Criminal Procedure : Week of 19 February 2008

February 19

• Problem 5
  1. Grant. The statute says that you may charge any and all crimes supported by the evidence. The court is unlikely to interfere with your exercise of that discretion. It doesn't mean that he'll get consecutive sentences. Most judges will not overrule a joint sentencing recommendation, but they may ask why it is so.
  2. Jason. One guy wants to know if he's got a prior record. Seems reasonable to ask whether there is real mental pathology here. If not, why would I want this behavioral treatment for him, when I could give it to someone else who might actually need it? Even if he is a compulsive thief, how good is this treatment program? Will he offend again? If so, what then? Interesting thought: the defense lawyer's interest is served if he goes to the treatment program, but if he re-offends, and the sentence is executed, he goes to jail.
  3. Elaine. Wait a second... it's sort of odd what she's done... maybe she's got a compulsive side. Are we going to be able to prosecute her if JC Penney doesn't want to testify? What about talking to the police chief: Is she a valuable member of the force, or is she a rotten apple? Do the police have help for officers who act out in surprising ways?
  4. Graham. Doesn't look like an intentional taking of property. There's no "reckless taking of nails" crime. Maybe this is not really a fit matter for the criminal law: what can the DA's office do about this jerk? Probably nothing.
  5. Forest. Skipped.
  6. Sam, Harry, and Tom.

20 February

• Alford plea: I'm not admitting a thing, but I present myself for your sentence. It has some interest in civil litigation.
• Problem 4. The minister. If you know your client is a compulsive pedophile (do you know this?) then it's your job not to put the client in a position where he'll re-offend. Also, you want to know what an investigator knows about your client (the opposition is surely doing this). But how much of his money can/should you spend investigating? Who would you talk to, and why?
  • It's a crime for the lawyer to put on evidence that he knows to be false.
  • More importantly, perjury doesn't work
  Note that the distinction between means and objectives is not clear.

  OK, now the DA. Do we believe the child? We did enough to charge. Would the DA want prison with this degree of uncertainty? Now, with the witness moving away, are you obligated to tell the defense? This isn't like concealing mitigating or exculpatory evidence. One of the things you can get from conviction is guardianship (remember the triangle): you can have protection against a person doing stuff, and you can have some intelligence about their activities.

  As a judge, maybe you wouldn't want someone leaving the state, if they should be supervised. Maybe you won't accept the plea for this reason.

  • The decision to charge: grand jurie, john doe hearings, etc. These are potentially good evidence-gathering tools, but they are rarely used for actual charging. That's usually the DA.
  • The ABF research cited in Remington's article: It's hard to know what is going on in the US criminal justice system. So the American Bar Foundation launched a massive program to investigate (in the 70's) and try to understand it better.

    How come Detroit has so many daytime burglaries? Because night-time carries a mandatory sentence, and we don't need stiff sentences, so we only charge day-time.

    The shape of the statute, therefore, shapes the prosecutor's power. The power itself is lawless, but there is law over it.

  21 February

  • The power NOT to prosecute includes the power not to prosecute based on some condition. (i.e., if you don't seek treatment, go to school, get a job, etc., we will prosecute). This is not a formal disposition of the case, but it does happen, sort of under the radar. This is "diversion." As a defense lawyer, you need to consider how likely it is that your client will complete the whole of his "diversion" conditions. In some programs, it turns out that diverted folks wind up doing more jail time than the ones who failed their diversion: prosecution is more severe on people who don't live up to their end of the bargain. (note that defense attorneys sometimes think "if my client doesn't go to jail from court, it's a win," without really considering the likely long-term outcome). (prosecutors, on the other hand might not agree to diversion in cases where they felt they were likely to get a conviction). So who is going to put money into diversion programs (e.g., treatment), if the likely outcome is this?
  • So we need to ask what the interests of the decision-makers is. Judges want to clear their calendars. Defense attorneys want to win. Prosecutors want convictions.
  • Genuine diversion does not involve a plea of guilty (there are such programs).
  • Diversion programs can be improved by attention to which crimes are the best fit (interventions in cases where the disposition is likely to result in real jail time, types of intervention, etc.).
  • US v. Batchelder and State v. Karpinski. Cases where the same conduct is prohibited by two rules.
  • Selective prosecution is a tricky issue. State v. McCollum. Prior to this, we've seen very little restraint on the prosecutor's discretion. This will be important when we study Barman.