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The prosecutor in the Michael Morton case in Texas, in which the defendant was exonerated, has pled guilty to criminal contempt for intentional non-disclosure of exculpatory evidence and will give up his law license, perform 500 hours of community service, and serve 10 days in jail.  Among the withheld evidence was the account of an eyewitness, the defendant’s son, who said he was not the murderer.

No matter what one’s views are on this unprecedented event, it should raise consciousness about the risk of withholding substantial exculpatory evidence and risking the conviction of an innocent person.

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KnowYourRighsFall2014The Pace Criminal Justice Society (CJS), the Pace Criminal Justice Institute (PCJI) and the Pace Alumni Relations Office are co-hosting an event titled Know Your Rights on Tuesday, November 18, 2014 at 4:30-5:30 PM in the Preston Hall Tudor Room during which our Criminal Justice Clinic Students under the leadership of Prof. David N. Dorfman will explore the appropriate responses to and the underlying issues that arise from police car stops, street stops, cell phone searches and more. Immediately after this event, the Annual Criminal Practice Networking Reception will take place at 5:30-6:30 PM in the Student Lounge, across the hall from the event, during which alumni, local prosecutors and defense counsel are invited to learn about the resources of the Pace Criminal Justice Institute, meet with other criminal law practitioners, and get to know and talk with students interested in pursuing a career in criminal practice.

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.

As reported in the October 24, 2014 press release, the Prosecutor of the International Criminal Court, Mrs. Fatou Bensouda, on October 23, 2014, addressed the United Nations Security Council on ways the Council can provide more effective support to the International Criminal Court (ICC).

The relationship between the ICC and the Security Council, which the Prosecutor addressed, has important implications for the ICC’s goal to end impunity for grave international crimes. Unlike the International Court of Justice, which was established in 1945 by the U.N. Charter as the U.N.’s principal judicial organ, the International Criminal Court is a judicial body independent of the U.N. The ICC was established through a separate treaty – the Rome Statute that entered into force in 2002 – with different jurisdictional predicates focusing on prosecution of individuals alleged to have committed grave crimes of an internationally recognized nature that are within the ICC’s subject matter jurisdiction.

Despite the ICC’s independent status, the Preamble of the Rome Statute “reaffirm[s] the Purposes and Principles of the Charter of the United Nations [which require] that all States shall refrain [from acting with force] in any … manner inconsistent with the Purposes of the United Nations.” In addition, Article 13(b) of the Statute accords the Council the capability to refer to the Court for criminal investigation matters the Council deems appropriate pursuant to its responsibility under Chapter VII of the U.N. Charter “to maintain or restore international peace and security.”

Article 13(b) provides the Council with the opportunity for the first time to invoke its Chapter VII authority to initiate criminal investigations before a standing international criminal court. Before the ICC’s establishment, the Council, when confronted with situations in which severe crimes threatening international peace occurred, had to provide for both investigation and prosecution through special resolutions and particularly crafted statutes that created ad hoc tribunals, such as those for the former Yugoslavia and for Rwanda.

The authority accorded to the Council by Article 13(b) is powerful and important because it authorizes the Council to refer to the ICC Prosecutor investigation of crimes within the ICC’s subject matter jurisdiction where the ICC’s other jurisdictional predicates would otherwise be lacking. The Council can refer to the ICC Prosecutor investigation of crimes in situations even when the alleged crimes do not occur on the territory of a State Party to the Rome Statute or were not committed by a national of a State Party.

The Security Council has utilized its Article 13(b) authority thus far to refer two situations to the ICC: Darfur, Sudan (2005) and Libya (2011). The ICC Prosecutor has been actively pursuing cases in both of these situations.

Following the Council’s Sudan referral, an ICC court issued arrest warrants for Sudanese president Omar Hassan Ahmad al Bashir in March 2009 and again in July 2010, charging him with co-perpetrator responsibility on multiple counts alleging crimes against humanity, war crimes, and genocide relating to the bloody conflict in Sudan.

Several African States have declined to execute these warrants when Al Bashir traveled to these States for diplomatic purposes. As reported previously on this blog, in April of this year an ICC Pre-Trial Chamber chastised the Democratic Republic of Congo (DRC) for failing to comply with ICC requests for Al Bashir’s arrest when in February 2014, he visited the DRC to participate in a summit conference of African leaders.

