The Criminal Lawyer

Yesterday, we were talking with a colleague about whether we’d ever take a terrorism client. We frankly don’t have any more qualms about defending that type of case than about any other type. But the conversation turned to whether such cases ought to be brought in the courts in the first place. And we just don’t think terrorism should be fought in the courts.

In the years before 9/11, the U.S. dealt with terrorism as a criminal matter. Conceptually, it was no different from any other multiple homicide: the bad thing would happen, law enforcement would try to find out whodunit, and if the suspect was still alive and could be arrested then he’d get prosecuted.

This didn’t work so well. Some people eventually got punished, but the system didn’t stop or deter any future attacks. The criminal justice system can’t do that, after all. It’s purely an after-the-fact thing. Its job is to punish people after the crime is already committed. The courts can’t act proactively to prevent crimes that haven’t been committed yet — punishing people before they’ve done anything would be outrageous. No, proactive national defense is the job of the armed forces.

More than that, our criminal justice system is flatly contrary to the goals of counterterrorism. Preventing terrorist acts requires intel. Any client of mine is going to shut up the second I’m retained, if not sooner. And law enforcement isn’t allowed to arrest people before they’ve done anything wrong. Nor can they coerce confessions, or get wiretaps or search warrants on mere suspicion alone — which is all you’ve got during most investigations. So much for your intel. The White House says we can get intel as part of a plea, but as Mike Mukasey points out in today’s WSJ, any plea is going to take place years after the information would have been of any use.

Law enforcement is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

So it’s hardly surprising that our reliance on the courts and law enforcement alone didn’t get the job done. Because it’s not their job. In the terrorism cases before 9/11, the criminal justice system did its job about as well as can be expected, but it failed abysmally at the task of counterterrorism. It will continue to fail, if we decide that’s how we’re going to fight it.

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On January 25, 1993, Mir Aimal Kansi got out of his car during a red light at an intersection near CIA headquarters, and with an AK-47 shot every male in sight. He drove off and wasn’t pursued. (He actually took a wrong turn into our parents’ cul-de-sac nearby, and our mother watched him trying to find his way, but she thought nothing of it afterwards because the police announcements described a completely different car.) Surprised at the ease of his escape, Kansi caught a flight to Pakistan the next morning. Eventually, his roommate reported him missing and the police found the AK-47 under Kansi’s bed. By that time, he was long gone, being sheltered by a Pashtun tribe in the Afghan border regions (sound familiar?). There was no extradition treaty with Pakistan, so the U.S. didn’t bother with the extradition process. Four years later, they just went in and kidnapped him after luring him out with a smuggling ruse. He was eventually tried in Virginia state court, which sentenced him to death. Kansi was executed at the end of 2002, after many more terrorist attacks had taken place. His body was sent back to Pakistan, and his funeral was attended by province’s entire leadership, the army commander, and the nation’s ambassador to the U.S. It’s safe to say that our criminal justice system didn’t do much here to combat terrorism, or even deter it, though it did eventually punish the culprit.

One month after the CIA shooting, on February 26, 1993, Al-Qaeda terrorists set off a powerful truck bomb under the World Trade Center, hoping to topple Tower One into Tower Two. Ramzi Yousef masterminded it, drove the van an lit the fuse. The project was financed by his uncle Khaled Sheikh Mohammed, and several others took part. It didn’t go exactly as planned, but six people were killed and more than a thousand were injured. Law enforcement didn’t know how it had happened, but the NYPD and FBI began looking for clues. The VIN number on a piece of axle eventually led to Abdul Yasin, the Iraqi who had constructed the bomb. Yasin was taken to FBI headquarters in Newark, questioned briefly, and released. Yasin caught a plane back to Iraq the next day, and his whereabouts are now unknown. Ramzi Yousef’s apartment was then searched, where the police found bomb-making stuff and the business card of Al-Qaeda’s chief bomb-maker and money-launderer Mohammed Khalifa. Ramzi Yousef was not captured, and escaped to fight another day. Khalifa was arrested in 1994 for his role in the bombing, as he was preparing to leave for the Philippines, but the U.S. simply deported him to Jordan. Jordan let him go, and he continued to prosper until he was assassinated in 2007. A few of the henchmen were tried in 1994, and got life sentences. Subsequent events show how abysmally the criminal justice system failed here.

In 1995, anti-government radical Timothy McVeigh copied the truck-bomb idea to retaliate against recent atrocities committed by the feds at Waco and Ruby Ridge. He succeeded in blowing up the federal building in Oklahoma City, killing and injuring hundreds, including the children in the day care center. McVeigh walked away, but his Darwin-Award stupidity got him arrested and ultimately convicted. He got pulled over 90 minutes after the bombing for driving without a license plate, resulting in his arrest for a concealed weapon. He wasn’t suspected of the bombing yet, but he copied the 1993 bombing so well that he gave the feds a road map that eventually led them right to him: he also rented a Ryder truck, the VIN on a part of the axle identified the truck, which was recognized by the motel workers where he’d checked in under his own name. A couple of days later, after he was released on his gun charge in state court, the feds took him into custody. His accomplice Terry Nichols turned himself in that same day, and a search of Nichols’ home turned up all the bomb-making stuff and plans. McVeigh’s own sister would testify against him. Thousands of law-enforcement personnel took part in the investigation, 28,000 interviews were conducted, literally tons of evidence were amassed, millions were spent, and after a massive trial in 1997 McVeigh was sentenced to death. On June 11, 2001, he was executed. The system did its job here, but that’s all it did.

Soon after their 1993 bombing, Al-Qaeda compatriots Ramzi Yousef, Khalid Sheikh Mohammed and Mohammed Khalifa popped up again. Yousef had kept busy in the meantime, first trying to bomb Pakistan’s prime minister a few months after the WTC bombing, and then killing and injuring hundreds in the bombing of the Imam Reza shrine in Iran. Now in 1994 they planned to kill the Pope while he visited the Philippines the following year, and then during the distraction they’d blow up 12 airliners in the air crossing the Pacific from Asia to the U.S., killing 4,000 people. The next phase would involve hijacking planes and flying them into landmark buildings. For the bombings, their idea was to plant small explosives on the planes during the first leg of a two-leg flight, concealing the bombs in childrens’ toys, and then get off the plane so as not to be blown up with it. First, they needed a trial run to see if that would work. So on December 11, 1994, Ramzi Yousef got on a Philippine Airlines 747 en route to Tokyo, went into the lavatory to assemble the explosive, and set it under seat 26K, which in older 747s would have been directly over the center fuel tank. He got off the plane at Cebu, and the bomb went off during the leg to Tokyo. It wasn’t over the fuel tank, so the plane didn’t blow up, but the bomb killed the man sitting in the seat. Also, it had been aligned up-and-down instead of side-to-side, so the wall of the plane wasn’t punctured. Still, those were easy details to correct, and the team started working on a dozen more bombs in Manila. Fortunately, a fire in Yousef’s apartment led to suspicions. The Manila police raided the apartment, had a wild rooftop chase, and ultimately seized a laptop containing all the plans. A later raid turned up the plans for flying planes into buildings. Yousef escaped to Pakistan. He was turned in by one of his recruits in return for a $2 million bounty, and brought back to the U.S. to stand trial for the conspiracy to blow up the flights to the U.S. (We watched that trial while interning with the Southern District’s terrorism and organized crime unit, it wasn’t bad.) He was convicted after a long trial in 1996, and got a life sentence. He was later convicted in 1997 of masterminding the 1993 bombing, and got another life sentence. He was convicted again for conspiring in the 1993 bombing (a complete waste of the system’s resources by this point), and got another life sentence. He’s doing his time in solitary at the Supermax in Colorado. Sure, the system punished the culprit, but as we now know it didn’t do a damn thing to prevent future terrorism.

