Friday, April 24, 2015

Retroactive Application of Miller v. Alabama to Eliminate Life Sentences Imposed on Juveniles

In 2012, the Supreme Court granted certiorari to hear Miller v. Alabama, which involved two 14-year-old boys who were convicted of murder during an attempted robbery. The state court allowed the juveniles to be tried as adults. As a result, at 14-years-old, they were sentenced to life imprisonment with no chance of parole due to mandatory sentencing guidelines, which did not allow the judge to consider any factors related to the juvenile’s life. In evaluating the state’s decision, the Supreme Court ruled that life without parole for juveniles violated the Eighth Amendment, which prohibits cruel and unusual punishment, when mitigating factors are not considered in the sentencing. The judge writing for the majority stated:

Tuesday, April 21, 2015

Skype and the Right to Confrontation

On February 23, 2015, the petition for certiorari was denied in the case of New Mexico v. Schwartz.  What the Court failed to realize by denying this petition, is that defendants all over the nation will not get the full protection the United States Constitution requires.  As technological advances increase, our use of technology in the courtroom increases as well.  From computer monitors to email to video testimony, technology has a significant impact on the way cases are handled in the courtroom.  The ease of technology, as well as its accessibility, makes it an ever-growing issue when applied the Constitution – issues the Framers never could have imagined.[1]  In New Mexico v. Schwartz, the defendant argues that by allowing four witnesses to testify via Skype, his 6th Amendment confrontation clause rights were violated.

In this case, Martha McEachin moved from Los Angeles to Albuquerque in March 2008. She had only been living with the defendant for a month and a half when she went missing.  In May 2008, a decomposed body was found wrapped in an air mattress with sheets in an alley about 500 feet from the Defendant’s apartment.  A two-year investigation ensued and the defendant was charged with McEachin’s murder.

At the trial, four of the State’s witnesses testified using Skype.  The defendant argues that this use of video testimony violated his 6th Amendment rights.  The Confrontation Clause states that in a criminal prosecution the defendant has the right to be confronted with the witnesses against him.  The defendant argues that video testimony via Skype does not satisfy this right.  The lower court explains that the right the Confrontation Clause gives is a guaranteed face-to-face meeting with the witnesses who are appearing before the jury.  There may be exceptions to this right; however, they must be narrowly tailored to include situations that are necessary to further an important public policy.  Without a particularized showing of necessity, the right of confrontation stands.  The court goes on to explain that mere inconvenience for a witness is not sufficient grounds to violate this face-to-face right.  The court believes that the state did not show necessity for the use of video testimony, and therefore reversed the defendant’s conviction.

The outcome of this case, however, was not ideal.  If this case had made it to the Supreme Court, the question of how to determine when video testimony via Skype is appropriate would have been determined.  Practitioners and judges are now left with an open-ended question of when this type of testimony does or does not violate the Confrontation Clause.  While an argument can be made for either side, concrete criteria to protect defendants should be implemented.  With the fast rate of growing technological advances, this is not the last time the Supreme Court will be presented with this particular issue.  Right now the best a judge can do is balance the interest of the State with the rights of the defendant.  It seems this is a losing battle either way.

Kelsey Edenzon
Staffer, Criminal Law Practitioner

[1] Jamie Walker and Laura Carlsen, “Can I Testify via Skype?” Using Videoconferencing Technology to Enhance Remote Witness Testimony, NWSidebar (June 11, 2014).

Friday, April 17, 2015

Judicial Override in Alabama

Judicial override is a concept that has been in place since the late 1970s. Its a permissive doctrine that gives state trial judges the option to override a jurys sentencing determination and institute a sentence the judge believes is more suitable. In Alabama, judicial override has been used frequently to override jury verdicts of life without parole for the death penalty. The Supreme Court will soon decide whether to grant certiorari on the question of whether Alabamas use of the judicial override option violates a defendants Sixth Amendment right to a jury as well as the Eighth Amendments prohibitions on arbitrary and capricious death sentences and cruel and unusual punishment.

Tuesday, April 14, 2015

SCOTUS Watch: Glossip v. Gross

Glossip v. Gross, Docket No. 14-7955,
on Appeal from the Tenth Circuit

“From this day forward, I shall no longer tinker with the machinery of death.  For more than twenty years I have endeavored—indeed.  I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.  Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation is eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
-          Justice Harry Blackmun

In the current term of the United States Supreme Court, the Justices are set to decide a case which almost literally questions the “machinery of death” and the “death penalty experiment.”   

Friday, April 10, 2015

The Death Penalty: Academia v. Public Opinion

In the past decade or so, the subject of capital punishment has spurred many academics to heated opinions arguing for and against the death penalty.  Some opponents of capital punishment have highlighted the world trend of abolishing the death penalty, noting that China, Iran, Pakistan, Saudi Arabia, and the United States carry out most of the known executions around the world, and that “the number of countries that still allow the death penalty has been dwindling. 

Teen Courts: A Call for Accountability

Teen courts, also known as youth courts or peer courts, are not new phenomena.  Since the 1970s, over 800 teen courts have popped up around the nation; the majority were created in response to the United States Justice Department's Office of Juvenile Justice and Delinquency Prevention’s (OJJDP) push for alternative juvenile programs in the 1990s.  While the court itself varies between four models, discussed below, jurisdictions across the country use teen courts to address the same types of offenders and crimes: first-time offenders, aged 11-17, who have been accused of misdemeanors such as theft, vandalism, underage drinking, disorderly conduct, assault, possession of marijuana, tobacco violations, and curfew violations.  Because the teen court is offered as an alternative to going through the juvenile justice system, the accused typically have to admit guilt prior to admittance to the program.  

Tuesday, April 7, 2015

Protect the Children or Protect the Defendant?

In October 2014, the Supreme Court agreed to hear an appeal of the Ohio Supreme Court’s decision, in State v. Clark, to overturn a man’s convictions for child abuse.  The Court will have to decide two issues in the case: whether a mandatory reporter of child abuse acts as an agent of law enforcement for the purposes of the confrontation clause, and whether admission at trial of a child’s hearsay statements made to his teachers violates a defendant’s sixth amendment right to confront the witnesses against him.

The case arose after a preschool teacher noticed whip-like marks and other injuries on one of her three-year-old students at school.  After asking the three-year old some questions about the marks, she got the other teachers involved, and they came to suspect that the child had been abused.  Some of the child’s answers to the teachers implicated his mother’s boyfriend, Mr. Clark, as the abuser.  One of the teachers, in accordance with her mandatory duty to report child abuse, called the child abuse hotline and child protective services investigated the matter.  Mr. Clark was later arrested for child abuse and at trial, the court found the three-year old incompetent to testify, but permitted his teachers to testify to the child’s statements.  Mr. Clark was convicted of four counts of felonious assault, two counts of child endangering resulting in serious physical harm, and two counts of domestic violence, and was sentenced to 28 years in prison.

Monday, April 6, 2015

Privacy, Technology, and the Fourth Amendment: "The Fourth Amendment in the Digital Age" Master Post

The following blog post contains all of the guest posts that the Criminal Law Practitioner published in anticipation of "The Fourth Amendment in the Digital Age" symposium.

Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Wednesday, April 1, 2015

Uncovering Secret Surveillance

It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public.  The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country.  The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays.  In this sort of environment, what’s a diligent criminal defense attorney to do?