Results tagged “Criminal Law”

By Associate Visiting Clinical Professor Lara Bazelon

In the Supreme Court case of Metrish v. Lancaster, the state appeals the finding of the Sixth Circuit's grant of habeas relief to Burt Lancaster (no relation to the actor), who was twice tried and found guilty for the murder of his girlfriend. In the first trial, Lancaster raised both insanity and diminished capacity defenses. The jury rejected both, but because of an unrelated constitutional error, the conviction was set aside.

At the second trial, Lancaster again sought to raise the insanity defense. In the interim, however, the Michigan Supreme Court abolished the defense. That decision was applied to Lancaster retroactively. Lancaster was once again convicted and sentenced to life in prison.

After exhausting his state court appeals, Lancaster filed a writ of habeas corpus in federal court. Lancaster lost in the district court, but prevailed before a divided panel of Sixth Circuit judges, which granted the writ after finding that Lancaster's due process rights were violated.

To find in Lancaster's favor, the panel had to clear two exceptionally high hurdles erected by the United States Supreme Court's retroactivity and habeas jurisprudence. On the retroactivity front, the court of appeals had to find that the Michigan courts' abolition of the diminished capacity defense was "unexpected and indefensible." On the habeas front, the bar was even higher: the Sixth Circuit had to find that the Michigan courts' decision to apply retroactively to Lancaster its "unexpected and indefensible" decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" among reasonable jurists.

You may be wondering exactly what kind of habeas petitioner could possibly prevail under either standard, much less both. I'm not sure I know the answer, but I'm pretty sure it isn't Lancaster.

The dissenting judge on the Sixth Circuit panel laid bare the shaky foundations of her colleagues' opinion. Simply put, the majority could not overcome a standard of review so highly deferential that it allowed federal judges to grant relief to state court petitioners only in cases of "extreme malfunctions in the states' criminal justice systems."

My take: This dissent, coupled with SCOTUS' decision to grant cert, signals swift reversal.

Professor Alexandra Natapoff was honored with the 2013 Law and Society Association Article Prize for her law review article "Misdemeanors," which was published by the Southern California Law Review.

Abstract:

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., "criminalized," with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system's dynamics and dysfunctions.

By Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

By Professor Laurie Levenson and Courtnee Draper '14

This op-ed originally appeared in the Friday, Feb. 15, 2013 edition of the Los Angeles and San Francisco Daily Journal.

As Thomas Jefferson proclaimed, "The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." To accomplish this goal, it is imperative that we have a diversified bench. Recent national studies show that minority groups lag far behind in their confidence in our judicial system. While 62 percent of white voters view the courts as fair and impartial, only 55 percent of non-whites feel the same. In fact, 85 percent of some minority groups believe there are two systems of justice: one for the rich and powerful, and one for everyone else.

Overall, judges of color account for just 12 percent of all state court judges chosen since 2000. In California, we have a long way to go until our bench reflects the population that it serves. For example, Asians comprise 15 percent of the state's population; however, they represent only 5 percent of all judges. A more concerted effort has been made to appoint African-Americans to the California bench. African-Americans constitute 6 percent of the state population, and they too represent only 5 percent of the current judges.

The greatest focus has been on the appointment of Latino judges. Since January 2011, 15 new Latino judges have been appointed to the bench, increasing the representation of Latino judges to 8.2 percent. Yet in a state where 37.6 percent of the population is Latino, there is still a long way to go before the bench is diverse enough that Latinos are anything other than "token" appointees.

By Clinical Professor Samantha Buckingham

Senator Durbin (D-Ill.) held the first-ever U.S. Senate hearing on the ending the "school-to-prison pipeline." Senator Durbin is the chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights. The Senator defined the pipeline as a "gateway" out of school and into the criminal justice system that functions to rob children of their "fundamental right to education." In essence, many children with cases in juvenile delinquency court are there because of issues that arose in public school; instead of sending children to the principal's office for misbehavior, students are now removed from the educational environment entirely. Statistics reveal that students of color, students with disabilities, and LGBT youth bear the brunt of school disciplinary measures that funnel them into the delinquency system. According to the most recent date from the Office for Civil Rights, more than three million students were suspended from school at least once during the 2009-2010 school year. Seventy percent of the students arrested for an event arising at school were Black and Hispanic. Unfortunately, Black males who have diagnosed disabilities are the group most often suspended.