In July 1996, Eric Rudolph decided to protest against abortion and the “global socialist” Olympics. He did so by setting off a bomb during the games in Atlanta. One person was killed, and over a hundred were hurt. Rudolph put three pipe bombs in an army pack, filled the pack with nails, wedged a steel plate in to direct the blast like a claymore, and hid it under a bench. He called 911 to issue his warning, and meanwhile a security guard had already noticed the pack and was clearing the area so the bomb squad could check it out. Before the bomb squad arrived, the bomb went off, and nails flew everywhere. The security guard, Richard Jewell, was at first praised as a hero, but then the feds started investigating him as a potential suspect. The media had a field day with the idea of a failed police officer who planted a bomb so he could be a hero, but in October the U.S. Attorney formally cleared him of suspicion. The feds then admitted that there were no other suspects, and the case went cold. Rudolph probably would have gotten away with it, but like other similar offenders he was emboldened to try it again. He used similar bombs in 1997 to attack an abortion clinic and a lesbian nightclub in Atlanta. The feds were able to figure out they were all made by the same person. Another bomb at an abortion clinic in Birmingham gave them the last clues they needed, including part of a license plate, to tie it all to Rudolph. They tipped their hand, however, allowing Rudolph to flee into the Appalachians. He remained a fugitive for more than five years. He was arrested by accident: while scavenging for food in a garbage can, a rookie cop suspected him of trying to commit a burglary. Five months later, in October 2003, the feds charged him with the four bombings. Time passed. Then in April 2005, Rudolph took a plea to a life sentence, avoiding the death penalty. He’s with Yousef at the Supermax now.

In February 1997, a Palestinian named Ali Hassan Abu Kamal went to the observation deck of the Empire State Building to carry out a suicide attack. He’d left Ramallah in December, and entered the U.S. on Christmas Eve. He bought a gun in Florida, then went up to New York. On the evening of his attack, he went to the observation deck, pulled out his gun, and started shooting into the crowd. One tourist was killed and six others were injured. Then he put the gun to his head and shot himself. Under orders from Yasser Arafat’s regime, the gunman’s family gave a false story that he was suicidal after a failed business venture, but in 2007 the family revealed that it had been a politically-motivated attack on the U.S. for its support of Israel. Law enforcement wasn’t able to piece together his sudden entry from a place known for its suicide bombers, his purchase of a firearm, and travel to a landmark population center. Nor should that have been law enforcement’s job. But others could have.

In September 2001, a lot of bad things happened. Al-Qaeda did it, masterminded by Khalid Sheikh Mohammed again, using a barely-tweaked version of his and Ramzi Yousef’s Phase II plans from Manila. A lot of finger-pointing went on afterwards, because although U.S. intelligence agencies knew a lot, and were expecting “something very, very, very big,” and in August the president’s CIA brief even said Al-Qaeda was determined to strike inside the U.S., the intelligence community didn’t — indeed, believed that they couldn’t — share this information with domestic law enforcement. CIA had minimal capacity to conduct paramilitary operations of its own, and the military was completely uninvolved in countering Al-Qaeda. The FBI had almost no capabilities that could have prevented the attacks, even though it had significantly ramped up its counterterrorism efforts after the 1993 WTC bombing. But as with any other law enforcement agency, its focus was exclusively after-the-fact and case-specific. The FBI’s ability to gather intel was limited, there was no sharing of intel from other agencies, and the FBI didn’t have the training or resources to do anything about it even if they did get anything useful.

But that was because the FBI is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

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Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

Timothy McVeigh wasn’t sent by some foreign opponent, though. Does that make his acts a crime as opposed to war? Yes, and more: They are treason, as well as crime. Article III Section 3 defines treason, and puts it within the realm of the federal courts: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Congress duly adopted that definition of the offense in 18 U.S.C. §2381, which allows a sentence of death.

What about Eric Rudolph? Yes, that sort of terrorism counts as crime. If he was trying to force a political decision by violence, then it was terrorism, but he wasn’t trying to attack America, so it stays at the level of a crime. And his attack on the lesbian bar wasn’t so much political as a hate crime, really. Not all mass-murder is war, nor is it treason.

So who should be prosecuted in the criminal courts? Not terrorists directed from abroad. Not combatants captured during war, whether declared or not. It should be limited to offenders like Eric Rudolph.

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.

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The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.

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How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.

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Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

-=-=-=-=-

Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

-=-=-=-=-

So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

Way back in May 1964, in the very small town of Meadville, Mississippi, two black teenagers were hitchhiking down the road when James Ford Seale drove up. Seale, a member of the KKK, told them he was a revenooer looking for moonshiners, and told the boys to get in his car. He then drove them off into the forest. A bunch of other Klansmen met up with them.

Seale pointed a sawed-off shotgun at the boys, while the other Klansmen tied them to a tree. Then the boys were whipped to within an inch of their lives with “bean sticks.” The bloodied boys were hauled to a farm nearby, where Seale bound and gagged them with duct tape. The boys were wrapped in a tarp, shoved into a Klansman’s trunk, and driven 100 miles to a secluded riverbank.

While the boys were still alive, they were chained to the engine block of an old Jeep, and to pieces of railroad track. Then the Klansmen dumped the boys in the river, where they drowned. One of the Klansmen later reported that Seale “would have shot them first, but didn’t want to get blood all over the boat.”

The boys were killed because they were black, and because Seale thought they might have been civil-rights workers.

-=-=-=-=-

In June 1964, three civil rights workers went to Longdale, Mississippi, to investigate the burning of a Methodist Church that had been a civil-rights meeting place. A sheriff’s deputy, also a KKK member, recognized their car and locked all three up. The men were held incognito until an ambush could be prepared, and then were told to get out of the county. The deputy followed them to the edge of town, then pulled them over again. A KKK gang showed up, and the three workers were taken to an isolated place to be brutally beaten and shot to death. Their car was burned in a swamp, and their bodies were buried in a dam.

Their disappearance got national attention, and search parties went out.

In July, one of the search parties found the drowned bodies of the two boys Seale had killed in May.

-=-=-=-=-

Seale and several others were investigated for the murders, appearing before a House subcommittee on Un-American Activities in 1966. The Klansmen were asked about a number of kidnappings and murders, but nothing ever came of it. Seale just sat there smoking a cigar, and took the Fifth.

-=-=-=-=-

About forty years went by. The murders of Charles Moore and Henry Dee were forgotten.

-=-=-=-=-

Then a Canadian filmmaker saw some old CBC footage of the boys’ bodies being hauled out of the river, with the narration “it was the wrong body. The finding of a negro male was noted and forgotten. The search was not for him. The search was for two white youths and their negro friend.”

The filmmaker, David Ridgen, began working on what would become the documentary “Mississippi Cold Case.” He tracked down the brother of one of the victims, a retired 30-year Army veteran named Thomas Moore, who helped work on the film.

The press had been told that Seale had died in the meantime. But it was discovered that he still lived, and his family had lied to protect him. Ridgen and Moore went to the local U.S. Attorney, who promised to re-open the case.

