Courts Commons^™

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …

"Reasonably Predictable:" The Reluctance To Embrace Judicial Discretion For Substantial Assistance Procedures, India Geronimo Thusi

Articles by Maurer Faculty

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. …

Mediating Cases Involving Domestic Violence: Solution Or Setback?, Aimee Davis

Cardozo Journal of Conflict Resolution

This Note will first explore the psychological and social aspects of domestic violence. It will then examine the appropriateness of mediation for such cases, exploring viewpoints on the topic. Lastly, the Note will propose a standard to guide cases involving domestic violence. Although the victim should always have the final word on whether to mediate, a judge, psychologist, and mediator should collaborate and make a united recommendation as to how they suggest the victim should proceed. This will allow the victim to make a thoughtful and individualized assessment of her situation.

The Supervisory Power Of The Supreme Court, Amy Coney Barrett

Journal Articles

Relying on something it calls supervisory power or supervisory authority, the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court's exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III's grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. When the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. More than a reference to every court's …

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

Boys Will Be Boys: A Social Control Approach To Assessment Of Gender-Based Sentencing Disparity In Norfolk Circuit Court Cases, Fay F. Spence

Sociology & Criminal Justice Theses & Dissertations

This study evaluated the relationship between gender and sentencing severity for defendants convicted of violent crimes, victimless crimes, and theft crimes in Norfolk Circuit Court during 2001 and 2002. Based upon social control theories, the author hypothesized that women receive harsher penalties than men for violent crimes and victimless crimes, but that men receive harsher penalties for theft crimes. To test these hypotheses, the author relied, in part, upon data collected by the Norfolk Commonwealth Attorney's office on 3368 criminal cases filed in 2001 and concluded by May 22, 2002. After eliminating cases not pertinent to the study, the data …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

An Honest Approach To Plea Bargaining, Steven P. Grossman

All Faculty Scholarship

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

How Panels Affect Judges: Evidence From United States District Courts, Ahmed E. Taha

University of Richmond Law Review

Recent research has shown that judges on panels decide cases differently than they do individually. Understanding these panel effects is essential to understanding and predicting judicial behavior. This Article uses a unique naturalexperiment, and interviewsof United States district court judges who participatedin this ex-periment, to empirically investigate panel effects. Specifically, in fourteen district courts the judges chose to sit in an en banc panelto decide the constitutionalityof the FederalSentencing Guide- lines; in fifty-three other districts, the judges decided the issue in- dividually instead. This Article compares the decisions and the characteristicsof these districts to study how panels affect judicialdecision making …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

The Role Of Courts In Preventing International Child Abduction, Deborah M. Zawadzki

Cardozo Journal of International and Comparative Law

The note argues that international child abduction is a growing issue exacerbated by globalization, with existing legal frameworks like the Hague Convention and the International Parental Kidnapping Crime Act (IPKCA) proving insufficient to address the problem. It advocates for a more proactive role for U.S. courts in preventing abductions through legislative support and comprehensive preventative measures, emphasizing the need for state-level reforms, such as Texas’s H.B. 1899, to fill gaps in current laws and protect children at risk

Interrogation Warrants, Russell D. Covey

Cardozo Law Review

No abstract provided.

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Jury Trials In Japan, Robert M. Bloom

ExpressO

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

Reconsidering Absolute Prosecutorial Immunity, Margaret Z. Johns

BYU Law Review

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

The Crime Victim's Right To Attend The Trial: The Reascendant National Consensus, Douglas Evan Beloof, Paul Cassell

Utah Law Faculty Scholarship

This article contends that crime victims should have an unequivocal right to attend a criminal trial, even in cases where they will be called as witnesses. A victim's right to attend trial has strong historical support, as at common law victims attended trial as private prosecutors. More recently, crime victims' rights legislation passed in the majority of states recognizes the victim's right to attend. Nothing in the Constitution prevents victims from attending trial, and strong public policy reasons support such an approach. Observing the trial can have import therapeutic and other benefits for victims. Any risk of prejudice to a …

Plea Bargaining At The International Criminal Tribunal For The Former Yugoslavia, Ralph Henham, Mark Drumbl

Scholarly Articles

The International Criminal Tribunal for the former Yugoslavia (ICTY) increasingly has turned to plea bargains to resolve the cases before it. A number of factors motor this trend. One is administrative: the ICTY has been subject to considerable pressure from the United Nations Security Council and donor states to accelerate its work. Another is the desire to obtain acknowledgements of responsibility from perpetrators. Moreover, there is concern that, as time passes, the memories of witnesses dim. The rigours of direct and cross-examination may retraumatise those who have survived mass atrocity. ICTY judges also have expressed their understanding that guilty pleas …

The Ictr And Justice For Rwandan Women, Mark A. Drumbl

Scholarly Articles

In this article, I hope to spring from the discussion of the ICTR's gender jurisprudence to a broader conversation that touches on the relationship between this jurisprudence and life for Rwandan women today. In particular, I'd like to consider three questions: What do both the gender jurisprudence and the jurisprudence at large of the ICTR mean to women, individually and collectively, in Rwanda? How do other modalities of accountability that operate in postgenocide Rwanda respond to gender violence and promote gender equality? What is the situation of Rwandan women today?

Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz

Law Faculty Scholarship

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who …

Juror Bias Is A Special Problem In High-Profile Trials, Valerie P. Hans

Cornell Law Faculty Publications

Scott Peterson's jury convicted him and sentenced him to death. Whether he had a fair jury is a question that the appellate courts will confront as they review Peterson's appeal of his conviction and sentence. Would the jury have reached the same decisions if the case had not been so extensively covered in the media? Or was Scott Peterson condemned by media publicity? Whatever your verdict, the Peterson trial provides yet another example of the hurdles to fair trials in high-profile cases.