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Last week, Deputy Attorney General James M. Cole issued a memorandum to federal prosecutors advising them that they should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” As to cases in which such waivers had already been entered, the memorandum advises that federal  prosecutors should “decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”

The U.S. Supreme Court has not ruled on the validity of such waivers. The Court has clearly held, however, that the right to effective assistance of counsel applies to guilty pleas. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Following these holdings, every circuit court to address the validity of a waiver of the right to effective assistance of counsel – ten of twelve circuits – has upheld the waiver. United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998); United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Davila v. United States, 258 F.3d 448 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000); Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Interestingly, however, twelve state ethics opinions have held that insisting on such a waiver is unethical.  See, e.g., United States v. Kentucky Bar Ass’n, 2013-SC-000270-KB (Ky. Aug. 21, 2014), and cases cited in footnote 37 therein. In addition, in a 2013 113E Resolution, the American Bar Association declared its opposition to ineffective assistance of counsel (IAC) waivers, and in October 2012 the National Association Criminal Defense Lawyers (NACDL) has issued a formal opinion (12-02) finding it unethical for defense lawyers to participate in such waivers.

The DOJ policy is important because it is a break with the growing momentum of waiver by guilty plea:  it seems that over the years defendants have been asked to waive more and more rights as part of a plea bargain.  Ultimately, although problematic, many defendants are now required to waive the right to appeal or to appeal and collateral attack as part of a guilty plea.   The DOJ directive mark an important exception to these practices.

The DOJ policy memorandum is significant for another reason. In other jurisdictions, like the United Kingdom, internal prosecutorial procedures and policies are publicly available and provide some limitations on what would otherwise be unlimited prosecutorial discretion. This is an excellent way to create at least a presumption that the prosecution is behaving fairly.

Finally, there are those who wonder whether the prosecution (or the courts) can or should do more when confronted by deficient performance of defense counsel. See, e.g., Vanessa Merton, What Do You Do When You Meet a “Walking Violation of the Sixth Amendment” If You’re Trying to Put That Lawyer’s Client in Jail?69 Fordham L. Rev. 997 (2000). They are on the front lines, if you will; aside from the ethical obligation to report unethical conduct by other lawyers, prosecutors generally have no duty to protect a defendant from the ineffectiveness of his or her counsel. Thankfully, by virtue of the DOJ memorandum, federal prosecutors have accepted the duty not to participate in hiding these claims from review.

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

The Fourth Amendment’s protection against “unreasonable searches and seizures” requires the police to obtain a warrant prior to searching someone’s person, house, papers, or effects for evidence of a crime, subject to certain exceptions that courts have acknowledged. A major exception is that warrantless searches and seizures are constitutionally permissible when required by “exigent circumstances.” While this exception is well recognized, courts are frequently confronted with cases in which the scope of this exception is an issue.

In 2012, New York’s Second Department Appellate Division was confronted with an appeal in People v. Jenkins in which New York City police officers, while on patrol, heard gunshots coming from the rooftop of an apartment building. Upon entering the building, the officers observed a man holding a firearm who then fled into one of the apartments in the building, along with another man. When no occupant of the apartment responded to the officers’ request to open the apartment’s locked door, the officers entered after breaking down the door with a sledgehammer.

The officers’ forcible and warrantless entry into the apartment and seizure of the two men was, given the circumstances observed by the officers, justified under the exigent circumstances exception. At issue in the case was further action by the officers in seizing and searching a silver box in which they found the gun that had been fired, which they had not otherwise been able to find on either of the men or in plain view.

The Second Department, reversing the lower court’s suppression decision, held that the exigent circumstances that justified the officers’ entry into the apartment and seizure of the suspects extended as well to justify the search of the silver box.

In a unanimous opinion issued on October 16, 2014, the New York Court of Appeals reversed. The Court of Appeals noted that by the time the officers seized and searched the silver box, they had already handcuffed the men, so there was no danger that the defendant would destroy or dispose of the gun. Nor was there any urgency for further searches to protect the officers or any of the other occupants of the apartment against harm. Therefore, any search of the silver box would have required a warrant.

Source:

  • People v. Jenkins, 100 A.D.3d, 954 N.Y.S.2d 183 (App. Div. 2d Dep’t 2012), rev’d, 2014 Slip. Op. No. 148 (N.Y. Oct. 16, 2014).

On September 24, 2014 Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced in a press release her decision to open a second investigation in the Central African Republic (CAR). Pursuant to Arts. 13(a) and 14 of the Rome Statute, the transitional government of CAR referred its situation “regarding crimes allegedly committed on CAR territory since 1 August 2012″ to the Office of the Prosecutor (OTP). Once such a State Party referral is received, the Prosecutor opens a preliminary examination, according to Article 18, to assess whether the OTP can proceed with an investigation. In accordance with article 53(1), the Prosecutor’s office conducted an independent preliminary examination and concluded that

[t]he information available provides a reasonable basis to believe that both the Séléka and the anti-balaka groups have committed crimes against humanity and war crimes including murder, rape, forced displacement, persecution, pillaging, attacks against humanitarian missions and the use of children under fifteen in combat. The list of atrocities is endless. I cannot ignore these alleged crimes, [Prosecutor Bensouda stated].

