Thursday, September 11, 2014
In conducting some last-minute update research on a forthcoming article (here) on the legal ethics of real evidence (and the potential use of obstruction of justice statutes to punish a lawyer for zealous representation of a criminal defendant), I came across the "Brief for Eighteen Criminal Law Professors as Amici Curiae" in the pending Supreme Court case of Yates v. United States, No. 13-7451.
Yates is the case in which creative federal prosecutors applied the new "anti-shredding" provision in the Sarbanes-Oxley Act to prosecute a fisherman for anticipatory obstruction of justice because he tossed some under-size fish overboard (rather than bring them back to the dock) after a Florida fish and wildlife officer had cited him for a civil violation.
The statute punishes those who knowingly destroy or conceal “any record, document, or tangible object” with the intent to impede an investigation within the jurisdiction of a federal agency. In prosecuting the fisherman and now before the Supreme Court, the federal government argues that the three red grouper fish were a "tangible object." The fisherman's lawyer, and the amicus brief above, argue that "tangible object" should be understood in the context of "record" and "document" to mean such things as hard-drives, flash-drives, computer diskettes, etc. which can record information.
What especially struck me about the brief, which was filed on behalf of a member (Rick Garnett) and several friends of the Mirror of Justice, was its powerful indictment of overcriminalization -- together with the sad decline of wise use of prosecutorial discretion. Below is the key discussion of this matter from this thoughtful and well-written brief:
Today’s federal criminal code would be profoundly troubling to the Founders. As James Madison wrote in FEDERALIST NO. 62, “[i]t will be of little avail to the people * * * if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood[.]” Yet these words provide an apt description of today’s U.S. criminal code. As one commentator puts it, the federal criminal “code” is a “haphazard grabbag of statutes accumulated over 200 years”—it is “incomprehensible, random and incoherent, duplicative, ambiguous, incomplete, and organizationally nonsensical.” Julie O’Sullivan, The Federal Criminal “Code” is a National Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 643 (2006).
Neither prosecutors nor their targets can plumb the depths of this criminal law. Federal law addresses conduct ranging from unquestionably serious crimes (e.g., 18 U.S.C. § 2381 (treason)), to trivial ones (e.g., id. § 711 (unauthorized reproduction of “Smokey Bear”)). As one well-known jurist has observed, “most Americans are criminals and don’t even know it.” Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43, 44–45 (Timothy Lynch ed., 2009).
To be sure, U.S. Attorneys cannot (and would not) enforce every one of these provisions every time it was violated. For those who do get prosecuted, however, the circumstances are grim. The vastness of the federal code and the breadth of myriad statutes provide the imaginative prosecutor with near-endless permutations of crimes to charge. Exercising prosecutorial discretion has evolved “from an exercise of wisdom to a selection of weaponry.” Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 1445 (2012).
* * *
According to recent estimates, U.S. law contains 4,450 criminal provisions. . . . Now add to this expansive body of criminal statutes a mountain of federal criminal regulations. According to one estimate, there are now more than 300,000 federal regulations that may trigger criminal sanctions.
Still worse, many of these regulatory offenses pro-scribe conduct that is malum prohibitum—i.e., conduct that is wrong only because it is prohibited. Everyone knows that it is immoral to kill, rape, or steal. The same cannot be said, however, of importing non-veneered ebony wood from India, snowmobiling into a national forest in the midst of a blizzard, or saving a bird from the clutches of a hungry cat. Yet as Gibson Guitar Corp. IndyCar champion Bobby Unsar, and11-year-old Skylar Capo found out, the Government has no qualms about prosecuting such behavior. As these heavy-handed prosecutions show, the vast ocean of regulatory crimes—including many offenses that are “wrongful only because [they are] illegal”—threatens to “allow punishment where ‘consciousness of wrongdoing be totally wanting.’” Stephen Smith, Overcoming Overcriminalization, 102 J. CRIM. L. & CRIMINOLOGY 537, 538 (2012) (quoting United States v. Dotterweich, 320 U.S. 277, 284 (1943)).
2 See C. Jarrett Dieterle, Note, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 GEO. L.J. 1279, 1284–86 (2014) (summarizing the prosecution of Gibson Guitar Corp. under the Lacey Act, 16 U.S.C. §§ 3371 et seq.).