In her October 23 address to the Council and during the discussion that followed, Prosecutor Bensouda gave prominent attention to issues relating to the Darfur situation. She called on the Council, when issuing its Article 13(b) referrals, to advise States of their cooperation responsibilities in the stronger terms that it used in its resolutions creating the ad hoc tribunals. She urged the Council to call on U.N. Member States to cooperate in the arrest of suspects under ICC arrest warrants, and she urged the Council to consider ways to address the failure of States to comply with such obligations.

exonerationsmapPhD. Pamela Perez, Professor of biostatistics at Loma Linda University, conducted research for Safer-America.com in which she examined the 1,450 exonerations listed on the National Registry of Exonerations as of Oct. 20, 2014. She reported that although one cannot know for sure, the numbers collected so far show that “[B]lack Americans are exonerated at a substantially slower rate than any other race.” The collected data was then translated into an interactive map showing exoneration information through the United States breaking down exonerations by state, crime and race of the wrongfully convicted.

Pace Criminal Justice Blog has reported on the issue of wrongful convictions and exonerations, including, among others, the following posts:

Additional Reading:

POST WRITTEN BY: Rebecca Arbolino (’16), Pace law School

On October 7, 2014, Pace Law School CLE and the Pace Law School Criminal Justice Institute co-hosted “Cell Phone Searches after Riley: Investigative and Evidentiary Issues.” The CLE commenced in the Gerber Glass Law Library Moot Court Room. Streaming video of the event was available online from Pace Law School.

Pace Law Professors Bennett Gershman, David Dorfman, and David Bender, along with two distinguished Pace Alumni, discussed the implications of the recent Supreme Court decision in Riley v. California.  Professor Bender is not only a professor at Pace Law but also a sole practitioner with extensive experience in technology and privacy litigation. Thomas Kapp, an Assistant District Attorney for Bronx County, and Chris McNerney, Esq., the Chief of Police for the Town of Greenburgh, added insight and practical depth to the scholarly panel. The moderator, Pace Law School 3L Annmarie Stephanic, began the event with a recorded webinar conversation between Prof. Gershman, a former defense litigator and prosecutor and A.D.A. Thomas Kapp. After the webinar, the panelists discussed Fourth Amendment issues after Riley. Finally, the panelists answered questions from attendees.

Webinar

The webinar elucidated the main issues presented by Riley. Professor Gershman remarked upon Riley as a “landmark case.”  Riley is the first Supreme Court decision about police intrusion upon technological privacy, and Gershman found that the decision’s unanimity was “startling.”

A.D.A. Kapp explained that the practical implications for policing are minor: most prosecutors find it prudent not to use evidence acquired through warrantless cell phone searches. Rules for New York State and other states for searches incident to valid arrests required warrants to search cell phones before Riley in the absence of exigent circumstances or consent. According to Kapp, since the scope of Riley’s holding is limited to cell phones, warrantless searches of digital devices such as flash drives and digital cameras are still permissible.

Gershman agreed with the limited scope of Riley, but applied the reasoning therein to other devices like laptops: if an item’s immense storage capacity heightens the privacy intrusion of searching that item, then searches of digital devices similar to cell phones involve a heightened individual privacy interest. Under the Fourth Amendment reasonableness balancing test for warrantless searches, the question is whether any legitimate government interest outweighs the intrusion upon individual privacy interest. If the heightened privacy interest in cell phones expressed in Riley applies to similar devices like laptops, then the scales may tip toward requiring warrants to search those similar devices.

Kapp called Riley “a seminal case for the digital world” because the Supreme Court finally recognized the individual “right to digital privacy.”

Panel Discussion

Following the showing of the webinar, the panel discussion began with Prof. Bender explaining the rapid changes in privacy law. Privacy law changes in response to developments in technology such are drones and data mining.

Prof. Dorfman ignited the conversation with a criminal defense perspective: although police can often obtain a search warrant quickly, problems specific to searches of cell phones arise in applying for and issuing warrants. For example, if an officer arrests someone for selling drugs and he discovers a cell phone on the arrestee’s person, then is there a sufficient nexus between the drug selling and cell phone to establish probable cause for searching the cell phone? Prof. Dorfman further remarked upon Riley’s impacts for particularity in warrants to search cell phones: if cell phones contain immense amounts of data and are subject to heightened privacy interests, then do warrants to search cell phones require more particularity than they did before Riley?

