the wings to capture the victor’s speech on marble steps. It’s spent in backrooms, with district attorneys “charge-stacking,” or filing multiple criminal charges against someone for the same offense, calculating a grisly potential prison sentence, and offering to make some of that go away—so long as the defendant in question does not exercise his or her constitutional right to a trial by jury.

If they refuse, then they will risk a substantially higher time behind bars, not because a prosecutor views it as necessary for public safety but because he or she dared to inconvenience them with a trial. After all, what the defendant is accused of didn’t change. But trials are expensive. And the government can never be sure when it will win, so better to avoid them where possible.

That latter part—the uncertainty—is supposed to be the point. It’s true that many criminal defendants are guilty. It’s also true that some are innocent and have been forced to pay with their liberty anyway. A person who is not guilty likely wants to go to trial. But why risk a decade behind bars for insisting on your Sixth Amendment right when you could be out in two or three?”

The One Thing That Is Very Clear from the Search of Trump’s Home

Posted on August 12, 2022 by Lone Candle

“We need to remember that earlier this year officials retrieved boxes of materials from Mar-a-Lago that they said should have been turned over to the National Archives before Trump left office. According to reporting from CNN, investigators became aware of the existence of more such documents during a visit to Mar-a-Lago in June. But instead of simply taking these documents as officials had done previously, or subpoenaing Trump for the documents, investigators took the more serious step of requesting a search warrant. This suggests that officials at the Department of Justice did not think they would get all the documents in Trump’s possession if they filed a subpoena.

There is much we still don’t know about what the agents were looking for and what they found, but the process of applying for and receiving permission for the warrant indicates the significance of what happened Monday.

Typically, I would advise a client that an FBI search at your home means that you will likely face charges. That’s because a federal judge determined that there was good reason to believe a federal crime was committed and that evidence of the crime was in your home. To be clear, the execution of a search warrant doesn’t necessarily mean that the evidence points to the owner of the home as the person who committed the crime. It just usually works out that way.

To obtain the warrant, the DOJ had to present a detailed affidavit to a judge walking through the evidence they have that a crime was committed and providing some reason to believe evidence of that crime is at Mar-a-Lago right now. I emphasize “right now” because the government needs to show that there was probable cause to believe that evidence of the crime was present at Mar-a-Lago at the time of the search. It is extremely unlikely that a judge would approve a warrant based on stale evidence that had been received many months ago. The Justice Department also would act in the most conservative, cautious manner given the enormous stakes for the Department’s reputation and the nation as a whole.”

…

“The nature of the possible charges is also very unclear. Recent reporting from both the New York Times and the Associated Press indicates the search warrant is related to classified material taken from the White House by Trump when he left office. But we know that mishandling classified documents only rarely results in charges.

James Comey was right when he testified that the DOJ typically does not prosecute cases involving the mishandling of classified material unless that material was deliberately transferred to a third party. That suggests to me that there is something important — call it a plus factor — we don’t know here. People on the right have rushed to judgment and are already saying, “This is just a docs case.” But we don’t know that. In fact, there is reason to believe it is more than that.”

What Trump’s pleading the Fifth means for New York AG Tish James

Posted on August 11, 2022 by Lone Candle

https://www.politico.com/news/2022/08/10/trump-fifth-tish-james-new-york-00050839

It’s a Bad Year for Criminal Justice Reform at the Supreme Court

Posted on July 31, 2022 by Lone Candle

“The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.

First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.

“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality.””

…

“The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.

“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.

She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.

Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.”