In my experience both as a public defender and as a juvenile advocate through my work as the co-director of the Juvenile Justice Clinic at Loyola's Center for Juvenile Law and Policy, I have represented many children who have been arrested at school. My testimony to Congress described how the school to prison pipeline impacted three of the clients I represented through my work in the juvenile justice clinic. Law students were involved in each one of these cases, researching and writing motions, meeting with the clients, investigating incidents at the schools, and arguing before the court. The stories I chose to share with the committee demonstrate a few important concerns (though not every concern) about the school-to-prison pipeline: 1) children are punished twice, 2) timing is important to intervention on behalf of children with special education needs, and 3) increased police presence and increased funneling of children to delinquency courts for incidents occurring at public school can have a negative, stigmatizing effect.

Reporting on the legal system without a law degree can be challenging. A team of Loyola Law School professors aimed to fix that by writing The Journalist's Guide to American Law. The book, published by Routledge and released on Monday, Dec. 10, serves as an essential reference for journalists whose coverage area includes the law. The authors are Professors John Nockleby, Laurie Levenson, Karl Manheim, Jay Dougherty, Dean Victor Gold, Allan Ides and Daniel Martin.

From the publisher:

How do you report on the latest sensational criminal trial or newest controversial legislation without a basic understanding of how the American legal system works? This easy-to-use guidebook offers an overview of American law that should be found on the desk of any journalism student or professional journalist. It provides an overview of major legal principles and issues in simple terms for journalists who cover any aspect of the legal system. The Guide can be used in two ways: first, as a sit-down read that gives an overview of American law; and second, as a reference that can be used every day under deadline pressure for a specific purpose. Every feature of the book is designed to serve both functions. Thus, the book's organization captures both the birds-eye view of a subject; and, alternatively, permits a quick review of a given section when the professional needs to understand a distinct concept. The areas covered range from professional concerns such as the First Amendment, cameras in the courtroom, Sunshine laws, and access to government documents to general legal matters such as the institutions of law and lawmaking function of the judiciary; core constitutional principles such as separation of powers and judicial review; and how courts function. The book is ideal for use in general newswriting and reporting courses, particularly those with a focus on legal or court reporting, and may also be used as a supplementary text in Media Law courses.

Professor Laurie Levenson was quoted in a Guernica Magazine story by Casey Michel titled, "California's Death Penalty Decision," published on November 5.

Levenson on what separates this proposition from previous attempts to repeal the death penalty:

"This round's not really about a morality issue--it's a cost issue," says Levenson. "The pitch this time [from the repeal camp] is that when we can't fund our schools, can't fund our highways, why are we funding this program that already has these exorbitant costs?"

To support Levenson's argument, Michel references Adjunct Professor Paula Mitchell's 2011 report on death penalty costs in California.

Michel writes:

"A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole-as Prop 34 would accomplish-would save the state $170 million per year, tallied to $5 billion over the next two decades."

Levenson also spoke about proposition's chances of passing:

"I don't know what's going to happen, but this is the most traction I've seen the death penalty repeal get in decades," Levenson noted. "We can't shorten the process. We can't take shortcuts. There's too much at stake."

Read the full article here.

Professor Laurie Levenson assessed the effectiveness of the death penalty in a recent story about Californai's Prop. 34, which would eliminate the death penalty in the state.

"There is no showing the death penalty does anything good. It's not a deterrent, all it does is suck in money and you would hope the public would say, 'we can we do better with that money,'" she siad.

She continued: "I think it is an emotional response. Emotionally, some people say I think killers have to die, and emotionally some people say I don't want to be killing in the name of the state. Often times that is what the debate comes down to."

Read the complete story.

Law review articles by Associate Professors Doug NeJaime and Priscilla A. Ocen appear in the California Law Review issue published in October 2012.