In early 2007, Seale was indicted on two counts of kidnapping and one count of conspiracy. A fellow Klansman, after being given immunity, told the whole story. Seale was convicted of kidnapping after a jury trial in June 2007.

In August 2007, Seale was given three life sentences.

-=-=-=-=-

Seale appealed to the Fifth Circuit. He argued that the statute of limitations for kidnapping had run out. At the time of the crime, there was no limitations period; but in 1972 it changed to a 5-year period.

That’s a pretty damn good argument. It was a capital kidnapping in 1964, which had no statute of limitations. But then in 1972 we got rid of capital punishment. So it reverted to an ordinary 5-year period.

The government pointed out that in 1994, after Furman v. Georgia, we brought back the death penalty. It was constitutional again. So this was a capital kidnapping again. And he was prosecuted and sentenced after it had been deemed a capital kidnapping again. So there was no statute of limitations.

The Fifth Circuit agreed with Seale, and reversed his conviction in September 2008.

The prosecution requested a rehearing en banc. The full panel vacated the appellate decision, so that it could reconsider the issue. They sort of have to do that.

The full panel then duly reconsidered the issue, and split evenly down the middle in June 2009. The effect was to leave the trial court’s conviction and sentence intact. The original Fifth Circuit decision had been vacated.

So now there was no appellate decision at all! And Seale was left with no more avenues to fight his conviction.

Almost.

Seale took it to the Supreme Court. It wasn’t a petition for certiorari, but the almost-forgotten “certified question.”

-=-=-=-=-

How that works is, the Circuit “certifies” a question that it wants the Supremes to help out with. The Supreme Court is asked to instruct the Circuit court on how it ought to rule in the case.

That’s permitted by Rule 19 of the Supreme Court rules, but it only happens once in a blue moon. The last time it happened was in 1981, when the Second Circuit asked for help with the President’s authority to say claims before the Iran-U.S. Claims Tribunal had no legal effect in U.S. courts (the Supremes said he can do it). There was another certified question in the 1970s on whether a retired judge gets to vote on whether to hear a case en banc (no). Before that, there was one in 1964 on whether there is a right to a jury in a criminal contempt case (no). And the only other one in living memory was in 1946, where the Supremes said the Circuit can’t review by mandamus a district court’s remand back to the state court after the case had been removed to the district court.

-=-=-=-=-

So here was a historic opportunity for the Supreme Court to not only decide a rare certified question, but also to decide an issue of great importance to a variety of civil-rights-era cases that are still kicking around the federal courts.

And the Court refused.

This isn’t the first time the Roberts Court has punted on issues that it really ought to have decided. And the did it again here.

This is an issue that may seem hyper-technical, but it is critically important! There are a lot of old cases kicking around that were capital cases at the time, then weren’t and now are again. There’s lots of aging Klansmen out there, not to mention the number of cold-case murders being resuscitated by DNA evidence. Whether the feds can even prosecute these cases any more is at stake!

Not to mention the fact that Seale, horrible as his crimes were, seems now to have been denied due process. He can’t appeal any more? Just because the Circuit (singular) split, and the Supreme Court punted? His legal argument is going to go undecided? How is that remotely right?

-=-=-=-=-

The Court doesn’t write opinions from a denial of a certified question. But they sure got a dissenting opinion today, in United States v. James Ford Seale, by the strangest of bedfellows: Justices Stevens and Scalia.

The two, usually diametrically opposed in their jurisprudence and judicial philosophy, agreed wholeheartedly that the Court should have decided this case.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U.S.C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964.

* * *

In 1964, a violation of §1201 was a capital offense [if] the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnapping results in the loss of life. But for more than two decades in between, Seale’s crime was not punishable by death.

* * *

The question is narrow, debatable, and important. … I see no benefit, and significant cost, to postponing the question’s resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted.

We couldn’t have said it better ourselves.

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.

-=-=-=-=-

This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.

-=-=-=-=-

But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.

-=-=-=-=-

Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.

-=-=-=-=-

Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.

-=-=-=-=-

Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and blocked shipping into the area.

As usual, there was a U.N. outcry against Israel’s actions, and a commission was formed. Last week, after several months of review, the commission came out with its report. Although it did say that Hamas shouldn’t have fired rockets at civilians, it came down hardest on Israel, concluding that Israel had committed major violations of international law, probably war crimes, and its actions did not count as self defense.

There have been the usual cries of unfairness all around, what one would expect in any such matter. The whole matter seems to be just par for the course, and we admit to not paying all that much attention to any of these goings-on.

But this morning, a piece in the WSJ by notable criminal law scholar Paul H. Robinson caught our eye. In his article, “Israel and the Trouble With International Law,” Mr. Robinson argues that, although the U.N.’s report might strike many as “a bit unsettling or even bizarre,” in nonetheless is probably correct, in terms of international law.

Mr. Robinson argues that the rules of international law forbid the kind of self defense that American criminal law would allow. Under international law, he says, if a gang of thugs is openly preparing to rob your store and kill your security guards, and is assembling in the parking lot across the street, and there are no police, you still cannot act in self defense until they actually start their attack. But under American criminal law you would be allowed to use such force as is “immediately necessary” to prevent the attack from happening, without waiting to be attacked first.

Similarly, he says, if a neighbor was letting thugs use his house, from which they regularly attacked your family, and there are no police, then international law would forbid you from using force against the thugs and the house they’re taking sanctuary in. But American criminal law would let you do it.

And as a third example, he says that international law only allows force against those thugs when they’re presently in the act of attacking your family, and not during the periods in between attacks, even though it’s an ongoing series.

So, he concludes, by going after the source and trying to prevent further acts of violence against its civilian population, Israel probably did violate international law here. The rules only let it use force to stop the individual attacks, and only while they’re actually happening.

-=-=-=-=-

We admire Mr. Robinson very much, but he’s not precisely correct here. He focuses on Article 51, but that’s not the only source of law here. The law on pre-emptive self defense is a non-Charter use of force, but which is nonetheless permitted by customary international law.

Article 51 of the U.N. Charter says that nothing in the Charter is to be construed so as to impair the “inherent right” (meaning it pre-existed the U.N.) of nations to use self defense against armed attack.

“Armed attack” does seem pretty limiting. Not every act of aggression counts as an attack, after all. Merely threatening force doesn’t count. The enemy may in fact be involved in a use of force, and it may even be an illegal use of force, but it still might not be an armed attack.

So Robinson cites the Nicaragua case, where the Sandinistas in Nicaragua were unlawfully supplying arms and sanctuary to insurgents trying to topple El Salvador’s government. Even though this was an illegal use of force, El Salvador had no right under international law to use force itself in order to stop Nicaragua’s violations of its sovereignty.

But an armed attack can be taking place if the enemy is massing across the border. Like his example with the thugs across the street, who are just waiting for night to fall before they attack your store. If that massing of troops is just an exercise, well then you’re not allowed to attack them.

But if it truly is preliminary to an imminent attack, then by all means strike them. Read on to see why it’s okay to do so.

Remember, though, you need to immediately report to the Security Council that you are under armed attack. And you need to promptly report your response actions to the Security Council.

The main things to keep in mind are that your force must be necessary, and it must be proportional.

-=-=-=-=-

The most famous case in international law, The Caroline (1906), deals with the hot-button issue of preemptive self defense. This one predates Article 51, and it is certainly part of customary international law.

The United States had a bunch of nasty battles with Canada during the War of 1812. There was a lot of bad blood, and the two countries remained hostile for many years thereafter. Unlike now, Canada was the major power, and the U.S. was the little guy. Nevertheless, the U.S. kept trying to take bits of Canada, and the border between Lake Erie and Lake Ontario was heavily militarized. Sound familiar?

