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July 31, 2012

Plea bargains, snitching and pursuit of criminal justice "accuracy"

9780814758977_DetailI am glad we have spent a lot of time talking about whether and when and how plea bargains might enhance or impede "accuracy" in the resolution of criminal charges.  This is because pleas and plea bargains are much more central to modern criminal justice outcomes (at least in the US) than are trials, as the Supreme Court recently highlighted in Lafler v. Cooper:  "[T]he reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.  Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."  Lafler, slip. op. at p. 11.

Katie noted in a comment already that some (but not all) of the discussion and debate today turned, to some degree, on potentially different conceptions of "accuracy."  Would we would call "accurate" the outcome in the Casey Anthony case given that she was found guilty of lying to the police, though was acquitted of homicide charges?  Is a system "accurate" which gives LWOP to the Green River Killer for the undisputed rape and murder of at least 50 women and girls, while it executes Troy Davis for the highly disputed killing of one person?  Usefully, our debate today highlights that we could all be committed to prioritize "accuracy" in criminal trials, but then have heated debates about what that concept really means (and, similarly, we could all be committed to due process/privacy rights in police investigations, but then have heated debates about what that really means).

Because plea bargains are a huge part of modern criminal justice systems, and because informants often get sweet plea deals, I encourage everyone interested in this topic to check out some of the resources at Snitching.org, which provides this introduction:

Criminal informants are an influential part of the American criminal process.   Every year, the government makes thousands of deals with criminal offenders in exchange for information.  That information affects every aspect of the system, from investigations to arrests, prosecutions, and sentencing.  These deals also result in leniency or even freedom for thousands of informant-offenders.  Yet these important decisions are largely informal, unregulated, and secretive....

Criminal informant policies have costs as well as benefits.  On the one hand, informants can be powerful investigative tools against organized crime, gangs, corporate fraud, and corrupt political practices.  But many informants get away with serious crimes while they are cooperating with the goverment, while numerous innocent people have been convicted based on unreliable information from informants.  Sometimes vulnerable people are unfairly pressured into becoming informants, with devastating consequences for them and their families.  Finally, in some high-crime neighborhoods criminal snitching can be so pervasive that it affects the safety of innocent residents.  All too often, the public does not know the true extent of these costs.

For a great slice of information on this topic, you can read the short introduction to the book pictured in this post at this link.  The author of this book also gave a lecture on the topic of her book which can be watched here via YouTube.

Finally, I was only joking about the idea of allowing students to make "plea bargains" to determine their final grades.  However, if one really believes that broad use of plea bargaining really can and often will improve the accuracy of criminal justice outcomes, perhaps broad use of "grade bargaining" between students and profs should be allowed in order to improve the accuracy of grading outcomes.  And, to incorporate the reality of cooperators/snitches, consider if grading accuracy would be impoved if a professor made this offer: the first few students who genuinely convince the prof (in secret) that certain other students should get Cs will be sure to get As.  (Such a grading scheme would, in fact and form, replicate the reality if/when a prosecutor has to sort out how to charge and prosecute members of a drug ring or fraud conspiracy: the dealers or executives who are quickest to lay blame on others as the "really bad guys" are sure to get the best sentencing "grades" in the form of sweet plea deals.)

July 31, 2012 in Class reflections | Permalink | Comments (2) | TrackBack

Should there be special trial rules for the death penalty? Why?

As we continue to discuss and debate how criminal trial procedures might be structured if and when a society decides that accuracy should be the primary goal and principal value, consider whether and why the availability for a certain type of punishment (e.g., the death penalty or LWOP) should impact the way procedures are structured.  The US reality, as I explain in detail in my upper-level sentencing course, is that trial procedures are a lot different in most states when a case involves a possible death sentence. 

Helpfully, we can draw insight on ths issue with reference to two notable jurisdictions based on the mid-term papers of Grady and Natalie, who discussed the operation of the death penalty China and Saudi Arabia, respectively.