NeJaime's "Marriage Inequality: Same-Sex Relationships, Religious Exemptions and the Production of Sexual Orientation Discrimination" (100 Cal. L. Rev. 1169) looks at the conflict between marriage equality and religious liberty. Ocen's "Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners" (100 Cal. L. Rev. 1239) provides a critical assessment of the practice of shackling female prisoners who are in labor, and the historical undertones of the practice.

By Professor Jeffery Atik

The IP provisions of the Trans-Pacific Partnership (TPP), a regional trade agreement involving the United States and 10 other Pacific Rim nations, are not merely 'TRIPS Plus;' they are also 'WIPO Plus.'

Two major multilateral copyright treaties came into force following the establishment of TRIPS: the 1996 WIPO Copyright Treaty and the 1996 WIPO Performances and Phonograms Treaty. Together, these treaties expand protection to authors and performers in the digital environment. As WIPO products, these two treaties, known together as the WIPO Internet Treaties, reflect fairly broad international consensus, in contrast to the more contentious 'TRIPS Plus' norms promoted by the United States and Europe in various bilateral and regional settings. The now abandoned Anti-Counterfeiting Trade Agreement (ACTA) was an attempt to construct TRIPS Plus broadly, outside of the WTO.

The WIPO Internet Treaties establish new categories of unlawful activity, but they do not require the imposition of criminal penalties on infringers. For example, Article 11 of the WIPO Copyright Treaty requires signatories to "provide adequate legal protection and effective legal remedies" against persons who circumvent technological measures for the protection of copyrighted works. While the WIPO Copyright Treaty does not prevent a signatory from imposing criminal liability in these cases, neither does it mandate it.

By Professor Jeffery Atik

True, we know little about the current form of the draft Trans-Pacific Partnership -- a regional trade agreement to involve the United States and ten other countries (Australia, Brunei Darussalam, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam) -- but we can be certain that TPP will include an Intellectual Property chapter with a battery of TRIPS Plus features. We can get a hint at the IP content of an eventual TPP -- or at least at the negotiation goals of the United States -- by examining the IP provisions of recent U.S. Free Trade Agreements such as those concluded with Peru, Panama and South Korea. Or we could look back at the recently concluded ACTA, now abandoned by the European Union, one of ACTA's principal sponsors. Or we can look at the text of a leaked draft that may or may not be accurate. So let's apply all three approaches to create an amalgam for conversational purposes -- and explore the criminalization mandates found in the leaked TPP draft.

Article 15.1 of the leaked TPP draft echoes TRIPS Article 61: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful counterfeiting or copyright or related rights piracy on a commercial scale." Ignore for a moment the insertion of the phrase "or related rights." The TPP leaked draft tracks the first sentence of TRIPS Article 61 word-for-word, including the problematic "on a commercial scale" limitation. It also replicates the language found in the recent FTA entered into with South Korea. 

By Professor Jeffery Atik

Among the many changes to the international IP landscape wrought by the WTO's TRIPS Agreement was the unprecedented mandate to impose criminal liability for the most egregious acts of trademark and copyright infringement. Criminal sanctions add to civil and administrative remedies to create a climate of observation of IP rights throughout the WTO space. In anticipation of its joining the WTO -- and in response to pressure from the United States -- China amended its domestic criminal law to provide for the possibility of imprisonment or fines in certain instances of IP infringement as a complement to civil and administrative remedies. Nonetheless, there remains continuing concern held by IP holders about the effectiveness of China's IP enforcement. Much of the current 'TRIPS-plus' program (including the discarded ACTA and the emerging Trans-Pacific Partnership [TPP]) is intended to indirectly influence China with regard to IP enforcement.

In 2007, the U.S. brought a three-prong challenge to China's IP system within the WTO dispute settlement system. The central part of the dispute involved a U.S. assertion that China failed to give full effect to the TRIPS criminalization mandate. Article 61 of TRIPS obligates WTO members to provide "for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale."

By Professor Laurie Levenson

[This article was originally posted in the Los Angeles Daily Journal.]

The fundamental rules of venue are not that difficult. The government must prosecute an offense in a district where the crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., Amend. VI; Fed. R. Crim. P. 18. Generally, venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3234 - 3244. If a crime takes place in multiple venues, the prosecutor usually has discretion as to where to charge the crime.