Police Chief McNerney explained that officers in New York State almost always apply for a search warrant to search a cell phone. In applying for a search warrant, the officer asks for permission to search all possible areas in which he may obtain evidence of the crime, and the judge limits the officer’s requests. Satisfying the particularity requirement is thus the province of judges.

A.D.A. Kapp predicted that search warrants for both cell phones and other digital devices like computers will soon be subject to heightened particularity requirements. Although the particularity requirement presents specific problem in the context of digital searches, judges may decide to limit the scope of digital searches by issuing particularized warrants thereof.

Prof. Gershman mentioned the doctrine of minimization. Minimization requires particularity in order to avoid the search of information that is either privileged or unrelated to the crime.

Despite the Circuit Split about the particularity requirement for digital search warrants, Prof. Bender suggested the following procedure as a way to satisfy the doctrine of minimization. Officers create a bitstream copy, or mirror image, of the data to be searched. After a neutral third party conducts the search of the bitstream copy, the third party then provides officers with only information that is both non-privileged and relevant to the offense.

Prof. Dorfman further elaborated upon the framers’ concerns about “general searches.”  The doctrine of minimization and the particularity requirement are designed to prevent such searches. The Riley court explained that a search of a person’s cell phone is more intrusive than a search of his house is. The problem with particularity in searches of cell phones arises because of the plain view doctrine. For example, if officers are conducting a valid search for contraband ‘X’, then officers can seize contraband ‘Y’ so long as contraband ‘Y’ is in plain view during the search for contraband ‘X’. Evidence in plain view of crimes irrelevant to the authorized search is especially problematic in searches of cell phones with immense storage capacities.

According to Chief McNerney, the constitutionality of cell phone searches ultimately “boils down to reasonableness.” Prof. Dorfman explained, however, that “reasonableness” is not all-or-nothing: an individual who uses technology does not necessarily relinquish his right to privacy.

Prof. Gershman and the panelists ended the discussion with the framers’ intent: the framers themselves could not have imagined a device like a cell phone. Surprisingly, though, the Supreme Court originalists agreed that cell phones deserve heightened privacy protection. The Supreme Court pushes principles until they become illogical. In United States v. Robinson, 414 U.S. 218 (1973), the assumption that defendant had no expectation of privacy in his cigarette pack rang true. In Riley, however, the assumption that defendants had no expectation of privacy in their cell phones became illogical.

Q &A Session

An astute attendee asked about the significance of Riley’s warrant requirement, given the various exceptions thereto. Namely, if warrantless searches are permissible when no exigent circumstance exists, the owner consents to the search, or the officer conducts an inventory search, then does the warrant requirement change anything?

Although the panel understood exigent circumstances as a valid exception to the warrant requirement for nearly any search, panelists opined about consent and inventory searches. Chief McNerney explained that consent can be problematic.  The NYPD, for example, required specific, written consent forms instead of verbal consent.

A.D.A. Kapp wondered if the exception for inventory searches applies to cell phones: if cell phones are containers, then inventory searches thereof ensure that the owner cannot later claim that data is missing. Riley does not address whether a warrantless inventory search to catalog cell phone data is reasonable under the Fourth Amendment. Prof. Dorfman responded that an inventory search cannot be a ruse for an investigative search: the police have the burden to create a non-investigatory procedure for inventory searches.

Prof. Dorfman also inquired about whether warrantless searches of other digital devices stored in a vehicle fall under the automobile exception to the warrant requirement. Riley requires a warrant for cell phones within a legal automobile stop, even when officers have probable cause to believe that there is contraband inside the automobile. Riley does not, however, address whether searches of similar devices require warrants within the context of the automobile exception.

Another attendee asked about Riley’s rejection of applying the container analogy to cell phones: are there further implications for searches of similar, non-container devices? The panel agreed that Riley’s rejection of the container analogy to cell phones implies changes in the future of digital searches, but expressed that Riley does not illuminate the nature of those changes. Prof. Dorfman explained the impossibility of applying the constitutional text and framers’ intent to searches of intangible things like digital data: such application is like trying to fit “a square peg into a round hole.”  Prof.  Bender said that it may be best for the legislature to answer such questions.