The Canadians learned that the U.S. was planning a military incursion across the border into Canadian territory. Before the U.S. began its attack, however, the Canadians struck first.

The Canadians crossed the border first, grabbed the U.S. ship The Caroline, and killed everyone on board. Then they set the ship on fire. Then they launched it over Niagara Falls.

The U.S. Secretary of State at the time was Daniel Webster. He and his British counterpart Lord Ashburton began writing back and forth about what constituted proper self defense. It resulted in a letter from Webster saying:

The President sees with pleasure that your Lordship fully admits those great principles of public law, applicable to cases of this kind, which this government has expressed; and that on your part, as on ours, respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule, he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’

The law arising from this case is that, for pre-emptive self defense to be lawful:

1) The necessity must be immediate;

2) The necessity must be overwhelming;

3) There must be no other choice;

4) There must be no time to deliberate; and

5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)

The Caroline keeps coming up again and again whenever the question of anticipatory self-defense is proper. These five criteria are the ones that get cited by pretty much everyone.

The Nazis, for example, when they invaded Poland, went out of their way to make it look like Poland had started it, so as to justify their invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. They were trying to make the facts appear to fit the requirements of The Caroline. The Nuremburg tribunal, however, did not buy it.

In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but merely a quarantine of Cuba on the high seas to keep the missiles out. A blockade certainly is a kind of use of force, but it is less intrusive than other kinds. The United States proposed this theory in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-educated in international law) who stood up and cited The Caroline case, asking “is this emergency instant, overwhelming, leaving no choice of means, and no moment for deliberation?”

When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Of course, the act had already been done by then.

-=-=-=-=-

So if one reads the U.N. report more closely, one finds that it goes out of its way to find Israel’s strikes to have been disproportionate to the threat, primarily by including the blockade of shipping. The reasoning goes that the blockade punished the entire population, and wasn’t necessary to self defense.

We’re not particular fans of Israel, but that simply doesn’t wash. Gaza doesn’t produce its own rockets and mortars. Hamas gets them from Iran, Syria or other sources. So a blockade to prevent the ongoing attackers seems perfectly proportionate and necessary here.

Going through the five factors, what do we have?

1) Was the necessity immediate? Certainly. Israel had been under ongoing attack for months, with no sign of it letting up.

2) Was the necessity overwhelming? Sure. Civilians were being targeted for strikes by military weapons, and sovereignty was at stake as well.

3) Was there no other choice? It sure looked like it. Negotiations and diplomacy seemed only to be encouraging further attacks, as they always seem to do in that part of the world.

4) Was there no time to deliberate? Hmm. On the one hand, the Israelis seem to have been deliberating for months already, but if that precludes them from eventually saying enough is enough, then such a rule would encourage less deliberation, not more. Their population was under attack, and there was reason to believe it was going to happen again immediately, so it seems justifiable to call this as being no time to deliberate.

5) Was the response proportionate? The blockade was, to the extent it was focused at preventing Hamas from making further attacks. The air strikes targeted Hamas command, control and munitions, using precision-guided weapons to minimize collateral damage. It sure seems to have been proportional within the meaning of the law. Although many non-Hamas civilians were killed or wounded by the strikes, that does not change the fact of their limited purpose and execution.

So yes, if one only has the U.N. Charter to go by, Israel would seem to have violated international law. But there’s more to international law than just the U.N. charter. And under customary international law, it looks like Israel’s use of force was a lawful act of pre-emptive self defense.

The Supreme Court did something today it hasn’t done for generations — it took an “original writ” of habeas corpus (a request made directly to the Supreme Court itself, instead of first filing it in a lower court), and then it ordered a federal District Court to hold a hearing on whether the convict is actually innocent.

The really dramatic thing about this is not the acceptance of an original habeas petition, but the fact that the Court’s order seems to imply that a convict may not be executed if he can prove actual innocence. As demonstrated most recently by the Court’s Osborne decison, it has persisted in absolutely refusing to decide that issue. They have gone out of their way, in fact, to repeatedly leave the question “unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable,” as Scalia said this morning.

Troy Anthony Davis was convicted 18 years ago, in Georgia state court, for the shooting death of an off-duty police officer, Mark Allen McPhail. At trial, Davis had insisted that he was innocent, though he had been present at the time. The jury didn’t believe him, and there were no constitutional problems with his trial.

Since then, seven of the witnesses against him have recanted their testimony, and evidence has come forward that the prosecution’s main witness was the actual killer. Davis has invoked the Supreme Court’s original habeas jurisdiction, relying on Court Rule 20.4(a) permitting such discretionary powers under “exceptional circumstances.”

A majority of the Court (new justice Sotomayor did not take part) agreed with Davis, found the necessary exceptional circumstances, and transferred the petition to a District Court. The District Court has been instructed to hold a hearing to determine whether evidence that could not have been obtained at the time of trial clearly establishes Davis’ actual innocence.

This appears to have set off quite a debate among the justices, in the middle of their summer recess.

Justices Scalia and Thomas are adamant that the Court did the wrong thing here. Most importantly, they point out that the District Court can’t grant Davis the relief he seeks, even if it wants to. So this transfer “is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.”

District Courts only have power to release convicts pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. That statute prohibits habeas corpus for claims that were adjudicated on the merits in state court, unless that decision violates “clearly established Federal law, as determined by the Supreme Court of the United States.”

Because the Supreme Court has gone out of its way not to determine the issue of whether actual innocence is a valid basis for habeas release, Scalia and Thomas hold that it cannot be “clearly established Federal law, as determined by the Supreme Court of the United States.”

Justice Stevens, writing for the majority (joined by Justices Ginsburg and Breyer), simply sidestepped the issue. The AEDPA might not apply in an original habeas petition, he mused. And even if it does apply, it might be unconstitutional for it to prevent relief for someone who has established his innocence. Or, in the alternative, one might find that clearly established Court precedent already permits such relief, as it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

Stevens’ closing paragraph, however, makes it clear that he understands that the Court has never dealt with the issue before, but he feels that it is time to create some new law. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” Applying the law as it exists, the way Scalia and Thomas would have the Court do, “would allow such a petitioner to be put to death nonetheless.”

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In the 2008 term, Stevens seemed to be going out of his way to create a legacy. Writing as if he was about to announce his own retirement, his opinions seem to have sought for better principles rather than the application of existing ones. His jurisprudence is not about objective law, but subjective justice.

So this opinion fits right in with his others. To hell with the Court’s insistence on staying out of the “actual innocence” defense. here was a perfect opportunity to force the Court to deal with it once and for all. By sending it to the District Court expressly for the purpose of establishing that defense, he has ensured that the case will re-appear before the Supreme Court to decide it.

If Davis wins, the State of Georgia will surely appeal, claiming that the District Court lacked the power to decide the issue. If he loses, he’s sure to appeal, along with amici like the NAACP, claiming that the District Court abused its power in rejecting his claim.

Either way, the Supreme Court would eventually be faced with deciding the issue of whether actual innocence is a valid basis for a habeas petition.

It looks to us like Stevens is gaming the system for activist purposes. For the record, we firmly believe that actual innocence should trump procedure and all other legalistic concerns. But it remains to be seen whether he’ll succeed in getting the law to shape itself accordingly.

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

* * * * *

The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.