Despite these basic rules, interesting venue issues arise all the time. In the past year, there have been several cases addressing venue challenges in federal court. For example, in United States v. Gonzalez, 2012 U.S. App. LEXIS 13149 (9th Cir. 2012), the Ninth Circuit once again ruled on a challenge to venue in a conspiracy case. Circuit Judge Richard C. Tallman began his opinion by noting that "[d]etermining where an offense occurred can be quite tricky - particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts." Id. at *1.

In Gonzalez, defendant was charged with conspiring to sell drugs. During the alleged conspiracy, Gonzalez never set foot in the district where the crime was charged. Rather, venue was based upon two telephone calls to Gonzalez's cell number that a confidential informant ("CI") made at the direction of the Drug Enforcement Administration ("DEA"). Nothing in the stipulated facts indicated whether Gonzalez knew or suspected that the CI was calling from another district at the time of the calls. However, the Ninth Circuit panel held that it did not matter. Because the calls were used to negotiate the sale and delivery of drugs, venue was proper in the district from which the calls were made.

By Professor Alexandra Natapoff

Yesterday, people across America pleaded guilty to crimes they didn't commit. This isn't something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty. These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies--the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Read the full piece on Slate.

Laurie Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, wrote the following article titled, "Supreme Court's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges," that was published in Bloomberg's Criminal Law Reporter on Wed. April 25, 2012.

"It is a big year for U.S. Supreme Court cases. Health care, affirmative action, GPS devices, stripsearches--the court selected many of the hot-button issues to decide this term. Among the most important cases are Missouri v. Frye, 2012 BL 67235 (U.S. 3/21/2012), and Lafler v. Cooper, BL 67236 (U.S. 3/21/2012). In these opinions, the court recognized that plea bargaining lies at the heart of the way that the current criminal justice system operates. Thus, the court's decision to set standards for defense counsel's assistance during plea bargaining has the potential to dramatically affect how plea bargaining is handled in this country."

Read the full article.

By Professor Laurie Levenson

What do criminal law professors do in their spare time? Read legal thrillers, of course. This year, Charles "Chuck" Rosenberg, has given us a gem of a book and it will be particularly fun to read for those even vaguely familiar with some of the high-profile cases Los Angeles has hosted. It is a book that expertly provides an autopsy of what makes our criminal justice system tick.

Rosenberg is a survivor of the so-called Trials of the Century. He cut his teeth as a consultant for such prime time television shows as "L.A. Law," "The Practice," "Boston Legal" and "The Paper Chase." He sat through every moment of the O.J. Simpson trials (criminal and civil). He is an expert in law and popular culture, using his position as an adjunct professor to teach students how the arts mirror real life and how real life can start to mirror fiction.

In his first novel, "Death on a High Floor," Rosenberg takes a candid look at the mega-law firms today by using a most unusual literary vehicle -- an unsolved murder case. With tongue firmly planted in cheek, Rosenberg starts his work with the line, "I am a lifer." The "lifer" is not a person on death row (at least, not yet), but rather refers to Robert Tarza, a senior partner at a major law firm who has been accused of killing one of his fellow partners, Simon Rafer. Tarza may be a brilliant civil litigator, but he is an idiot of a client whose mistakes at the beginning of the investigation give the police much too much probable cause to believe he is the killer.

Nothing is ordinary about this case. Tarza picks a "kick-ass associate" named Jenna to be his counsel. There are many reasons she might not be the expected choice to lead one's murder defense. Start with the fact that she has never handled such a case. Add to it the fact that she had slept with the victim and lives with the defendant, and you have a most unusual attorney-client relationship. Jenna, in turn, has the good sense to dredge up the lifer, a seasoned defense lawyer who has played the field forever. He knows murder cases and he knows (often intimately) the judges who handle them. But, his life of experience also makes him jaded, leading him to spar with his client and Jenna over their approach to the case.

The book winds through the discovery of the murder, to the pretrial investigation, to the witness-by-witness description of the preliminary hearing. Jenna is much more than a pretty face. She is a lawyer who has natural instincts for how to work a courtroom. Preparation is key, but being able to read people is probably the most valuable courtroom skill that someone in her position could have.