3 Reining in Overcriminalization: Hearing Before the Sub-comm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21–35 (2010) (statement of Robert “Bobby” Unser, detailing his prosecution under 16 U.S.C. § 551 and 36 C.F.R. § 261.16 for unintentionally entering a national forest with a snowmobile during a blizzard).
4 Girl saves woodpecker, but her mom fined $535, CBS NEWS, Aug. 4, 2011, available at http://www.cbsnews.com /news/girl-saves-woodpecker-but-her-mom-fined-535/ (re-porting the citation of an 11-year-old child under the Migratory Bird Act, 16 U.S.C. §§ 703 et seq., for saving an endangered woodpecker from being eaten by the family cat). The charges were dropped after an international outcry over the incident.
In short, the ever-expanding breadth and redundancy of the federal statutory and regulatory crimi-nal “code” threatens to create, in the words of the late Bill Stuntz, “a world in which the law on the books makes everyone a felon.” William Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 511 (2001).
Tuesday, August 19, 2014
A couple of months ago, I posted up a brief message on the publication of my first novel, Marital Privilege, by North Star Press. I promised to post something more about it a few days later, but the summer got away from me, with launch party, book signings, distributions to incoming St. Thomas law students, and of course multiple other scholarly and professional projects. But now is a good time for me to follow up, as the novel is now available on Kindle at Amazon and on the Nook at Barnes&Noble.
The lead character in Marital Privilege is a law professor, and, while I should warn sensitive readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy. A distinctly Catholic sensibility will be found throughout the story.
Here is the back cover description:
Candace Klein is one of the lucky ones in her professional life, finding genuine meaning in her work as a law professor. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father.
Suffering the horrific loss of her child in a car bombing, Candace grieves and seeks solace in her faith. Then a politically-climbing prosecutor, Robby Sherburne, takes control of the criminal investigation and promises the death penalty for a child-killer. Meanwhile, Ed Burton, a suburban cop, simply tries to follow the evidence where it leads.
When her husband becomes the target of the investigation, Candace asserts the “marital privilege” and refuses to cooperate. This ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.
More information about the novel can be found here.
Friday, August 15, 2014
A Second Court Victory in a Week for the Dignity of Prisoners (and for the University of St. Thomas and University of Arkansas Clinics)
For I was ill and you cared for me, in prison and you visited me. Matthew 25:36
A couple of days ago (here), I was delighted to report a victory for a prisoner’s right to confidentiality in correspondence with his attorney in a published Ninth Circuit decision (here). Scott Nordstrom, a death row inmate whose legal mail was read when he was challenging his conviction, was represented by the University of St. Thomas Appellate Clinic, which I supervise.
Just three days after that decision, the Ninth Circuit affirmed the human dignity of prisoners again in another case involving our UST Appellate Clinic, in which the lead was taken by our partners at the University of Arkansas Federal Litigation Project supervised by my colleague Professor Dustin Buehler and which was argued to the court by students (now graduates) Mason Boling and Lauren Murphy.
In Colwell v. Bannister (decision here), a prisoner who had suffered from blindness in one eye due to cataracts for a decade challenging the prison’s refusal to grant surgery despite the recommendations of his doctors. Yesterday, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections.
In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”
Tuesday, August 12, 2014
A Victory for Confidentiality in Prisoner Legal Correspondence With Lawyers: University of St. Thomas Appellate Clinic
For I was in prison and you visited me. (Matthew 25:36)
As lawyers, we have the opportunity and means not only to follow Christ’s call to visit those in prison but to use our privileged access to the legal system to directly assist those in prison, by seeking to overturn wrongful convictions, by challenging unjust and excessive sentences, and by working to uphold the dignity of the “neighbor” who is subject to incarceration.
As lawyers who work regularly with prisoners are painfully aware, it is always an uphill battle to present a prisoner’s plea to a court. But as a testament to the ever-present (if sometimes seemingly dormant) potential for genuine justice in our court system, a deserving prisoner does win one, at least once in a while.