The clip above is from a speech Nat Hentoff gave a little while ago, summarizing some of the problems he has with hate crime legislation in general, and with the bill currently being rammed through Congress. The day after he gave that speech, we wrote in more detail about our own concerns with the law.

Although we do not like hate crimes any more than Mr. Hentoff does, we differ with him in that we don’t think they’re per se unconstitutional or inconsistent with American jurisprudence.

Hate crime laws stink because they fail to distinguish between criminal conduct and that which is merely nasty. They take something offensive, and call it an offense. That’s not what criminal law is for. The purpose of criminal law is to identify those acts that are not merely unpleasant, but which are so dangerous to society that they call out for the State to impose its might on the individual and punish him by taking away his life, liberty or property.

Now, there is a PC echo chamber that has a disproportionate voice in today’s government, and in that chamber “hate” really is seen as something requiring extra punishment. Commiting a crime with hate required more punishment than if you committed the same crime for some other reason. But outside of that echo chamber, the mainstream culture just doesn’t see a distasteful motive as a justification for extra punishment.

Hate crime laws also stink because they are inherently un-American. They’re something you’d more expect to see in continental Europe, where state dominion over the individual has been the norm since time out of mind, and there are fewer protections for offensive thoughts. Hate crimes are the stuff of the horror show that England has lately become, as London’s Mayor Boris Johnson writes today, complaining of an England with “its addiction to political correctness — where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse ‘gay.’ [England's] courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.” That is not the direction in which Americans tend to see themselves heading. Off campus, America simply is not a place where the ASBO could exist. And so it is not a place where hate crimes ought to exist.

That doesn’t mean such laws are necessarily inconsistent with the underlying principles of how we make criminal laws in general. They may not fit with American sensibilities, but they don’t violate our jurisprudence. As we wrote last time, the general idea of hate crimes is simply to add a new level of mens rea. It’s not only doable, it’s something that we’ve done before.

Today, Mr. Hentoff published another piece on the upcoming hate-crimes law, spelling out why he thinks it is unconstitutional and not merely a bad idea. It “violates all these constitutional provisions,” he says: the First Amendment, equal protection of the laws under the Fourteenth Amendment, and the double jeopardy clause of the Fifth Amendment.

We do think the bill, as written, is so vague that is must be voided by the Rule of Lenity. And we do think that, as written, it could well have unintended consequences, and create far more injustice than it’s supposed to prevent.

But unconstitutional? We hate to say this, but we think Mr. Hentoff… we think he… (we can’t believe we’re saying this about one of our intellectual idols)… we think Mr. Hentoff has mischaracterized the rights and protections of the Constitution.

How does it violate the First Amendment? Hentoff acknowledges that the bill explicitly says that it isn’t to be read so as to “prohibit any expressive conduct protected from legal prohibition” or speech “protected by the free speech or free exercise clauses in the First Amendment.” But he alludes to 18 U.S.C. § 2(a), which makes you punishable as a principal if you merely “abet, counsel, command or induce” a crime. Speech that induces a hate crime would make you guilty of the hate crime, and so free-speech protections would be violated.

This point was raised in 2007, the last time this bill was considered, when Democratic Rep. Artur Davis said that the law could conceivably be used to prosecute a pastor who had preached that homosexuality is a sin, if it induced someone else to commit violence against a gay person.

There are two big problems here. First of all, the First Amendment protection of free speech is not absolute, and Hentoff of all people should know this. There is always a balancing of the right to free expression against the harm to society that such expression may cause. You don’t have a free-speech right to shout that you have a bomb while standing in line at an airport. You don’t have a free-speech right to offer to sell crack to an undercover. When speech makes out an otherwise criminal act, you’re going to face jail for having said those words. And the First Amendment won’t protect you.

The other problem is that 18 U.S.C. § 2 does not impose criminal liability for unexpected consequences. A pastor who speaks about the Bible to his congregation isn’t going to be liable for subsequent acts of a deviant member of his flock. That’s not the same as a similar authority figure instructing an unstable young man that God wants him to kill gay people. There’s an element of willfulness or recklessness that’s required. And if you willfully said something to induce an act of violence, then it is not speech that the First Amendment protects.

How does this hate crimes bill violate the Fourteenth Amendment? Hentoff says it violates equal protection, not in the way it’s written, but in the way it will be enforced. A white person targeting black people will be punished for the hate crime, but a black person targeting whites won’t be.

That may make intuitive sense, as the law was originally conceived to battle discrimination against minorities. And prosecutors may choose not to apply it if the victim is a white male. That has happened before, as Hentoff points out. A gang in Colorado had an initiation ritual of raping a white woman, and the prosecutor in Boulder opted not to charge a hate crime there.

Nevertheless, the law itself, as written, does not violate equal protection. Yes, prosecutors will (and must) always have the discretion to choose whether to bring a charge or not in a given case. And it is entirely likely that a black guy who punches someone in the nose just because they’re white may not be charged with a hate crime, even though it clearly fits the bill, because of other factors going through the prosecutor’s head — it might not be politically savvy to further penalize someone who (to the paternalistic PC) already had to suffer the discrimination and indignity that made him act out like this. Or it just might not feel right.

But then again, this bill, as amended, is now written very broadly. It casts a much wider net than mere black vs. white. In addition to race, it considers violence committed because of national origin, religion, sex, sexual preference and disability. Everyone is a potential victim of a hate crime now. There are going to be plenty of opportunities to charge members of “victim classes” for hate crimes when they attack members of other victim classes. A disparate effect has yet to occur, and there’s good reason to believe that it never will.

And how does the bill violate double jeopardy? Hentoff is concerned that someone could be charged with an assault in state court, and be found not guilty, only to find himself haled into federal court to face a new prosecution for the same act under the federal hate crime law.

Unfortunately, this is not a double jeopardy problem. It is not unconstitutional for the feds to prosecute someone for a federal crime after he’s already gone through a prosecution for the same act in state court. Double jeopardy does not apply to prosecutions brought by different sovereigns. Each state is a separate sovereign, in addition to the federal government. If you stand in Manhattan and shoot someone on the other side of the Hudson in New Jersey, both states are allowed to prosecute you for it. Some states have extra protections for the individual here — New York won’t prosecute someone after the feds did — but the feds are not so constrained.

And the feds already do this kind of thing routinely with gun laws. If you committed certain crimes with a gun, you can be prosecuted in state court for the crime, and then afterwards get prosecuted in federal court for possessing the gun at the time. These cases are extremely straightforward — either you possessed the gun or you didn’t — and they often go to trial, because of mandatory sentencing, so young federal prosecutors tend to cut their teeth on this stuff. It’s routine, and it does not at all violate double jeopardy.

* * * * *

Hentoff ends his piece today by urging President Obama, before signing the bill into law, to refresh his understanding of the Constitution. He suggests that, as the “former senior lecturer in that document at the University of Chicago, [Obama] should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.”

We love Nat Hentoff. We idolize the man. We agree that hate crime laws have no place in this country. But we think he ought to take his own advice and re-familiarize himself with what the Constitution does and does not protect.

The other day, by a vote of 249 (59%) to 175 (41%), the U.S. House of Representatives voted to expand the scope of federal “hate crimes” to include crimes against gay people, transgender people, the mentally disabled and the physically disabled. With strong support from the White House and from Senate democrats, we expect to soon see this become law without many changes.

We frankly don’t like hate crimes, but from a jurisprudence perspective there really isn’t any problem with them. More on that below. At the same time, however, this particular bill is problematic. More on that below, as well.

