Law Commons^™

Should Brian Nichols Be Tried In A Federal Court?, Ronald Carlson, Donald E. Wilkes

Popular Media

Although Brian Nichols has been sentenced in state court to a total of 485 years of imprisonment, the question has been raised whether he should subsequently be tried in federal court for the murder of an off-duty U.S. Customs agent. Prof. Carlson argues in the affirmative, while Prof. Wilkes finds the suggestion "stupendously stupid."

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The Price Of Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

The Writ Of Habeas Corpus In Georgia, Donald E. Wilkes Jr.

Popular Media

Lauded as "the Great Writ" and praised as "one of the precious heritages of Anglo-American civilization," the legal writ of habeas corpus marvelously triggers a judicial proceeding in which courts may release individuals from unlawful restraints on their liberty. Indeed, this writ has been a part of Georgia law even prior to the creation of the United States. Today Georgia habeas corpus proceedings commonly involve pretrial confinement on criminal charges, detention in a mental health facility, extradition and postconviction cases. Some of these habeas decisions have even taken on human rights landmark status.

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

Scholarly Works

Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

Defending The Right Of Self-Representation: An Empirical Look At The Pro Se Felony Defendant, Erica J. Hashimoto

Scholarly Works

Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right of self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon …

Book Review: The I Chong: Meditations From The Joint (2006), Donald E. Wilkes Jr.

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Book Review of THE I CHONG: MEDITATIONS FROM THE JOINT, by Tommy Chong (NY: Simon Spotlight Entertainment, 2006).

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

Defending The Right To Self-Representation: An Empirical Look At The Pro Se Felony Defendant, Erica J. Hashimoto

Popular Media

Assistant Professor Erica Hashimoto outlines her research on why felony defendants should continue to have the constitutional right to represent themselves.

International Law And Rehnquist-Era Reversals, Diane Marie Amann

Scholarly Works

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …

Habeas Corpus And Baseball, Donald E. Wilkes Jr.

Scholarly Works

In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play in Chemung County, …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto

Scholarly Works

The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …

Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Miranda And Reasonableness, Peter B. Rutledge

Scholarly Works

Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

Apprendi, Blakely And Federalism, Peter B. Rutledge

Scholarly Works

The Clark Y. Gunderson Lecture is a memorial to a man who devoted his life to legal education and spent thirty years teaching at the Law School. It is supported by a trust fund in the University of South Dakota Law School Foundation established principally by Colonel Gunderson's family. Professor Rutledge delivered the 2004 Gunderson Lecture at the Law Review's Symposium on Sentencing and Punishment, which took place at the Law School on November 5, 2004. What follows is an adapted version of Professor Rutledge's lecture.

Fifteen Famous Supreme Court Cases From Georgia, Dan T. Coenen

Scholarly Works

John Inscoe, UGA professor of history and editor of the New Georgia Encyclopedia, invited Hosch Professor Dan T. Coenen to contribute a series of essays on the most significant U.S. Supreme Court cases that originated in the state of Georgia. This article, which proposes an unranked top 15 list, is built on this work.

Comment, Time For A Legislative Change: Florida's Stagnant Standard Governing Mental Competency For Execution, Elizabeth Chamblee Burch

Scholarly Works

No abstract provided.

Apprendi And Federalism, Peter B. Rutledge

Scholarly Works

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.

This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders, particularly …

Explosive Dynamic Entry: The Increasing Militarization Of The Police Makes Citizens Into Enemies, Donald E. Wilkes Jr.

Popular Media

At 6 a.m. on Friday, May 16, 2003, 57-year old Alberta Spruill was in her residence, Apartment 6F at 310 W. 143rd Street in the Harlem Section of New York City, preparing to leave for work. Spruill, a quiet, church-going woman, was a municipal worker, employed at the Division of Citywide Administrative Services. She had been a city employee for 29 years, and each weekday would take the bus to her job. To her, that Friday morning must have seemed like the beginning of just another ordinary day. She mercifully did not know that she would never again head for …

A Little Bit Of Shooty Face, Donald E. Wilkes Jr.

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The Wall Street Journal, citing unnamed government sources, recently revealed that American intelligence agents and law enforcement officials stationed in Afghanistan and at Guantanamo Bay have been authorized to use “a little bit of smacky face” to make prisoners talk during interrogation. “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your duty,” one anonymous U. S. official was quoted as saying. Americans were assured, however, that the face-slapping of prisoners to induce them to talk was nothing to worry about. There would be no revival of the third degree for persons arrested on …

Sneak And Peak Search Warrants, Donald E. Wilkes Jr.