Below I have uploaded the mid-term papers of Grady and Natalie, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Owen on DP in China

Download Hoover on DP in Saudi Arabia

July 31, 2012 in Course materials and schedule, Preparing for the final, Reflections on class readings | Permalink | Comments (1) | TrackBack

July 30, 2012

Do you think Germany or Japan could have more accurate trials than the US?

Our last few classes will be focused on a discussion and debate about whether and how criminal trial procedures can and should be structured if/when a society decides that accuracy in the guilt/innocence determination can and should be the primary goal and principal value for criminal trials.  And, helpfully, we can draw insight on this issue with reference to two notable jurisdictions based on the mid-term papers of Kyle and Joshua, who discussed trial procedures in Germany and Japan, respectively.

Below I have uploaded the mid-term papers of Kyle and Joshua, and I highly encourage everyone to read these papers closely and then share comments concerning the question in the title of this post.

Download Schrodi_GermanCrimPro

Download Maygar Japan CJS

July 30, 2012 in Course materials and schedule, Preparing for the final, Reflections on class readings | Permalink | Comments (7) | TrackBack

July 27, 2012

The first two questions (take-home variety) of Berman's final exam

By popular request/demand, I am posting here a (slightly tweaked) version of the exam questions discussed in class.  These are now in final form and will also be distributed in hard-copy form in Monday's class.

Please let me know if you have any problem accessing this document.

Download First part of Berman's 2012 CCP Final

July 27, 2012 in Preparing for the final | Permalink | Comments (4) | TrackBack

July 24, 2012

Crown prosecutors looking at new charging guidelines

Kyle sent along this notable new criminal procedure article from the The Telegraph, which carries this headline and subheadling: "Criminals could avoid court in legal shake-up: Criminals arrested for offences such as minor assaults, theft and fraud could escape prosecution in the biggest shake-up of charging guidelines for 20 years." Here are excerpts from an interesting article raising interesting policy questions faced by all modern, advanced criminal justice systems:

Prosecutors would take no further action on suspects if they do not believe it is “proportionate” to take them to court, under proposals published yesterday.

It would mean factors such as cost and the length of a likely trial being taken into consideration when deciding whether to charge an offender. Prosecutors would even be asked to weigh such issues against the likely punishment a criminal would get if convicted.

It is the second time in three years that Keir Starmer, the Director of Public Prosecutions, has suggested such a move to bring “common sense” to prosecutions. It would be a dramatic shake-up of the so-called prosecutor’s code, which has been in operation since the 1950s, and would restore a “proportionality test” for the first time since 1992.

John Fassenfelt, chairman of the Magistrate’s Association, warned it could encourage prosecutors not to proceed in “more and more cases”.

The Code for Crown Prosecutors already requires them to consider whether it is in the “public interest” to charge a suspect. That includes considering factors such as the impact and harm the offence causes, the age of the suspect and previous offending.

Mr Starmer now wants to add an additional factor where prosecutors should consider “whether prosecution is proportionate to the likely outcome”. It would mean considering the “cost” to the Crown Prosecution Service and justice system “especially where it could be regarded as excessive when weighed against any likely penalty”.

The code stressed that must not be the only reason for not proceeding, but adds: “Cost is a relevant factor when making an overall assessment of the public interest.” Mr Starmer suggested that could mean offences that are likely to end in an absolute discharge by the court. However, the CPS was last night unable to expand on other scenarios as each would have to be considered on its merits.

It raises the prospect of low-level crime, such as a very minor assault or theft, being kept out of the courts. Prosecutors would also need to consider “effective case management” to avoid “excessively, long and complex proceedings”. That could mean individuals on the edge of a complicated fraud case not being charged so prosecutors could concentrate on the key participants in a shorter trial....

The proposed changes to the code are now open to consultation until October. Max Hill QC, chairman of the Criminal Bar Association, said: “If the intended meaning of proportionality is that expensive cases are only 'worth it’ if they lead to long prison sentences, it would be wrong.

“The case of John Terry [the footballer cleared of racism last week] was expensive, by the time court time and defence costs were factored in, but there were very clear public interest reasons for bringing it. Fortunately, I do not interpret the consultation to be proposing that we refrain from prosecuting such cases.”

