criminal law

Andrew Cohen, in a blog for The Atlantic, argues that the U.S. Supreme Court's unanimous decision to reject "a claim by a convicted murderer who argued that she was denied her Sixth Amendment right to the 'effective assistance of counsel' because her lawyer counseled her to reject a manslaughter plea deal without first adequately investigating the facts of her case" turns the constitutional right to counsel into a right without a remedy.  Cohen expounds: "Your lawyer may have violated ethical rules; he may have failed to timely consult with other attorneys; he may have not adequately investigated your case; he may have given you bad advice that leads you to withdraw a guilty plea. And yet the legal standards imposed by the Supreme Court declare that you still aren't entitled to any meaningful relief by the courts. In law school, they call this 'a right without a remedy.' In real life, it's called injustice."

The Washington Post reports on a study done by liberal group Center for American Progress of "seven state supreme court elections in which spending exceeded $3 million for the first time between 2000 and 2007. CAP then compared rulings in the five years before and after those elections." The group found a correlation between that increased campaign spending, including by outside groups, with an increase by pro-prosecution, anti-criminal defendant rulings by state supreme courts. "Judges are supposed to base decisions on the law and the facts before them, not what voters want," The Washington Post wrote. "But as campaign spending continues to grow, pressure to avoid rulings that would play poorly in a 30-second ad continues to mount."

The Washington Post reports that a defendant in a terrorism case has been informed by the U.S. Department of Justice that federal prosecutors want to use evidence generated from warrantless surveillance against him. The case is expect to generate a constitutional challenge. The case also could generated a U.S. Supreme Court test case. The Supreme Court rejected prior challenges to warrantless surveillance because the "lawyers, journalists and human rights organizations who brought the suit could not prove they had been caught up in the surveillance. As a result, they did not have legal standing to challenge the constitutionality," The Washington Post also reports.

The New York Times' Jim Dwyer makes the point that confessions, but not entire interrogiations, are recorded in New York. But it's documenting entire interrogations that could stop people being wrongfully convicted after they give false confessions. Dwyer writes: "They’ve been recording confessions for years — true confessions, false confessions, they pretty much all look the same. But after so many people who confessed were proven innocent with DNA tests, we now know that it’s not the confession part that tells you whether to believe someone — it’s that first 12 hours in custody, or whatever it was before the camera went on, that tells you how he or she got to 'I did it.'" Cops can feed details to innocent suspects that only the murderer would know. Then the innocent suspects feed it back to them.

The New York Times reported that the U.S. Department of Justice is contemplating entering a deferred-prosecution agreement with JPMorgan for the Wall Street bank allegedly turning a blind eye to Bernie Madoff's Ponzi scheme. There is no record of any other investment bank entering such an agreement to resolve criminal charges, The Times also reported.

The consequences of bringing criminal charges against JPMorgan is potential harm to the financial markets. Is JPMorgan not just too big to fail but too big to indict? But U.S. Attorney Preet Bharara argues '"I don’t think anyone is too big to indict — no one is too big to jail,”' The Times also reported.

JPMorgan was Madoff's primary bank.

New York Times reporter James Risen has asked the Fourth Circuit to put on hold its ruling denying that a reporters privilege applies in a criminal case in which he could be forced to testify, Politico reports. Meanwhile, Risen will seek for the U.S. Supreme Court to take up the issue.

The underlying criminal case involves former CIA officer Jeffrey Sterling, who "has been indicted for leaking Risen information about a CIA operation to provide Iran with flawed nuclear designs as part of an effort to set back that country's alleged nuclear weapons program," according to Politico.

Risen has vowed to go to jail before revealing who his source was.
 

The Associated Press has this primer on everything you need to know about elder abuse, including that the abuse rarely results in criminal proseuctions because of the stereotype that their abuse is tough to prove and that older people make poor witnesses.

A couple highlights:

* By 2050, there will be more old people on earth than children for the first time in history;

* the most common abusers of the elderly are family members or friends;

* and "even in the few countries where elder abuse is a crime, cases are seldom prosecuted. One reason is that stereotypes cast elders as lousy witnesses and their abuse as tough to prove."

The New York Times' Charlie Savage reports: "Five years after Congress authorized a sweeping warrantless surveillance program, the Justice Department is setting up a potential Supreme Court test of whether it is constitutional by notifying a criminal defendant — for the first time — that evidence against him derived from the eavesdropping, according to officials." The disclosure will be made after an internal debate within the DOJ on wheterh such disclosure is legally necessary.

The Washington Post editorializes that children, even teenagers, should not be held in the adult criminal justice system. Among other reasons, incarceration does little to prevent minors from committing crimes again, minors are the most likely to be sexually abused by other inmates, and "teenagers are not fully developed; studies have shown that their brains aren’t as capable of moral reasoning and impulse control as adults in their early or mid-20s," The Post argues.

The trial judge who sentenced former Pennsylvania Supreme Court Justice Joan Orie Melvin to send apologies written on her photo to every other judge in Pennsylvania won't rule if she violated her probation for not sending those mea culpas just yet. The Associated Press reported the trial judge will wait until the intermediate appellate court rules. Orie Melvin's lawyers argued sending the apologies before her appeal is through would violate her Fifth Amendment right against self-incrimination. She was convicted of misusing the resources of her chamber on her judicial campaigns.

When Orie Melvin was sentenced for politicial corruption, the judge fashioned an unusual sentence:

* three years of house arrest;

* orders to send a picture of herself with an apology written on it to every member of the Pennsylvania judiciary;

* orders to send letters of apology to every member of the staff of her sister, a former state senator also convicted of using taxpayer resources on political campaigns;

* orders to send apologies to every member of her staff ordered to conduct political work even though it is not allowed under the law for government employees to do so;

* orders to send an apology to every member of her family;

* orders to serve in a soup kitchen three times a week, pay a $55,000 fine, and to not use the honorific of justice for the three years she will be on house arrest and for the two years she will be on probation.