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Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that.  Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.

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The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.

A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.

manatory minimums

On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums.  In doing so, he “explains why we treat some turkeys better than most low-level offenders.”

In case you didn’t have a chance to read this when it first came out, we bring to you another post by Professor Bennett L. Gershman, titled On the Death of Raynette Turner.

Prof. Gershman introduces his piece by saying,

The fifth death of a woman of color in US police custody in July. An unspeakable tragedy by itself, but arguably symbolic of the legal profession’s failure to examine the factual and logical foundation for our system of modern policing and mass incarceration.

POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School

According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.

It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.

How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).

According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).

According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:

  • Protection against any danger arising out of military operations.
  • Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
  • Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
  • Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
  • Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited.  Any act, which might result into suffering of civilians, is prohibited.
  • Attack towards the civilians by the way of reprisal is prohibited.
  • Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.

Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.

Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

In his most recent Huffington Post blog post titled Did the Rosenberg Prosecutors Suborn Perjury?, Prof. Gershman raises a question about prosecutors suborning perjury based on the recently released grand jury testimony of David Greenglas, Ethel Rosenberg’s brother and prosecution’s witness. It is a fascinating read – check it out! 

POST WRITTEN BY: Jessica Mlinar (’16), J.D. Pace Law School

Northern Ireland passed a law on June 1, 2015 making “buying sex” a criminal activity. “If convicted, a person could be fined, sentenced to a maximum of one year’s imprisonment, or both. It remains an offense to keep or manage a brothel, but the new law removes criminality from soliciting in the street or public place.” The efforts stem from the idea that the correct way to minimize prostitution and other activities of that nature is to decrease the demand for them rather than punish the prostitute. Andrea Matolcsi, a spokeswoman for Equality Now, which is an international women’s rights group, wholeheartedly supports these efforts. In her opinion, “the legalization and decriminalization approach is not benefiting anyone.”

By the same token, other countries believe that the best approach is to legalize both the selling and buying of sex, largely due to the fear that passing laws turning purchasing sex into a criminal activity will cause more harm than good. Buying sex is not a novel idea; it has been around for decades and any controversial move may consequently drive the activity underground. Additionally, it is feared that  strict laws outlawing these activities will increase violence against women.One sex worker, Katie McGrew, explains a concern that this new law will lead to “situations where more women are competing for fewer clients [which] has dangerous consequences, including charging less, offering services they wouldn’t have previously, and agreeing to unsafe sex.”

Further, the migration of the newly criminalized activity presents another problem. The Immigrant Council of Ireland stated that there was no doubt that men would “make the short journey over the border in order to escape the law.” Some believe that this movement has already begun and is evidenced by the increase in advertisements in the over-the-border areas.

Nonetheless, other countries such as France and Irish Republic are considering enacting similar legislation that criminalizes the conduct of a client, while protecting women who are in the business of providing sex. “ The Nordic Model” (social and economic model of the Nordic countries which makes purchasing sex a criminal activity) has been adopted in Canadaand Sweden, as well as Norway. Only time will tell which one of the two mainstream routes proves to be more successful.

In my view, this worldwide issue does not have a single solution. It is clear that authorities themselves struggle to figure out which approach works the best. This is because no one model has proven to be one hundred percent effective. Nonetheless, I believe that adopting the Nordic model is the right way to go. Passing a law criminalizing this undesirable activity shows just how important it is for Northern Ireland to manage and limit prostitution, or rather criminalize purchasing sexual services. Decriminalization can often be perceived as giving up, rather than as a way of taking control and fighting harder.

Related Readings:

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On July 1, 2015, the N.Y. Court of Appeals issued a 5-1 ruling regarding a prosecutor’s comments on summation that may overstate the probative value of DNA evidence presented at trial and defense counsel’s obligation to object to such comments. People v. Wright, No. 109, 2015 N.Y. Slip Op. 05621 (July 1, 2015).

The case involved the murder and alleged rape of a woman in Rochester, N.Y., who was found dead of strangulation by means of a ligature, shortly after she had sexual intercourse. A Monroe County prosecutor pursued charges of intentional murder, felony murder, and rape. Defense counsel admitted in opening statement that defendant had intercourse with the victim around the time in question, but argued that this intercourse was consensual. Counsel also vigorously opposed the murder charges.