The proposed changes are part of an attempt to streamline the public interest test in charging decisions, which is now narrowed down to seven broad questions, covering the issues of harm, age and proportionality, rather than a long list of specific factors....

Mr Starmer said: “The CPS handles 900,000 defendants each year ... and I want to see a stronger, smarter CPS, continuing to prosecute robustly and bringing offenders to justice for the good of the public and victims. I think this new code will help us meet that aim.”

July 24, 2012 in Current Affairs | Permalink | Comments (4) | TrackBack

July 18, 2012

Seeking "mid-term" feedback on assignments, course/blog coverage, exam concerns, etc.

We are hitting roughly the mid-way point in both the Oxford program and in our class meetings.  That reality, as well as your recent focus on the mid-term mini-paper, has prompted me to put up this post seeking constructive feedback on our course and this blog (and/or the whole Oxford program) so far.

I stress the term "constructive" for this feedback because there is still ample time to tweak our class or this blog and/or other parts of the Oxford program to achieve any remaining goals you have for our final few weeks together here in the UK.  I continue to be a bit overwhelmed by all I want us to be able to do together in the classroom, but I also want to continue to make sure I am tailoring our time together to fit student needs and interests rather than my own (always overflowing) desire to talk about (and blog about) all sort of areas of US and non-US criminal justice systems that I find fascinating.

Thanks in advance for any and all responses and input.

UPDATE:  Please add in this thread any/all concerns about my plans to give out two take-home questions and to allow student to complete the final exam by completing one or two take-home exam questions or one or two in-class exam questions.

July 18, 2012 in About this blog, Class reflections | Permalink | Comments (11) | TrackBack

July 12, 2012

"Global Efforts Not Up to Combating Criminals"

The title of this post is the main entry of this notable new website/resource created by the International Institutions and Global Governance Program of the Council of Foreign Relations.  Here is more of the stated concern:

With transnational crime proliferating at unprecedented levels and costing by some estimates over $2 trillion annually, IIGG's new Global Governance Monitor: Transnational Crime reveals gaps in the international anticrime system.

July 12, 2012 in Crime data, Current Affairs, Recommended scholarship | Permalink | Comments (0) | TrackBack

July 11, 2012

"Courts Putting Stop-and-Frisk Policy on Trial"

The title of this post is the headline of this notable new front-page article in today's New York Times, which gets started this way:

New York City’s accelerating use of police stop-and-frisk tactics has brought a growing chorus of opponents who have been matched in intensity only by the officials who defend the policy. But recent rulings by federal and state courts have now cast judges as the most potent critics of the practice, raising sharp questions about whether the city has sidestepped the Constitution in the drive to keep crime rates low.

The inescapable conclusion is that the city will eventually have to redefine its stop-and-frisk policy, legal experts say, and that the changes — whether voluntary or forced — will fundamentally alter how the police interact with young minority men on the streets.

Some legal experts say the police could be pushed into reducing the numbers of street stops of New Yorkers by hundreds of thousands a year, and that the proportion of stop-and-frisk subjects who are black and Latino would be sharply reduced.

A settlement last year of a class-action case involving stop-and-frisk policies in Philadelphia laid out a model that, if followed in New York, could call for the courts to supervise an imposed system of police monitoring and accountability.

The courts have been energized to step in, some lawyers say, as the debate has intensified over police tactics that have brought legal challenges, academic analysis and news coverage. “The decisions show that the courts are suspicious of the current police practices,” said Michael C. Dorf, a constitutional law professor at Cornell.

Randolph M. McLaughlin, a law professor at Pace University, said the new judicial attention was a product of the numbers: More than 80 percent of those stopped in New York are black or Latino, and last year there were 686,000 stops, with this year’s numbers heading higher. “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?’ And judges read the newspaper too,” Professor McLaughlin said.

