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Are Drug Courts A Fraud?

There is a hot debate brewing on the validity of drug courts. According to the National Drug Court Institute, Drug courts is a voluntary program for persons who are charged with drug related crimes. These programs, built around the judicial system, provide for diversion of individuals from traditional criminal courts to an intensive interactive program involving criminal justice professionals including the judges themselves who work on an intense one and one basis with drug offenders in an attempt to change their ways. The conventional wisdom is that these programs are working well. Recently a controversy has errupted about their efficacy.

Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”in which the author challenges the overall sucess rates of these programs. Mr. Erickson correctly challenges some flaws in this sucess reporting statistics, but moves from this position to write a blistering indictment on these programs generally. Texas Attorney Jamie Spencer has done a succinct job in criticizing Mr. Erickson’s analysis.

I don’t doubt that there may be some puffery on statistics.  Mark Twain said that there are lies, damn lies, and statistics.   I have, however, seen drug courts in action and they definitely have some successes.   I am aware of the danger of andectodal evidence however I strongly believe that any program that provides personal attention and a support network to those with drug problems is a useful enterprise.  I also think that making judges a partner in rehabilitation will help bring home the defendant’s humanity and help judges remember at sentencing time that the people in front of them are just that and not file numbers.

A Witch Hunt for Sex Offenders

As Bloggers Douglas Berman, and Norm Patis (at Crime and Federalism) have noted, numerous states have been passing laws trying to ban sex offenders from participating in Halloween. Mr. Patis correctly notes that this ban is ironic because State Legislatures around the country have very much treated accused sex offenders very similarly to the way that alleged witches were treated in Salem. As detailed in articles from New York and Tennessee and Texas everyone is trying to keep sex offenders from participating in the holiday. This form of ineffectual legislation serves no useful purpose and is a classic game of one upmanship.

Ninth Circuit Recognizes that a Defendant Who Pled Guilty Can Be Actually Innocent

In most people’s minds, an innocent man would never plead guilty to an offense. A recent decision of the United States Court of Appeals for the 9th Circuit calls this assumption into question.

In Smith v. Baldwin, 04-35253 (9th Cir., Oct. 24, 2006), a divided Ninth Circuit panel found that a defendant who pled guilty to an offense could assert his actual innocence in challenging his conviction. There, Roger Smith pleaded guilty to felony murder after a burglary turned deadly. Eyewitness testimony established that either Smith or his buddy Jacob Edmonds committed the murder, and the killer did so entirely outside the presence of the other burglar. Although there was evidence pointing to Edmonds as the killer, he was the first to make a deal and he agreed to testify against Smith. After prosecutors confirmed that Edmonds had passed a polygraph, Smith decided to cut his losses and plead guilty to felony murder based on his participation in the burglary.

Edmonds later recanted, admitting that he was the killer and suggesting that Smith knew nothing of his violent intentions (in which case felony murder arguably would not apply). And that polygraph that Edmonds took? It turned out that the results were borderline at best. Smith sought habeas relief, but Oregon prosecutors threatened to revoke Edmonds’ deal if he agreed to testify. In more bad news for Smith, his federal petition was likely barred because he had failed to comply with all of the procedural requirements under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Thankfully for Mr. Smith the AEDPA has a safety valve for claims of actual innocence. The Ninth Circuit found that the recantation was sufficient evidence of “actual innocence” to allow Mr. Smith’s habeas claim to proceed. The Court found that the prosecution’s effort to prevent Edmonds from testifying is a sufficient basis for presuming that Edmonds is now telling the truth. Accordingly, it concludes that Smith has made a preliminary showing of actual innocence and remands for an evidentiary hearing on his habeas claim.
A virgorous dissent was lodged by Judge Bybee who noted that once a defendant pleads guilty to an offense, he gives up the right to assert his innocence. Further, a prosecutor did not commit error when he “reminded” the informant of his agreement under the plea.

Sixth Circuit Grants En Banc Rehearing on Important Booker Issue

Last week the United States Court of Appeals for the Sixth Circuit agreed to grant en banc review of the panel decision in US v. Vonner. 452 F.3d 560 (6th Cir. 2006). Vonner was the Court’s latest step to deal with when a guideline based sentence was unreasonable under Booker. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (noting that “when a defendant challenges a district court’s sentencing determination, we are instructed to determine ‘whether [the] sentence is unreasonable”).