The bill, H.R. 1913 (text here), imposes up to 10 years in prison if you to commit violence because you thought someone was black or gay or whatever. (It also authorizes grants of up to $100,000 per year in federal money to the various state, local and tribal law enforcement agencies. The money is to go towards investigating and prosecuting hate crimes, and programs to reduce the occurrence of hate crimes.)

In the form passed by the house, the hate crimes portion of the law would now do the following:

1. With respect to:
Race,
Color,
Religion, and
National Origin

…A. In general.

………1) If you attempt to cause bodily injury to someone, or if you willfully cause such injury, AND

………2) If you did so with fire, a gun, a dangerous weapon, an explosive, or an incendiary, AND

………3) If you did so BECAUSE of the actual or perceived race/color/religion/national origin of the victim, THEN

………4) Your maximum sentence goes up to 10 years.

…B. If someone died or you tried to kill, or you kidnapped or tried to kidnap someone, or you also committed or tried to commit aggravated sexual abuse, THEN

………1) There is no maximum sentence, and you can get anything up to life in prison.

2. With respect to:
Religion (again),
National Origin (again),
Gender (I guess they’re referring to biological sex, as opposed to foreign grammar),
Sexual Orientation,
Gender Identity, and
Disability

…A. In general.

………1) The exact same stuff as above applies, but only if you acted under any of these circumstances:

…………..a) Either you or the victim crossed state lines or a national border.

…………..b) Either you or the victim used an instrument of interstate or foreign commerce.

…………..c) You used a weapon that had traveled in interstate or foreign commerce.

…………..d) Your conduct interferes with the victim’s economic activity.

…………..e) Your conduct otherwise affects interstate or foreign commerce.

Finally, to forestall the criticisms that hate crime laws infringe on First Amendment rights, the statute says it shall not be construed to prohibit any expressive conduct protected by the Constitution. Nor to prohibit any activities protected by the Constitution.

* * * * *

So, what does this mean?

Critics of hate crimes laws, like Rep. Lamar Smith (R-TX), say that such laws undermine the principal of equal justice for all. “Justice will now depend on the race, gender [gah!], sexual orientation, disability or other protected status of the victim,” Smith said during debate. “It will allow different penalties to be imposed for the same crime.” House Republican Leader John Boehner of Ohio said that this “places a higher value on some lives compared to others. That is unconstitutional, and that is wrong. All life was created equally, and all life should be defended equally.”

Such criticisms miss the point, a little bit.

As written, this law does not put greater value on a victim’s life because of their race, sex, religion, or what have you. The victim’s actual status has nothing to do with it. The law doesn’t care if the person actually was black or female or Methodist — it only cares whether the offender thought so.

The focus is not on the victim. It is on the offender’s state of mind. In other words, all this law does is insert a new form of mens rea into criminal jurisprudence.

Mens rea is the legal word for an offender’s state of mind, and is almost always a crucial element of a crime. A harmful act that was committed without the requisite mental state is not going to be a crime. For the most part, society doesn’t want to punish people when they weren’t trying to do something wrong, or when they weren’t breaching any duty to be careful.

The traditional mens rea have coalesced over time into a continuum that looks something like this:

…FAULTLESS. There is no culpability here. You weren’t doing anything wrong, or you can’t be held accountable for your actions. Society doesn’t want to punish you, because it would serve no purpose. It would be mere retaliation, and that’s just not civilized. (Don’t start thinking we’re too evolved, however — we do still have STRICT LIABILITY laws, like statutory rape and certain weapon and drug possession crimes, where society couldn’t care less whether you meant to do it, or even knew that you were doing it. So we still have some holdovers from the old “eye-for-an-eye” days of punishing even mere accidents.)

…NEGLIGENT. This is the lowest level of culpability. You were supposed to be careful, and you weren’t and now someone got hurt. You weren’t trying to do anything wrong, but you did anyway, and you ought not to have. Society wants to punish you for this, but only a little. We want to make sure people are careful when they’re supposed to be. Not paying enough attention while driving, then running over a pedestrian, is a crime of negligence.

…RECKLESS. This is punished somewhat more severely. You knew what you were doing might hurt someone, but you did it anyway. Society wants to punish you more for this, because you were just indifferent to the consequences of your actions. You were putting your own interests above those of the rest of us, and someone could have gotten hurt. Shooting a gun indiscriminately out a window is reckless. Driving so fast that you can’t safely react is reckless.

…KNOWING. This is even more severe. When you were reckless, you disregarded the mere chance that something bad might happen. But when you had a pretty good reason to believe that something bad would happen — even though it’s not what you were mainly trying to accomplish — then society wants to punish you much more. Let’s say you caught your spouse cheating on you, so that Saturday night you cut their brake lines. You’re trying to kill your spouse when they take their mother to church the next morning. The resulting accident kills your mother-in-law as well. You weren’t trying to kill her, but you knew she could die as well.

…PURPOSE. This is the most severe. You were actually trying to do it. Society punishes intent the most severely of all, as it’s the most culpable of the mental states. When you severed your spouse’s brake lines in the example above, you intended to kill your spouse.

There are other mens rea out there, which sort of come at this continuum from right angles. ATTEMPT is the big one. It’s a form of intent, of purpose, but it slips in between each of the standard categories. You were trying to commit a crime, but for whatever reason it failed. If you tried to shoot a gun randomly out the window, but it jammed, you’re guilty of an attempted crime of recklessness — you intended to commit a crime with a reckless state of mind. If you tried to purposely shoot someone, but the gun jammed, you’re guilty of attempted murder, attempting to commit a crime with an intentional state of mind. Attempts aren’t punished as severely, because the state of mind is not the only reason for enhanced punishment — the events themselves also play a part in determining culpability (a fact that some on the Supreme Court seem to have forgotten).

So all “hate crimes” laws like this one do is define a new mens rea. This one does not fall within the standard continuum, however. It does not care so much whether you were negligent, reckless, knowing or purposeful. It only cares what you believed to be true of the victim, and that you acted because of that belief.

This really doesn’t even come at the continuum from right angles. It’s wholly separate and apart. It’s a one-off. It’s not even on the same piece of paper. It’s a new kind of mens rea, because it has less to do with your mental state with respect to your actions, and more to do with the reasons why you’re committing them in the first place.

But does that make this new mens rea improper? Not really. It just so happens that, over the past couple hundred years, our national culture has gradually come to consider harmful — actually harmful to society — mistreating people based on attributes beyond their control. People can’t help what color they are, or where they were born, or what religion they were raised in, or what turns them on, or whether they have Down syndrome. Mistreating them because of such things is, to modern eyes, harmful to society.

Society punishes harm to itself by criminalizing it. So it’s a simple step to criminalize mistreating people because you thought they possessed certain attributes beyond their control. That belief, the reason for the criminal act, is just a new form of mens rea, and a harmless one at that.

* * * * *

However, just because we don’t have a problem the concept of this hate crime law, that doesn’t mean we think it is a good one. In fact, there are significant problems with it.

For example, there is a real vagueness with respect to religion and national origin. On the one hand, they’re the same as race, and don’t require additional circumstances. On the other hand, they are grouped in with the new categories requiring additional circumstances. It has to be one or the other, and this vagueness could make hate crimes based on religion and national origin void, under the Rule of Lenity.