Prof. Gershman concluded the discussion stating that both the judiciary and the legislature are “behind the curve perpetually” in the light of rapidly changing technology.

New York, like most of the United States, continues to permit the use of bail bonds-persons to post collateral for the release of criminal defendants. The rest of the world either prohibits this practice or takes an extremely dim view of it. See, Adam Liptak, Illegal Globally, Bail for Profit Remains in U.S., New York Times (Jan. 29, 2008). 

Here is an interesting portrait of what today’s bounty hunters actually look like. Criminal Justice Degree Hub* recently published What Bounty Hunters Look Like Today.

Related Reading:

*Opinions expressed in this post are those of the author and do not reflect the position of the Pace Criminal Justice Institute or its Board of Advisors.

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.

New York State has codified several evidentiary presumptions authorizing courts to instruct a jury that it may infer a fact necessary for an element of a crime charged from supporting facts that the jury finds the prosecution has proved beyond a reasonable doubt. In conformance with federal due process requirements, the inferences to be drawn are not mandatory but permissive. This means that based on the evidence – including any facts adduced by the defense during cross-examination or rebuttal – the jury may, but is not required to, draw an inference that the element has been established.

Such presumptions are potentially decisive for a defendant’s fate and should be carefully considered by the courts. Prior to submitting a case to the jury, trial courts must decide whether the evidence presented was sufficient to instruct the jury on a statutory presumption. Subsequently, appellate courts often are tasked with reviewing whether such an instruction, if given and may have determined the jury’s guilty verdict on the related charge, was improper and constituted an error requiring reversal of the conviction on that charge.

As discussed earlier, in June of this year the NY Court of Appeals, in a 5-2 decision, upheld a conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person, where the conviction on this charge was based on an evidentiary presumption under Penal Law § 265.15(4) stating that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” As noted previously, the Court did not fully address a possible constitutional issue regarding the application of the presumption in that case because the issue was not raised on appeal.

Recently the Court of Appeals heard People v. Kims, Slip. Op. 07196 (N.Y. Oct. 23, 2014) that, among other issues, involved the applicability of another statutory presumption. Penal Law § 220.25(2) provides, in summary, that the presence of certain controlled substances in open view in a non-public room under circumstances evincing an intent to prepare such substances for sale is “presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance ….”

The permissive inference allowed by section 220.25(2) has come to be termed the “drug factory” presumption. The New York State Legislature enacted this presumption in 1971 to aid prosecutors in proving a possession charge in circumstances where police did not find a controlled substance on the person of a defendant at the time the defendant was arrested. The presumption nevertheless permits a jury to find “constructive possession” in circumstances where the defendant is in “close proximity” to other facts regarding controlled substances mentioned in the statute.

Presumption in section 220.25(2) applies to any person in close proximity to a controlled substance in the circumstances set forth and is similar to presumption in section 265.15(4) that assigns criminal responsibility for any person in a vehicle in which a firearm is found. The presumptive criminal responsibility extended in these sections to a broad scope of persons provides prosecutors with plea-bargaining opportunities to turn associated persons against one another.

In People v. Kims, the Court of Appeals focused on the fact that the defendant was apprehended by police after exiting his apartment, in which police subsequently found controlled substances and was not trying to avoid arrest by fleeing the location. Under these circumstances, the Court agreed with the Fourth Department’s decision that the defendant, when apprehended, was not in “close proximity” to the controlled substances.

Accordingly, the Court unanimously affirmed the Appellate Division Fourth Department’s decision holding that the trial court erred when instructing the jury on Penal Law § 220.25(2)’s presumption. Relying on its previous decision in People v. Martinez, 628 N.E.2d 1320 (N.Y. 1993), the Court reasoned that in this case the trial court’s error in instructing the jury was not harmless because the jury’s verdict was based on the constructive possession inference. The Court affirmed the Fourth Department’s reversal of the convictions based on the presumption and ordered retrial on these charges, while affirming the defendant’s conviction on other charges.

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.

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:

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