"Death on a High Floor" is about much more than the twists and turns of solving a great murder thriller. It is about seeing the Los Angeles legal community for what it is. It is populated by different civilizations -- the law firms who rule from their high floors, while criminal prosecutors and defense lawyers toil in the trenches down below.

As richly described by Rosenberg, law firms are worlds to themselves. Minute-by-minute the lawyers are monitored, yet it is still impossible to know exactly what everyone is doing. Moreover, partners will literally "back stab" each other. Associates are banished to separate floors to toil until they can climb the ladder to join the partners' ranks. Money is on everyone's minds, and not just the kind that comes from billable hours.

The book presents us with familiar characters for our Los Angeles criminal justice system. The chief detective on the case, Lionel Spritz, could give the O.J. investigators a run for their money. The preliminary hearing judge is an amalgam of judges we have seen in real life high-profile cases -- they know they must struggle to maintain control over a high-profile case, yet still have enough flexibility to allow justice to prevail when uncontrollable things begin to occur. Rosenberg even gives us the "Blob" (his affectionate term for the media). The Blob is omnipresent, like vultures who lead other animals to the scene of a kill. Little do they know that they, too, are being used by those being preyed upon. Finally, there are the witnesses. Much like they did during the O.J. Simpson murder case, curious witnesses pop out of the woodwork to team up with the defense and prosecution.

Professor Alexandra Natapoff's recently posted article, "Misdemeanors" (Southern California Law Review, Vol. 85, 2012), was noted as "highly recommended" on Professor Lawrence Solum's Legal Theory Blog.

By Professor Laurie Levenson

Last week, the United States Supreme Court decided Maples v. Thomas, 565 U.S. ___ (2012). Technically, the case was about whether Cory Maples, who had been convicted of murder and sentenced to death, would be able to overcome a procedural hurdle in the federal habeas corpus laws and seek relief in federal court. The problem arose when Maples' pro bono lawyers from the prestigious law firm of Sullivan & Cromwell abandoned him, causing him to miss the deadline for appealing the denial of his state habeas corpus petition.

The Supreme Court unquestionably reached the right result when it ruled that there was cause for the procedural default and that Maples' lawyers' blunder should not undermine his ability to seek habeas relief. However, what was most interesting about the decision was not the technical legal analysis. It was the language Justice Ginsburg used to emphasize why the Court would be ruling the way it did.

KPCC's Madeleine Brand Show will be covering the first year out of prison for Obie Anthony, the client for whom Loyola's Project for the Innocent secured a release on Oct. 4 after working on his claims since 2008. Students, under the direction of Professor Laurie Levenson and post-graduate fellow Adam Grant, drafted habeas claims and interviewed witnesses. Most recently, students participated in a September evidentiary hearing.

The complete story is at KPCC.org.

By Seth Weiner, co-director, Loyola's Center for Restorative Justice

The Loyola Law School Center for Restorative Justice (CRJ) partnered with LAW Project Los Angeles (LPLA) to host an Expungement Clinic on the Loyola Law School Campus on Friday, Nov. 11.

The CRJ is founded on the belief that human harm caused by crime must be healed by a criminal justice system that is more restorative than punitive; that victims and survivors of crime, including offenders who were themselves victimized and others harmed by crime, can never be healed by merely punishing offenders. The CRJ exists to help bring about a shift from a punitive to a restorative paradigm of justice in our society. LPLA conducts outreach, education and advocacy to give people the tools they need to navigate their job search with dignity, determination and hope after suffering a criminal conviction. The LPLA is committed to the belief that communities that work are communities that thrive.

Each year in California, close to a million people are convicted of a crime. About 83% of these offenses are for misdemeanors and about 17% are for felonies. Literally, millions of people in California are likely to be in need of legal advocacy when the try to enter the workforce with a criminal conviction. Unfortunately, in the arena of criminal records and work, resources are limited. There are few places that people can receive free legal assistance from advocates who are trained and knowledgeable in the area of employment and criminal records. Additionally, criminal records can create a barrier for people in search of housing.