Of course, the Commerce-Clause-related circumstances could make this merely a distinction without a difference. But if it there was no difference, then why did Congress go to the effort of writing those conditions for certain victims, but not for others? A savvy defense attorney might well argue that these particular hate crimes are unenforceable.

In addition to this unnecessary vagueness, the law is also overbroad.

Let’s back up. The policy underlying this (and pretty much any other American law against discriminatory behavior) is that we don’t want people being singled out for mistreatment for reasons they have no control over. Again, people can’t help what race they are, so it’s bad to mistreat them for it. It now seems pretty clear that people can’t help what their sexual proclivities happen to be, so it’s bad to mistreat them for that as well.

But there are sexual proclivities that society still wants to punish. There are those who can only get sexual gratification from acts involving children. For the most part, they can’t help this, which is why they usually cannot be rehabilitated. So we have two competing interests here: society’s desire to protect those who can’t help being the way they are, and society’s desire to protect children from sexual predation. It should be obvious to most who read this what the policy ought to be on this. But this law doesn’t go there.

So you could have a situation where a father catches a sexual predator making moves on his young child, and beats him severely with a metal baseball bat. The act was committed primarily because of what the victim was, and it was based on his sexual orientation, so now the father is facing prosecution for a hate crime in addition to the assault.

Or you could have a religion whose believers are sworn to kill all redheads on sight. You happen to be a redhead, and members of that religion just established a temple down the street from your house. You willfully torch the temple, and someone gets hurt. Now, in addition to the arson, you’re looking at a hate crime.

These are extreme examples, to be sure. It’s not something that’s likely to happen. It merely shows that the law is inartfully written, and that it is conceivable that it could therefore be applied in ways that were not contemplated by Congress. These merely illustrate that the law could serve to protect those whom the law does not wish to protect, and penalize those whom the law did not wish to penalize.

These examples also raise a policy question as to defenses. In the first, the father could raise a defense of temporary insanity to challenge the assault claim. In the second, the arson might be challenged with perhaps a Bush-doctrine preemptive self-defense.

But is there room for such defenses in this law, the way it’s written? Temporary insanity is a defense to mens rea. It posits that the necessary mental state did not exist, because circumstances were such that the offender could not have been thinking that way. But here, the temporary insanity would be proof that the necessary mens rea did exist. It’s the result of the knowledge that the victim was a sex offender, and tends to show that the violence was inflicted because of it.

* * * * *

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But this one seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.

So what’s new?

18 U. S. C. §924(c)(1)(A) makes it a federal crime to have a gun on you while committing certain violent or drug-related crimes. There’s a mandatory 5-year minimum sentence just for carrying the gun. If you brandish the gun, it goes up to 7 years. If the gun goes off, it goes up to 10 years.

That’s what happened to Christopher Michael Dean. He was robbing a bank, and had a gun in his hand. He probably had his finger on the trigger like an idiot, because when he reached over a teller to grab money, the gun went off. Nobody got hurt, and it was clearly unintentional. Still, the gun went off, and he got the 10 year minimum for it.

In today’s Supreme Court decision in Dean v. United States, the Court was asked to find that the enhanced 10-year minimum requires some mens rea. Some intent or mental state demonstrating culpability. In a 7-2 decision, however, the Court found that Congress did not impose any such requirement. The majority ruled that this is a crime of strict liability, and so it doesn’t matter whether the defendant meant it to happen or not.

The Court didn’t have a lot of room here. Congress didn’t put anything about mens rea in the statute. It just says you automatically get 10 years “if the firearm is discharged.” It doesn’t say “negligently,” or “knowingly” or “intentionally” or anything like that. It’s written in the passive voice, and nothing else in the statute suggests that Congress meant there to be a mental-state element of this crime.

Dean argued that the law has a progression of ever-harsher penalties. And usually in the law, penalties are increased because of a more culpable mental state. So even though Congress didn’t say it in so many words, they must have intended this 10-year minimum to apply to intentional shootings, as opposed to accidental discharges.

But of course mental state is not the only element that increases culpability. Extra facts can do so as well. Intentionally hitting someone and bruising them is one thing, and intentionally hitting them and killing them is another. Here, bringing a gun to a bank robbery is a bad thing, because there’s a chance it is going to be used, and someone could get hurt. Taking the gun out and waving it around during the heist only increases the chances that someone could get hurt. And even a random shot increases the odds even more. So it makes sense that Congress increased the penalties based on the increased risk to others.

Writing for the majority, Roberts acknowledged that “it is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, strict liability crimes for unintentional conduct certainly do exist. Statutory rape is the most commonly-cited example. The law doesn’t care whether a man knew his sexual partner was underage, or even if he had every reason to believe that she wasn’t. His mental state does not enter into it, and he goes to jail for a crime he never intended, and never realized he was committing. The law takes the act so seriously that it is deemed indefensible, and so it doesn’t care whether it was committed by mistake. Although they are uncommon, there are plenty of strict liability crimes.

The reason why strict liability crimes are uncommon is alluded to in Dean’s case. When we punish a crime, what we’re really punishing is the offender’s mental state. If someone accidentally trips and stumbles into you, society doesn’t want to punish him. What for? There’s nothing to deter, nothing to retaliate against, nothing to rehabilitate — there was no wrongdoing. But if someone had a duty to be careful with his car, but wasn’t, and his negligence hurt you, then he’s going to be punished a little bit. And if he drove dangerously, with reckless disregard of the danger to others, then he’s going to be punished even more. And if he intentionally ran you over, backed up, and did it again, then he’s going to get the most punishment. Even if the injuries are the same in every case, the more wrongful the offender’s mental state, the more culpable he is, and the more punishment he’s going to get. And if there was no mental state, then there’s really nothing to punish.

The law increases punishment for increased culpability. Increased mens rea certainly means increased culpability.

But that’s not the only factor. In addition to the mens rea element, you have the offender’s actions to consider, as well as the harm that resulted. Increasingly risky actions, with the same mens rea, are increasingly culpable. And increasingly harmful results, with no change in mens rea or actus reus, are also increasingly culpable. Dean’s argument didn’t really seem to grasp this concept.

In his dissent, Justice Stevens made the same mistake that Dean did. Stevens argued that, because of the escalating sentences, Congress must have “intended to provide escalating sentences for increasingly culpable conduct,” and therefore “the discharge provision… applies only to intentional discharges.”

Time for Stevens to bone up on his logic. That syllogism is the same as saying “All men have noses. That person has a nose. Therefore, that person is a man.” It ignores the fact that women also have noses. Here, Stevens ignores the fact that mental state is not the only thing that enhances culpability.

Stevens also would have applied the common-law presumption of mens rea — that if something has been criminalized, there is presumed to be some mental-state element of the crime. Legislatures do often leave out the mens rea element from time to time, and the courts fill it in for them. But that’s only when the statute didn’t otherwise provide a basis for the enhanced culpability. Here, however, Congress did provide a basis for enhanced culpability, in the increased risk to others posed by the actions, regardless of whether those actions were intentional.

Breyer also dissented, based on the Rule of Lenity. He felt that the word “discharge” should be interpreted as meaning “firing,” which implies active use of the weapon, and therefore implies some kind of intent. But he conceded that the majority opinion had equally strong arguments for reading this as a strict liability crime. Given these competing interpretations, the Rule of Lenity would have the Court err on the side of the defendant.

However, just because a contrary position can be articulated, that does not mean that interpretation is necessarily ambiguous. The Rule of Lenity is only applicable when the statute is so ambiguous that it didn’t give fair warning of what could happen to you if you violated it. Here, according to the majority, there was no such ambiguity. The statute simply didn’t contain a mens rea element, and it didn’t imply one, and that fact is not grievously uncertain, and so the Rule of Lenity doesn’t apply.