Vonner was a divided decision in which the majority declared a within-guideline sentence unreasonable for “lack of adequate explanation.” By agreeing to hear Vonner en banc, the Sixth Circuit joins the Ninth Circuit in now having a big en banc case to use to provide its district courts with guidance on post-Booker sentencing. See United States v. Carty, — F.3d —-, 2006 WL 2494311 (9th Cir. 2006).

Politics and Corrections

Crime rates have been steadily falling for the last twenty years, but increased and often sensationalist media coverage means that the average American reads more stories about crime on a daily basis. Because of this, people’s “gut” and the statistics simply do not square up. As any attorney knows, where there is a conflict between the “head” and the “heart,” people vote from the heart.

People want to believe that tougher penalties mean lower crime. All the evidence shows that this is not the case. Study after study have demonstrated that mandatory penalties do not reduce crime. Even though the majority of the United States is opposed to “big government” and want tax cuts, corrections appears to be the exception. Economic arguments fall on deaf ears, and people think that simply getting “tougher” will solve the problem.

Dick DeVos’s analysts have correctly targeted this issue as a vulnerability in Governor Granholm’s platform. Because Mr. DeVos has never held government office, he has never made a mistake in his decision of who should be released and who should spend more time in prison. The lack of experience, however, does not demonstrate superior insight, knowledge, or ability to correct the problem. Choosing Mr. DeVos on this basis makes no more sense than choosing me (a lawyer) to perform open heart surgery because none of my prior patients have ever died on the operating table.

I have never been a fan of the Department of Corrections or the Parole Board, but they make difficult decisions on a daily basis. It is impossible to determine which offenders will reoffend and which ones will go straight. You can only make your best guess based on the offender’s history, prison conduct, and the strength of the release plan.

When an offender commits a high publicity homicide, there is a tendency to want to make heads roll, but this is a “knee jerk” reaction. Patricia Caruso is a career corrections professional who has made tough calls and has attempted to be both smart and sensible with corrections. She has implemented tighter controls, but has also moved money into community corrections. Anyone who reads the literature knows that this has one of the highest success rates and is the future of modern corrections.

I have litigated cases against “Prosecutor Granholm” back when she was an Assistant U.S. Attorney. She was smart, a tough adversary, and had a handle on the issues. Her choice in leaders for the Department of Corrections was careful and well chosen. With all due respect, Mr. DeVos, I think you are wrong on this issue.

“First Kill All the Lawyers”?

This often misquoted statement from Shakespeare’s Henry the VI has become the rallying cry of those out to destroy the legal system. Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying homage to attorneys as the front line defenders of democracy.

The statement is said by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s quote was really saying that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers.” Properly understood, this statement is a compliment to the practice of law.

Unfortunately, the assault on the legal profession often comes as much from within as from the insurance company, Congress, and other “reformers.” A classic example of this is the new proposal by the New York Bar Association to treat legal blogging as advertising and subject all this advertising to preapproval by the state bar. As FindLaw’s Julie Hidden reports blogging is the heart of free speech. The United States Supreme Court recognized in ACLU v. Reno that the internet is the greatest engine of free speech since “Gutenberg invented movable type.” Many of our country’s earliest political debates took place with anonymous leafletting by are founding fathers (many of whom were lawyers) debated how are new constitution should be drafted and founded

Legal blogging is political speech. Most lawyers do not do it (and certainly this one does not) to self-promote. I do not focus on my legal victories, I focus on the legal system for both its good and bad. Lawyers need to be free to criticize the system and a preapproval system for legal blogs is effectively a Board of Internet Censorship. Even if such an animal properly respected the First Amendment, such interference would slow down this embryonic form of communication. Just think back to the last presidential election and the effect of blogs on that election. While I do not pretend that my little corner of cyberspace is the “Drudge Report,” lawyers have the right (and duty) to speak up about what’s wrong about the system. Moreover, many of our nation’s leading reporters and politicians also have law licenses. The proposal of the New York Bar Association is horribly misguided and contrary to the fundamental principles on which this country was founded.