Article 53(1) Report of the Situation in the Central African Republic II outlines the scope of preliminary examination conducted by the OTP, which includes analysis of the preconditions to Court’s jurisdiction, the Court’s subject-matter jurisdiction over the alleged crimes, the admissibility issues articulated in Article 17, and the overall interest of justice. The conclusions of the preliminary examination provided reasonable basis for the OTP to initiate an investigation. You may follow the developments in both situations on the Court’s website:

Scrutinizing Verdicts

Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly settled question about whether  the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The current answer is a resounding no, and, based on press and opinion, the Supreme Court does not seem likely to change that.

In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts have refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room).

In contrast  to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.

So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.

Pace Criminal Justice Institute is co-hosting a CLE TODAY – Tuesday, October 7, 2014 at 6:00 pm – 8:30 pm titled Cell Phone Searches after Riley: Investigative and Evidentiary, in the Law Library Moot Court Room, at Pace Law School, White Plains, NY.

Join the panel of speakers including Professors David Bender, David Dorfman, and Bennett Gershman, Bronx A.D.A. and ’88 alumni Thomas Kapp, and Town of Greenburgh Chief of Police and ’06 alumni Chris McNerney as they discuss the implications of the United States Supreme Court decision Riley v. California, No. 13-132, 13-212, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In Riley, the Court consolidated two criminal appeals that both involved a defendant challenging the admissibility of evidence found during police officers’ warrantless search of data stored on the defendant’s cell phone.

Attendees can earn up to 2.5 CLE skills credit. We look forward to seeing you there!

In a 9/29/14 press release, the President of the Assembly of States Parties to the Rome Statute announced that Latvia, Poland, and Spain deposited their respective instruments of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. Article 5 of the Rome Statute enumerates the crimes within the subject matter jurisdiction of the International Criminal Court (ICC). Although article 5(d) always listed the crime of aggression as one of the crimes within the Court’s jurisdiction (since 1998), it was not until the June 2010 Review Conference of the Rome Statute, that article 8 bis (Crime of Aggression) was articulated, amending so the Rome Statute. Article 8 bis and all other amendments related to the crime of aggression were inserted in the Rome Statute by resolution RC/Res. 6 of 11 June 2010

Further, as stated in article 15 bis (2), “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties,” leaving States Parties with ample time to decide whether to ratify the amendments or not. Lichtenstein became the first State Party to ratify the crime of aggression amendments on 8 May 2012, followed by Samoa, Trinidad & Tobago, and most recently Latvia, Poland, and Spain. There are so far 18 States Parties that have ratified or accepted the amendments on the crime of aggression as articulated during the 2010 Review Conference held in Kampala, Uganda.

The crime of aggression amendments were not the only amendments achieved during the 2010 review conference. Additionally, as stated in resolution RC/Res. 5 of 10 June 2010, a set of amendments pertaining to article 8 of the Rome Statute were also adopted. These amendments addressed “the characterization of the use of certain weapons during non-international armed conflict as war crimes.” There are so far 21 States Parties that have ratified or accepted these amendments pertaining to article 8, also including Latvia, Poland, and Spain.

A Columbia County Supreme Court Judge has ordered a new parole hearing for a defendant convicted of murder and sentenced to 20 years to life imprisonment who has already served 32 years in prison. The defendant had sought to produce the minutes of his original sentence, which he claimed contained a sentencing recommendation and showed that the sentencing court had decided to impose a 20 year minimum and rejected the maximum of 25 years to life. The district attorney’s office claimed that despite numerous attempts to locate the original sentencing minutes they could not be found.

The judge’s chambers undertook its own search and found the minutes within approximately 30 minutes.

The court expressed concern about the district attorney’s conduct and characterized it as either lack of diligence or deliberate indifference. It expressed concern that the conduct was routine, and declined to wait until it could be determined if that conduct was sanctionable.

A tip to practitioners: the court’s search had uncovered a 2008 letter from the chief court reporter for Nassau County that indicated  the minutes were not unavailable. The court noted, however, that under 22 NYCRR §800.9(b)(5), sentencing minutes are required to be part of the record on appeal from a conviction and are archived by the State Library.

The court also took the parole board to task for considering materials, including victim impact statements,  that contained “unfounded assertions” and were “emotional,” “extremely inflammatory.” It also criticized the parole board for failing to comply with N.Y. Executive Law §259-i(2)(a), which requires that the board’s recommendation against parole directly address comments before the board.

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POST WRITTEN BY: Prof. 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 September 2, 2014, the ICC Prosecutor, Fatou Bensouda, issued a public statement in which she rejected as “baseless” criticisms in “[r]ecent media reports and commentaries,” which she said “have erroneously suggested that the International Criminal Court (ICC) has persistently avoided opening an investigation into alleged war crimes in Gaza due to political pressure.”