UPDATE:  Here is a fascinating new follow-up article in the New York Times concerning the use (and misuse?) of stop-and-frisk techniques in Philadelphia, which gets started this way:

Mayor Michael R. Bloomberg of New York was dismissive when asked if his police department, under siege for the way it uses the stop-and-frisk tactic, might take a lesson from Philadelphia’s response to a similar challenge.  “Why would any rational person want to trade what we have here for the situation in Philadelphia — more murders, higher crime?”  Mr. Bloomberg said in May, referring to an epidemic of gun violence that in 2010 pushed Philadelphia’s homicide rate up for the first time since 2007, an increase that continued last year.

City leaders here see it differently.  A year after they settled litigation by agreeing to institute a host of safeguards to make sure police stops were conducted legally, they say they are simply doing what is needed to make sure that aggressive crime fighting is accompanied by a respect for civil rights.  As part of the agreement, the Police Department has set up an electronic database to track the legality of stops, adopted new training protocols and accepted oversight by an independent monitor.

Philadelphia’s willingness to put police procedures under the microscope has won praise even from the civil rights lawyers who in 2010 filed a class-action lawsuit, accusing police officers of disproportionately stopping African-American and Hispanic men without sufficient cause.  “The city agreed almost immediately after we filed suit to come to the table and discuss an amicable resolution,” said Paul Messing, one of the lawyers, adding that he thought Mayor Michael A. Nutter and other officials “understood that this presented serious constitutional concerns.”

Yet finding the right balance has not been easy.  City officials have watched in frustration as homicides have continued to climb.  As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011.

In most cases, Police Commissioner Charles H. Ramsey said, both the victims and the perpetrators have been black or Hispanic men.  “I think we have to face some realities,” said Commissioner Ramsey, who is black.  “We certainly do not want to be stopping people without the reasonable suspicion that we need to conduct a stop.  But just because someone is complaining and they want to play the race card doesn’t mean it’s an inappropriate stop.”  The total number of stops, he said, is not the issue. “The question is: Are you stopping the right people for the right reason?”

Philadelphia, like New York, increased the use of the stop-and-frisk tactic, arguing that it would help remove guns from the streets and serve as a deterrent.  In his 2007 mayoral campaign, Mr. Nutter promised to use the strategy to help combat a “crime emergency” in some neighborhoods.  That year, police officers made 136,711 pedestrian stops.  Two years after Mr. Nutter was elected, in 2009, the number nearly doubled to 253,276 — higher proportionally, in a city of 1.5 million, than the 685,724 stops made by police officers in New York last year.

Commissioner Ramsey said many factors could be driving the increase in homicides, including reductions in police department staffing and the fact that “we have an enormous problem with guns in Philadelphia”; the penalties for possession of an illegal firearm in New York are far tougher than in Pennsylvania, he noted.

But he also said that after Philadelphia increased the use of the stop-and-frisk tactic a few years ago, gun violence decreased. There was a 22 percent reduction in homicides from 2007, a year before the policy began, to 2009, “and our shootings went down.” he said.

Mr. Messing, the civil rights lawyer, said the problem was that as the number of stops escalated, the number of complaints he received grew even faster. “We were seeing huge numbers of stops being made without legal cause,” he said, adding that very few arrests were made and that guns were seized in about only 1 in 1,000 stops.

July 11, 2012 in Crime data, Current Affairs | Permalink | Comments (0) | TrackBack

July 10, 2012

"Londoners fight Olympic missiles at high court"

The title of this post is the headline of this notable article sent my way by Blaise (who has now earned extra credit for sending this my way).  Here is how the story starts:

London residents went to court on Monday to stop the government placing surface-to-air missiles on top of their apartment block during the Olympics, saying it could make them a target for attacks.

Britain's Ministry of Defence confirmed last week that the missile systems would be deployed at six sites across the capital during the Games to provide a "powerful deterrent" against a terror attack from the air.

Tenants of one of two blocks of flats near the Olympic Park in Stratford, east London, on which missiles will be based launched legal action last week, saying that the move would breach their human rights.

Lawyer Marc Willers, representing a group of residents from the Fred Wigg Tower in Leytonstone, east London, told a judge at London's high court the "unprecedented" move had caused them to fear for their safety.