Justice Scalia Defends His Viewpoint to the ACLU

The other day, U.S. Supreme Court Justice Antonin Scalia went before 1,500 member ACLU conference to defend his legal viewpoints to an auditorium full of critics.

Justice Scalia believes that legal documents should be read literally. This principle of law is currently known as “textualism.” It used to be known as “literalism.” Textualist believe that the history behind a law should not be considered when determining its application. Textualist also believe that many of the traditional Cannons of Statutory Construction (e.g. that penal law should be strictly construed, the remedial laws should be liberally construed, that ambiguous laws should be construed in favor of liberty) are a “butcher’s thumb on the scale.” (Justice Scalia’s viewpoints have been strongly followed by a four judge majority on the Michigan Supreme Court. Michigan Supreme Justice Corrigan defended her viewpoint in an article called “Dice Loading” published in the New York University Law Review).

While Supreme Court Justice Breyer’s book Active Liberty has done a far better job of attacking the theoretical theories than I ever could, the biggest problem with the theory in the real world is that it encourages special interest to make promises to the Legislature or the People that they never intend to keep. What is said on the legislative floors stays on the legislative floors. I’ve personally been in Legislative hearings when more than one spokesperson for a bill or an act responds to critics by saying that they never intended the law to apply to “x” scenario and as soon as the bill is passed, litigate for precisely that result.

In many respects, Justice Breyer’s criticisms of textualism mirror the critics of Islamic Literalism. Many literalists clerics preach viewpoints abhorent to all modern standards of civilization and then deny responsibility for their edicts by claiming that this it does not matter what they think, this is what the Koran says and they are merely reading the document literally.

Despite its superficial appeal, textualism is a theory designed to remove morality and humanity from  the law. It ignores the original purpose of judging and permits a return to all of the abuses of yester-year.

More Problems At Detroit Police Homicide Department

The Detroit Free Press and Ann Arbor News reported that a Detroit Police Homicide Detective was under investigation for conning an Ann Arbor family out of $12,000 while conducting the homicide investigation of the family’s son, Joe Wagner. Mr. Wagner was murdered while attending a fair in Detroit. The homicide detective told the family that he needed an alternative source of funding for housing of a witness. The Ann Arbor News article suggests that the FBI was working on the assumption that this statement was false and that the police officer pocketed the money. The Detroit Free Press stated that the officer’s name was Lance Newman and that he had been suspended from the force pending the investigation.

Even assuming the statement was true, however, this conduct is troubling. If the money was paid to the informant through these back channels, it is highly unlikely that this payment was disclosed to the defense. Even more troubling is the apparent continuation of problems in the Detroit Police Homicide Division. The Detroit Police Department only recently agreed to a serious of reforms to try and fix this highly troubled department. In this highly competitive culture of Detroit Police Homicide, there has been an unfortunate belief that the rules do not apply to them. For many years, the Detroit Department has engaged in massive round ups to try and force confessions out of individuals and/or to force witnesses to give statements.

This is not just the opinion of criminal defense attorneys, but the United States Department of Justice as well. Courts, however, continue to turn a blind eye towards their misconduct. Only when courts are willing to focus the judicial light of day on this Department can true reform begin. Additionally when a homicide prosecution is dismissed because of police misconduct, newspapers need to have the courage to run articles with headlines like “Homicide Detective’s Misconduct Destroys Homicide Prosecution,” rather than “Court Dismisses Murder Prosecution on Technicality.”

Welcome to Version 2.0 of CrimApp.Com

Welcome to Version 2.0 of crimapp.com. I started crimapp.com in 2000 using a naked webhosting service and standardized on a format similar to the modern blog. My articles were one to two paragraph summaries of interesting rulings with links to the rulings. Unfortunately, it was difficult to maintain the format with a standard web editor and my basic html. With the coming of blogging software and services, I have decided to scrap the old format and start fresh. In the coming weeks, I intend to focus on important rulings and developments of interest to Michigan practitoners.

Stuart Friedman