So I am delighted to report a victory in the Ninth Circuit yesterday for the basic right of prisoners to correspond with their lawyers without such legal mail being read by prison officials — a success attributable to the persistence of a death row inmate, Scott Nordstrom, and to the legal representation we were able to provide him through the University of St. Thomas Appellate Clinic.
Consistent with our Catholic social justice mission at the University of St. Thomas, we’ve established an Appellate Clinic in which I work with a team of students to provide pro bono representation to pro se parties in federal appellate litigation. Over the past year, Michelle King and Joy Nissen Beitzel, now recent graduates of the law school, have been working with me on a case involving an Arizona death row inmate, Scott Nordstrom, who challenged the prison’s policy and practice of reading inmate correspondence with attorneys. We were supported in this effort by our partners at the University of Arkansas Federal Appellate Litigation Project: Professor Dustin Buehler and students Mason Boling and Lauren Murphy
Friday, August 1, 2014
No nation's unity, cohesion and feeling of being at peace with itself can be taken for granted, even ours. They have to be protected day by day, in part by what politicians say. They shouldn't be making it worse. They shouldn't make divisions deeper.
In just the past week that means:
The president shouldn't be using a fateful and divisive word like "impeachment" to raise money and rouse his base. He shouldn't be at campaign-type rallies where he speaks only to the base, he should be speaking to the country. He shouldn't be out there dropping his g's, slouching around a podium, complaining about his ill treatment, describing his opponents with disdain: "Stop just hatin' all the time." The House minority leader shouldn't be using the border crisis as a campaign prop, implying that Republicans would back Democratic proposals if only they were decent and kindly: "It's not just about having a heart. It's about having a soul." And, revealed this week, important government administrators like Lois Lerner shouldn't be able to operate within an agency culture so sick with partisanship that she felt free to refer to Republicans, using her government email account, as "crazies" and "—holes."
All this reflects a political culture of brute and mindless disdain, the kind of culture that makes divisions worse.To call ourselves political leaders would be to flatter ourselves and over-estimate the influence of the Mirror of Justice. Nonetheless, we too need to be conscious of the effect that incivility in the "blogosphere" -- and especially the too easy attribution of malice and bad motives to others -- weakens the civil ties that can and should still bind us and that are necessary to any meaningful work toward the common good.
Thursday, July 24, 2014
With a new cover of the song being highlighted on a recent episode of “Under the Dome,” I was reminded again of the truly counter-cultural the lyrics for the late-Sixties era classic “Who’ll Stop the Rain” written by John Fogerty and performed by Creedence Clearwater Revival.
Lest we mistakenly remember the Sixties counter-cultural movement as uniformly liberal and infatuated with big government as the social justice answer, “Who’ll Stop the Rain” includes this pointed observation:
Caught up in the fable, I watched the tower grow
Five year plans and new deals wrapped in golden chains
The song warns that government promises seldom come without strings attached and government-centric solutions often have negative consequences that may not be anticipated. Attempting to solve social problems through entitlement programs risks the interposition of impersonal bureaucratic agencies and expanding government special interests, while trapping recipients in dependency and obliged to comply with government rules mandates that reflect the different moral ethos of the elite. One need not eschew all government programs (and I certainly do not) to believe that “Who’ll Stop the Rain” is healthy reminder that the rose may have thorns.
Now the song could be characterized as libertarian in nature, and Fogerty last year acknowledged that he’s “probably a lot more like some kind of libertarian or something.” But I also hear something decidedly spiritual in the first verse of the song — a reference to the age-old search for greater meaning and truth:
Long as I remember rain’s been comin’ down
Clouds of mystery pourin’ confusion on the ground
Good men through the ages tryin’ to find the sun
And I wonder, still I wonder who’ll stop the rain
While the singer of this song is certainly weary, the hope of noble people to find the sun remains — a hope that we as Catholics place in a person, not in a political messiah.
For those who wish to reminisce and those for whom this song is new, you can listen to the original recording here (with the standard YouTube license).
Saturday, July 19, 2014
A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile. The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.
All 290 passengers on the airliner died. As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.
No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people. Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life. Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.
To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident. The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran. Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path. The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).
But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information. Each was the result of an atrocious error by an irresponsible military force. The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.
Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world. Nor was the Iran Air 655 tragedy in 1988 the only other such episode. In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.