Popular Media

In his recent article "Taking Liberty with Freedom," author Richard P. Moore reminds us that the USA Patriot Act, signed by President Bush last Oct. 26 in the wake of the Sept. 11 terrorist attacks, "gives the government the kind of sweeping powers of arrest, detention, surveillance, investigation, deportation, and search and seizure that ... assault ... our most basic freedoms."

I want to examine here a single section of the USA Patriot Act--section 213, definitely one of the most sinister provisions of this monstrous statute.

Federal Guilty Pleas Under Rule 11: The Unfilled Promise Of The Post-Boykin Era, Julian A. Cook

Scholarly Works

Rule 11 of the Federal Rules of Criminal Procedure governs perhaps the most essential and common practice in the federal criminal justice system--the guilty plea. Despite the public's focus on the excitement and drama engendered by real and fictional criminal trials, the overwhelming majority of criminal matters reach a negotiated resolution. Indeed, the importance of the guilty plea to the judiciary, prosecutors, and even defense attorneys cannot be overstated. Without guilty pleas, the criminal justice system would malfunction; the system is simply incapable of accommodating the constitutional exercise of a defendant's trial right in each instance.

The federal plea process …

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

Should An Effective International Criminal Court Have Primacy Or Be Complementary To National Courts? An Analysis Of Concurrent Jurisdiction In The Ad Hoc Tribunals And The Rome Statute, Godwin Yenika Fonye

LLM Theses and Essays

Concurrent criminal jurisdiction depicts a scenario where two or more judicial systems have the legal capacity to investigate, prosecute and punish an accused person for the same criminal acts under their respective, separate jurisdiction. This usually occurs between sovereign states. In the realm of crimes under international law, the distinguishing characteristic is the universal jurisdiction that is conferred on all States to prosecute and punish the perpetrators of such crimes. The "cumulative effect of these different principles of jurisdiction sometimes is to vest multiple states with concurrent jurisdiction to prosecute a given crime. This paper would attempt to analyze the …

Calling Children To Account: The Proposal For A Juvenile Chamber In The Special Court For Sierra Leone, Diane Marie Amann

Scholarly Works

In a unique proposal to the United Nations Security Council, U.N. Secretary-General Kofi Annan recommended that a Juvenile Chamber of the Special Court have authority to try defendants as young as fifteen. The plan sparked immediate controversy. Sierra Leoneans wanted the worst perpetrators punished regardless of age, while human rights organizations argued that juvenile prosecutions would weaken rehabilitative efforts. The Security Council subsequently diluted the proposal; nevertheless, it merits examination, given the increasing use, in Africa and around the world, of children in combat.

Spotting Money Launderers: A Better Way To Fight Organized Crime?, Diane Marie Amann

Scholarly Works

Money laundering investigations have been much in the news of late. There have been stories that Radil Salinas de Gortari laundered kickbacks from drug traffickers while his brother was President of Mexico. That Ferdinand Marcos stashed nearly half a billion dollars in Swiss banks while he ruled the Philippines. That two of Mexico's largest banks have pleaded guilty to laundering charges stemming from a controversial U.S. sting operation. That the former prime minister of Ukraine pleaded guilty to Swiss charges that he laundered $9 million in stolen funds, even as he faced U.S. charges of laundering $114 million. And, of …

Entrapment When The Spoken Word Is The Crime, James F. Ponsoldt, Stephen Marsh

Scholarly Works

The task of this Article is to assess the competing approaches that circuit courts have taken in defining the predisposition element in entrapment cases. It then attempts to try to reconcile them, not only with Jacobson v. United States, but also with policy concerns underlying the rest of the Supreme Court's entrapment jurisprudence, particularly in light of the increased politicization of federal criminal law through investigations of public officials' conduct by independent counsel. This Article will first frame the central issue, the supplementary mens rea requirement arising in entrapment cases. Part II then will review the common law development …

The Relationship Between The International Criminal Court And The International Community, Khaled M. Ahmed

LLM Theses and Essays

Due to the fact that no work of this size could address every aspect of the Rome Statute, this study is limited to the provisions of Parts 2, 9, and 10 of the Rome Statute. These provisions cover all matters being on the relationship between the Court and states, in general, and especially the obligations of states parties under the Statute. The first chapter will examine the historical journey toward an international criminal court, beginning with World War I, continuing throughout the twentieth century and ending with the adoption of the Rome Statute in the Diplomatic Conference in Rome on …