"They have a fully justified fear that installation or deployment of the missile system on the roof of the Fred Wigg Tower gives rise to the additional risk that the tower itself may become the focus of a terrorist attack," he said.

Residents from the block of more than 100 local authority-owned homes are seeking an injunction to stop the systems being stationed there, claiming their rights have been breached because they were not consulted on the plans.

Defence Secretary Philip Hammond has said the MoD will defend the proceedings "vigorously" and is confident of defeating them.

Though not clarified in this article, I would guess that the residents here may be citing for their claims to one or both of two major modern international and regional human rights conventions: the International Covenant on Civil and Political Rights (“ICCPR”) and/or the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).

UPDATE:  Blaise has now sent along this follow-up AP story, which is headlined "Judge OKs rooftop missiles during London Olympics."

July 10, 2012 in Course materials and schedule, Current Affairs, Notable real cases | Permalink | Comments (3) | TrackBack

July 8, 2012

Recent Olympics security headlines (and food for police practices thought)

As we launch into a week of discussion about police practices, here are links to some recent stories about security issues surrounding the upcoming Olympics:

UPDATE:  This big front-page story from 9 July 2012 New York Times provides some more food for thought concerning police practices (and "consent-based" searching).  The piece is headlined "More Demands on Cell Carriers in Surveillance," and it begins this way:

In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The cellphone carriers’ reports, which come in response to a Congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

The reports also reveal a sometimes uneasy partnership with law enforcement agencies, with the carriers frequently rejecting demands that they considered legally questionable or unjustified. At least one carrier even referred some inappropriate requests to the F.B.I.

The information represents the first time data have been collected nationally on the frequency of cell surveillance by law enforcement.  The volume of the requests reported by the carriers — which most likely involve several million subscribers — surprised even some officials who have closely followed the growth of cell surveillance.

“I never expected it to be this massive,” said Representative Edward J. Markey, a Massachusetts Democrat who requested the reports from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking.  Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across all levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

July 8, 2012 in Course materials and schedule, Current Affairs | Permalink | Comments (5) | TrackBack

July 7, 2012

Headlines concerning big Oxford local crime news

Here are links to some recent reports and discussions of a notable on-going crime story here in Oxford:

July 7, 2012 in Current Affairs, Notable real cases | Permalink | Comments (3) | TrackBack

July 4, 2012

Extra class participation credit...

for whomever reports in the comments about any conversation with any UK native concerning whether he/she had ever heard of the Trayvon Martin case or the Troy Davis case

You can also earn credit for reporting on any conversations about the Amanda Knox case, though I suspect most folks in the UK have heard of this case because the victim, Meredith Kercher, was a British university exchange student.

UPDATE:  And, as mentioned in our second class, one person can get extra credit for providing a cite and/or link to the article about reasonable doubt as a burden of proof authored just under 20 years ago by one of my old bosses.

July 4, 2012 in Class reflections, Notable real cases | Permalink | Comments (6) | TrackBack

Welcome to Moritz College of Law (in Oxford), Comparative Criminal Procedure with Prof. Berman

I have made a habit in recent years to use blogs to support and supplement my instruction in law school classes. Some of these class blogs have served my purposes and goals well, others have meet with mixed results.  Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.

As this post documents, I will be continuing my bloggy ways even while across the pond during this Summer 2012 semester at the Moritz College of Law in Oxford.  (Note:  I have built this "new" blog directly atop the blog I used when teaching Criminal Law in Fall 2008 and again in Fall 2010. I am hopeful that students may benefit from (or at least find amusing) seeing some posts (and comments) which were generated here when I used it to teach Crim Law to Fall 1Ls at Ohio State.)

Welcome to the (re-)launch of this blogging adventure, with an emphasis this time around on comparative criminal procedure.  I am always pleased when this blog helps to promote a new type of student engagement, and it also provides an effective means for me to share both required and optional materials and ideas (e.g., you should be sure to read (and then re-read) chapter 1 of our text for our second and third classes).







July 4, 2012 in Course materials and schedule | Permalink | Comments (0) | TrackBack