We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians. A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace. The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone. Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.
A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed. Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes. Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.
We live in a broken world. A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset. Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.
Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.
Wednesday, July 9, 2014
As one who for decades has favored a vision of corporations (and corporate law) as being utterly conducive to serving broad social purposes -- as freely determined, of course, by the appropriate corporate decisionmakers -- and as one who supported Hobby Lobby, I found it odd to see these companies opposed by so many corporate progressives. . . .
To those on the right who favored Hobby Lobby (me) but who also favor the now-discredited position that corporate law requires profit maximizing (not me) take note: you won the battle on religious freedom but to do so you had to suffer a major setback on corporate purpose.
Monday, July 7, 2014
As I blogged back in April (here), the centuries-old American debate about the right size and proper role of government will carry forward for decades into the future, despite occasional nonsense from pundits that this or that political win for this or that set of politicians means that this or that side of the political spectrum would be forever banished into the political wilderness.
Those of us on the Mirror of Justice who are motivated in our public activities by faith and who share a Catholic understanding of the human person in community vary greatly on our evaluation of the wisdom of and the acceptable extent to central government programs to advance the common good. So too the general American public remains divided and insists on preventing one or the other viewpoint from dominating the political landscape for too long.
When President Obama was first elected in 2008, together with large Democratic majorities in both houses of Congress, many believed the stage was set for a new progressive era as conservative views about limited government receded into the past. But, as shown by the 2010 congressional elections and President Obama's thin 51-percent reelection, the charisma of liberty and skepticism about the competence (and moral legitimacy) of government mandates has sent the pendulum swinging hard to the other side yet again. As Marc Theissen writes in today's Washington Post:
"According to a December Gallup poll, the number of people who say that 'big government' is the greatest threat to the country has risen from 55 percent when Obama took office to 72 percent today — the highest that number has ever been in 50 years of polling. For the next quarter century, whenever a liberal politician proposes some new, big-government program, all conservatives will have to say to discredit it is: 'It’s just another Obamacare.'”
Of course, as I suggested earlier, this too shall pass — although the clunky implementation of Obamacare will have lasting implications (for at least a couple of election cycles). Even if Republicans win big this fall (and I'm still dubious that the huge shift of six Senate seats can be accomplished), and even if Republicans should take the White House again(an even bigger "if"), they too will make mistakes and overreach. At some point in the future, the pendulum will sweep back in the other direction.
While the swing of the pendulum will never stop altogether, Catholic public thinkers might be able to escape the back-and-forth by looking for ways to transcend old political divisions and trying to find ways to more "smartly" join governmental policies and public environments with social and religious organizations to enhance human thriving. By doing so, we may not only make the world (or at least our neighborhood) better but also strengthen the case once again for religious freedom and the plurality of initiatives that such freedom brings.
Wednesday, July 2, 2014
In the separate concurrence in McCullen v. Coakley, Justice Scalia joined by Justices Kennedy and Thomas, wrote:
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.
As many commentators, both here on the Mirror of Justice and elsewhere have written, the political divide on the Hobby Lobby case illustrates what Paul Horwitz calls “the collapse of a national consensus on a key element of religious liberty: accommodation.” Here too, abortion or “reproductive rights” have been central to creating that fault line between progressives and conservatives on religious liberty.
All of this can be traced back to the horrific error made in Roe v. Wade more than forty years ago.
In words parallel to the McCullen concurrence, I had this to say several years ago about Justice Blackmun’s jurisprudence:
Nor was the distorting effect of Justice Blackmun’s preoccupation with abortion and the Roe decision manifested only on the subject of the basis, definition, scope, and precedential preservation of the abortion right. As a jurisprudential black hole that drew in and deformed everything that came near its wandering path through spacetime, Roe’s gravitational pull collapsed Justice Blackmun’s approach to every area of law into a pro-abortion singularity including questions of standing to sue, standards of appellate review, and freedom of expression. Justice Blackmun decided every question on the periphery of the abortion controversy in the manner that most aggressively promoted ever-expanding abortion rights while simultaneously contracting the rights of those who protested abortion and the power of the states to restrain the abortion license.
Sadly, the reckless and destructive path of Roe v. Wade through the American legal landscape is likely to continue.