In its case in chief, the prosecution called three expert witnesses who testified about the potential scientific value in general of the different methods of DNA testing they employed. The experts also carefully explained the limited probative value that could be deduced from their analysis of the ligature and items relating to the victim’s sexual intercourse.

The jury rejected the rape and felony murder charges, but convicted the defendant of intentional murder, pursuant to Penal Law § 125.25(1). The trial court imposed a sentence of 25 years to life. By a 3-2 vote, the Appellate Division affirmed. People v. Wright, 982 N.Y.S. 2d 219, 115  A.D. 3d 1257 (App. Div. 4th Dep’t 2014).

In the July 1 ruling, all six Court of Appeals judges who participated in the case (including especially dissenting Judge Eugene Pigott) credited defense counsel for effectively eliciting from the prosecution’s expert witnesses during cross-examination the limited probative value their testimony provided regarding identifying the defendant as the person possibly responsible for the murder. The appeal therefore focused decisively on statements made by the prosecution on summation and defense counsel’s response (or lack thereof) to such comments.

Upon review of the record, the Court’s majority held that during summation the prosecution prejudicially overstated the probative value of the DNA evidence its own witnesses provided relating to the circumstances of the case. The Court identified several instances in which the prosecutor told the jury that expert testimony conclusively showed that defendant’s DNA was a match for that found on the ligature. The Court noted that these comments contravened what the experts had in fact stated: that DNA analysis was only able to show that the defendant’s DNA could not be excluded from that found on the ligature.

The Court determined that the prosecutor’s “apparent intent was to persuade the jury that the DNA established that defendant had committed the rape and murder, when the evidence did not, and could not, dispositively establish his guilt.” The Court further held that defense counsel provided ineffective assistance because it could not identify any tactical reason to excuse counsel’s “multiple failures” to object to the prosecutor’s “numerous misrepresentations of the evidence.”

In support of its ruling, the majority noted the significant impact that DNA evidence may have on a jury’s deliberations. It further concluded that aside from the expert testimony, evidence produced at trial was insufficient to support defendant’s conviction for second degree murder. Accordingly, the Court reversed the Appellate Division and remanded the case for a new trial.

We are very excited to feature Prof. Michael B. Mushlin’s latest law review article in which he compares Kafka’s fictitious world of punishment to the current state of solitary confinement in the United States. Prof. Mushlin has extensive experience in the field of prisoner’s rights work and specific issues such as solitary confinement.

POST WRITTEN BY:  Erica Danielsen (’16), J.D. Pace Law School

Franz Kafka lived in the Austria-Hungarian empire, in what is now Czech Republic, and wrote fiction stories in German during the 20th century. In 1914 Kafka wrote In the Penal Colony, a story describing a torture and execution device used in a mythical prison’s operation system. The machine would carve the sentence of a condemned prisoner on his skin before killing him over the course of twelve hours. The use of this machine only came to an end when a “Traveler,” an outsider invited to the penal colony, condemned its use by expressing, “I am opposed to this procedure.” Without the Traveler having been allowed to enter and observe what occurred in the penal colony no change to the system would have taken place.

For the 100th Anniversary of Kafka’s work, Prof. Muslin wrote, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons. The article, which is published in the Oregon Law Review, compares the use of the penal colony’s machine to the current use of solitary confinement in American prisons. Both the penal colony’s machine and solitary confinement inflict great psychological and physical pain on the people subjected to it. Additionally, both are seen as essential to the operation of the prison system yet neither would see change without an outside perspective into its use.

This article first recounts Kafka’s story In the Penal Colony and describes how Kafka’s professional life as an attorney might have influenced his story. It then provides a description of the American prison system focusing on two important aspects: the massive use of solitary confinement and the lack of meaningful oversight. The article is then brought together with a discussion of how Kafka’s profound insights, so powerfully set out in In the Penal Colony, can help society today understand why prison doors must be opened to outside scrutiny and why the rampant use of solitary confinement in the United States must end just as the penal colony’s machine was put to an end.

Related Readings:

In response to the growing controversy over detaining arrestees simply because they do not have the money to post bail, NYC has acted to eliminate bail for some low level offenders. For more details, see Rick Rojas, New York City Introduces Bail Reform Plan for Low-Level Offenders, New York Times (Jul 8, 2015).

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