So don’t rob banks. But if you do, don’t bring a gun along. But if you do, don’t wave it around. But if you do, keep your finger off the trigger. Because if it goes off by accident, you’re in big trouble.

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

In an unusually mixed decision for the consensus-driven Roberts Court, the Supreme Court today ruled that federal public defenders can represent death-penalty clients at state clemency hearings. The more liberal justices said federal defenders could do so, but only if the state hearings followed a federal proceeding. Justice Thomas went further, saying that the law as written does not impose such a restriction, and in fact federal defenders would be allowed in any state capital case. Chief Justice Roberts agreed with the majority, but only insofar as the subsequent state proceedings are extra-judicial. Only Justices Scalia and Alito felt that federal defenders shouldn’t be allowed at state proceedings, period.

To get the result they wanted, the majority clearly made hash of the relevant statute, interpreting parts one way but other parts the opposite way, and then adding new interpretations to undo the absurdities that could have then resulted. Roberts allowed himself to justify the same outcome on a fine-point quibble. Only Thomas, Scalia and Alito had truly intellectually honest positions, but they didn’t fit the policy which the Court sought to advance. Once again, it was a case of making the law fit the Justices’ policy wishes — an undercurrent that often explains appellate decisionmaking.

At issue here was 18 U.S.C. § 3599, which provides for appointed counsel in federal proceedings. These lawyers are paid for out of the federal budget, when a client cannot afford a private attorney, and usually only handle matters in federal court. State court matters are typically handled by lawyers appointed and paid for by the state. Among other things, § 3599 sets forth what kind of matters a federally appointed lawyer can handle.

In this case, Harbison v. Bell, Edward Harbison was sentenced to death back in 1983 (yes, 26 years ago!) for beating a 62-year-old woman’s head to a pulp with a vase, after she surprised him while he was burgling her house.

Skipping over years of appellate back-and-forth, we come to a 2005 habeas petition in federal court. The Federal Defender Services of Eastern Tennessee were appointed to represent Harbison during this habeas proceeding. The petition was ultimately denied.

That having failed, Harbison tried for a clemency hearing in Tennessee state court. But he couldn’t get appointed counsel for such a hearing. The Tennessee Supreme Court had held that state law did not allow state-appointed lawyers in clemency hearings.

So Harbison’s federal defender filed a motion, asking that she be allowed to include the state clemency proceeding as part of her federally-compensated representation.

It wasn’t a huge stretch to ask for this, as §3599 permits federal defenders to represent their clients at “proceedings for executive or other clemency as may be available.” But Tennessee is in the 6th Circuit, which had previously construed §3599 as only applying to federal proceedings. So the district court denied the motion, and the 6th Circuit affirmed.

There being a split in the circuits on this issue — the 5th, 6th and 11th saying no federal assistance at the state level, but the 8th and 10th saying it’s okay — it was no surprise that the Supreme Court granted cert. Oral arguments were held in January.

The Court’s majority opinion is fairly straightforward: the plain language of §3599 doesn’t say anything limiting its scope to federal proceedings. In fact, its reference to “or other clemency” has to mean state proceedings, because federal clemency is strictly executive.

You can’t go out and get a federal defender for a state clemency hearing, however, unless you already had that federal defender to start with. In this case, the federal defender was on the case for the habeas proceeding, and the clemency one came afterward, so it was okay. But if the order had been reversed, the Court wouldn’t have permitted it.

Justice Stevens wrote the majority decision, and got the other four more liberal Justices to go along with the whole thing. Stevens was a little muddled, though, as his reading of the statute was dramatically different from clause to clause, and thus found that parts of it only apply to federal capital defendants.

Chief Justice Roberts agreed with Stevens’ result, but not with his reasoning. Roberts agreed that the federal defenders ought to be permitted at subsequent state clemency hearings. But he did not think that the plain language of §3599 said so. Just because the federal statute didn’t come out and say it was limited to federal cases, that doesn’t mean that’s not what Congress intended. Roberts felt (and Harbison conceded) that “it is highly unlikely that Congress intended federal habeas petitioners to keep their federal counsel during subsequent state judicial proceedings.”

Roberts astutely noted, however, that §3599 does not open the door to subsequent judicial proceedings. That would be a problem, because post-habeas judicial proceedings are by definition new matters, and §3599 only mentions “subsequent stages” of the federal matter. Clemency hearings, however, are non-judicial requests for mercy from the governor or a panel. We would expect this distinction to be raised for sure in some future case.

Justice Thomas was true to form, refusing to look outside the words Congress used to seek its intent, as “our task is to apply the text, not to improve upon it,” even if that produces “very bad policy.” He therefore felt the §3599 necessarily included state clemency proceedings, because the statute applied to people challenging either state or federal convictions, and state clemency is the only clemency available for state convictions.

In fact, Thomas went beyond the majority’s reading. The majority (and Roberts) assumed that parts of §3599 must be limited to federal proceedings, at least in some respects. But under Thomas-style interpretation it must be read to provide federal counsel “to indigent defendants in every criminal action in which a defendant is charged with a crime which may be punishable by death.” (Emphasis his.)

Justices Scalia and Alito were the only holdouts, finding that Congress was only talking about federal proceedings. After pointing out the obvious befuddlement of Stevens’ argument (as one would expect Scalia to do), they pointed out that “Section 3599 was enacted as part of a bill that created a new federal capital offense, and it is perfectly reasonable to assume that a federal statute, providing federally funded counsel, applies in federal proceedings only, even where the statute contains no such express limitation.” (Emphasis Scalia’s.)

As to the “or other clemency” on which the majority hung its hat, Scalia pointed out that the very congressional history which the majority felt was important “defeats the inference the Court wishes to draw.” The phrase “or other clemency” clearly did not imply or contemplate state proceedings, but was simply and unquestionably superfluous.

For 16 years, German police have been hunting a fiendish serial killer. Every time they have an unsolved crime, the DNA of an unknown woman has been found at the scene. This phantom killer baffled police with her ability to commit totally unrelated murders without any evidence (apart from traces of her DNA) tying them together.

And when we say “unrelated,” we mean it. The DNA was found on documents at an arson scene, a cop killing, and dozens of other kinds of murders unconnected by geography, motive, means or victim.

Dubbing her “the phantom of Heilbronn,” the cops focused at least 40 investigations in Germany and Austria on identifying this “woman without a face.” When her DNA was found at the scene of a murdered policewoman, a 300,000 (about $375,000) reward was offered for information leading to her arrest.

It turns out, however, that all those unrelated crime scenes DID have something in common, apart from the mystery woman’s DNA. But in all those 16 years, nobody put two and two together.

What did they have in common? The DNA kits used by the cops themselves.

Yup, the swabs used to collect the DNA samples were contaminated. A female worker at the manufacturer apparently wasn’t working under completely sterile conditions, and her DNA was getting on the Q-Tips. As usual, the evidence that made no sense was wrong, and the simplest explanation was the right one.

So the police spent 16 years thinking that her DNA was the DNA of the killer. And instead of focusing on evidence that would have solved these crimes, they followed a wild goose chase that has left nothing but injustice. DNA is the wonder evidence of our time, so when it pointed the way the cops jumped at that conclusion.

Yet another reason why DNA evidence isn’t necessarily as damning as people might think.