The Prosecutor stated that these criticisms were without merit because of the Rome Statute’s jurisdictional requirements. The Prosecutor did not (and could not, without investigation) argue that any alleged crimes committed by any participant in the conflict failed to meet the Statute’s subject matter requirements for genocide, war crimes, or crimes against humanity. The problem, rather, was the Statute’s other jurisdictional requirements that authorize the ICC to open an investigation only with respect to crimes alleged to have occurred on the territory of a State or by nationals of a State that has ratified the Rome Statute or has accepted ICC jurisdiction by an ad hoc declaration pursuant to Article 12(3) of the Statute. At this time, neither Israel nor the Palestinian Authority is a State Party to the Rome Statute, nor has either as yet filed an Article 12(3) declaration. (Palestine did file such a declaration in 2009, but it was found invalid for lack of standing.)

The Prosecutor noted that her Office after examination has concluded that because of UN General Assembly Res. 67/19 issued on November 29, 2012 upgrading Palestine’s status to a “non-member observer State,” Palestine could now accede to the Rome Statute or lodge an Article 12(3) declaration conferring jurisdiction to the ICC over the situation in Gaza. But it has not yet done so.

The Prosecutor in her statement referred to an additional mechanism through which the ICC could obtain authorization to investigate the situation in Gaza. Pursuant to Article 13(b) of the Rome Statute, the UN Security Council can act under its Chapter VII powers to authorize an ICC investigation, even if the alleged crimes were not committed on the territory of a State Party or by a national of a State Party. The Security Council has not taken such action as yet with respect to Gaza (nor has it done so with respect to the violence in Syria).

Amnesty International, a non-governmental organization whose mission is to protect human rights internationally, has called for the UN Security Council, the Palestinian Authority, and Israel to provide the ICC with jurisdiction to investigate and prosecute any persons responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.

The Prosecutor concluded her September 2 statement by saying,

It is my firm belief that recourse to justice should never be compromised by political expediency. The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities. This, we will never allow.

The ICC has been the target of many political criticisms and challenges, starting from its foundational conferences in the 1990s, and these challenges will, no doubt, continue for years to come. The ICC Prosecutor is to be commended for being proactive in addressing these challenges in an effort to support the credibility of the Court.

The Pistorius Verdict

As the Pistorius trial proceeded – unprecedentedly on television –some of the differences between South African criminal procedure and US or New York criminal procedure have been obvious. Now that the verdict is in, we have the luxurious opportunity to reflect on how those differences played out. Until the full verdict is available a full analysis is not possible but a few comparative observations are worth making.

The most striking visible comparison at this homicide trial was the absence of a twelve-person lay jury and the presence of a single judicial factfinder who, assisted by two assessors, sat in judgment of the defendant. The rendition of a verdict magnifies this difference. In New York, as in the rest of the United States, of course, the law forbids a criminal jury from explaining its guilty/not guilty verdict in any way, even to the point of prohibiting any sort of questions or special interrogatories that we regularly use in civil cases. Even when jurors are interviewed post-trial and actually tell the media why they decided a case the way they did, that information has absolutely no legal significance unless there has been an invasion into the jury room, e.g., a bribe, a newspaper article, and the like. To be sure, we do have judicial factfinders who explain their findings of fact in detail and on the record; but in most cases those factfinders are making factual determinations in connection with legal rulings, e.g., suppression hearings, sentencing, and the like – and not judging the guilt or non-guilt of fellow citizens, with all the consequences of that determination.

There are good reasons for our prohibition about impeaching a jury’s verdict. Briefly, those reasons stem from the role of the jury in our system – the people in the courtroom – and the freedom of that group of supposedly “impartial” “peers” to do what it thinks is best and for whatever reasons it wants, without fear of reprisal or reversal. That is a basic protection for defendants in our system, and, accordingly, we devote a tremendous amount of resources to jury selection and the jury process.  In South Africa, however, the jury trial was abolished along with apartheid, and the jury in a murder case – like Pistorius – consists of a judge and two assisting assessors – two jurors who, as far as I can tell, have never appeared publicly during the trial, certainly not during the announcement of their own verdict.

Less protection for the accused? Greater protection for the accused? Different protection for the accused? If you’re looking for the power of the people to do what they want to render a just verdict, that protection is missing. Visually, this is striking – a single judge is handing down the decision of guilty or not guilty. But there is something comforting about knowing exactly why the factfinder decided as it did. Of course, we are familiar with the underlying notion in our system that one way we limit judicial discretion is to require a judge to write down reasons for his or her rulings – both because it forces the judge to justify and articulate the findings and so that those rulings can be reviewed. But more than that, on a human level, it just feels right to require anyone who judges another human being – and condemns him – to explain why.

A different set of protections, to be sure. But food for comparative thought.

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