Friday, April 18, 2014

Courts Apply New Pot Laws to Past Convictions


Until recently, marijuana has been criminalized in every state, and continues to be illegal at the federal level today.  Colorado’s Amendment 64 and Washington’s Initiative 502 made possession of one ounce of marijuana legal for persons twenty-one or older.  However, both laws failed to comment on whether these laws would apply retroactively.  A recent Colorado Court of Appeals decision held that Amendment 64 is a significant change of law allowing, in the interests of justice, retroactive application.

Tuesday, April 15, 2014

Indigent Defendants and the Role of Their Public Defenders


On March 18, 1963, the Supreme Court held in Gideon v. Wainwright that states are responsible for representing defendants who are unable to afford their own attorneys.  Justice Hugo Black gave the Court’s opinion and stated, "in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth."  This obligation imposed on states stems from the Sixth Amendment, which establishes a defendant’s right to counsel.  It also stems from the due process clause of the Fifth Amendment, which guarantees a defendant’s right to a fair legal process.  Today however, fifty years after Gideon was decided, the quality of legal representation afforded to indigent defendants is concerning in some states. 

Friday, April 11, 2014

Double Jeopardy, Burden Shifting, and Deterrence in Sports’ Personal Conduct Policies


While dozens of professional athletes have been fined, suspended, or subjected to other discipline for misdemeanor and felony convictions, and often merely arrests, Will Chope, a promising twenty-three-year-old mixed martial artist, recently found himself being retroactively disciplined for something he did five years ago.


Chope was scheduled to fight at the UFC Fight Night 38 event in Brazil on March 23, 2014, but his fight was canceled the morning of the bout.  The day before, bleacherreport.com published information regarding Chope’s discharge from the Air Force after he had repeatedly assaulted his then-wife and threatened her with a knife in 2009.  According to the report, Chope received a sentence of five months confinement and a bad conduct discharge.  Although Chope was only one fight into a three-fight contract with the UFC, his fight was canceled and he was released from the contract that morning.  The UFC released this statement:

Tonight's featherweight bout between Will Chope and Diego Brandao has been canceled after UFC officials were made aware of Chope's previous military conviction. The UFC does not condone behavior of this nature whatsoever and Chope has been released from his contract.

Tuesday, April 8, 2014

Jury Nullification: A Constitutional Tool for Defense Attorneys or Anarchy Incarnate?

Controversy follows jury nullification everywhere in criminal law.  The power that a jury has to refuse convicting a defendant, even when the prosecution has provided evidence beyond a reasonable doubt, understandably does not bode well with many judges and prosecutors.  Jurors have the power to nullify because courts cannot overturn a not guilty verdict since this would violate a defendant’s constitutional right to a jury trial.[1]  During O.J. Simpson’s trial, discussion of jury nullification stood at the forefront as Simpson’s defense attorney encouraged the jury to acquit Simpson even if they found him to be guilty so the jury could send a message to the Los Angeles Police Department.[2]  Nullification has also appeared in cases where prosecutors charge abused wives for the murder of their abusive husbands, in cases where minors are involved in drug possession or distribution of narcotics.[3]  The question of nullification appeared in other high profile cases, like the case of former D.C. mayor Marion Barry.  Barry was convicted of only one minor count out of the fourteen charges against him by an African-American jury when he was caught on tape smoking crack cocaine, even though the trial judge in that case commented that the prosecutor has a very strong case against him.[4]

Friday, April 4, 2014

All Felonies are Serious Offenses: Ninth Circuit Upholds California DNA Collection Law


In October of last year, I wrote “Buccal Swab ‘Booking Procedures’: Lower Courts Struggle to Apply Maryland v. King,” a blog post outlining some potential problems with the reasoning in Maryland v. King, the landmark DNA collection case handed down by the Supreme Court last June.  At the time, I focused on federal district court interpretations of King, but appeals courts have also begun ruling on these cases.  On March 20, 2014, the Ninth Circuit, sitting en banc, issued an opinion in Haskell v. Harris upholding California’s broad DNA Collection Act.


Tuesday, April 1, 2014

Kevin Martin: Innocent.

Kevin Martin
In order to ensure justice and credence in our legal system, a series of checks and balances are in place.  Nowhere are these checks and balances so essential than in the criminal justice system.  In 1982, a seventeen-year-old boy named Kevin Martin was sent to prison for over twenty-six years for a rape homicide that he did not commit based on misrepresented FBI hair analysis.  Although Mr. Martin’s claim to innocence has finally been publically and scientifically acknowledged, there are still many questions left unanswered.

Friday, March 28, 2014

Prosecutorial Discretion: When Is Enforcement Discriminatory?

Dinesh D'Souza
In criminal law, those accused of wrongdoing typically claim innocence and maintain that they have done nothing wrong.  But what about when an individual admits to the crime itself while arguing that the enforcement of the specific law against him is discriminatory in nature?

Tuesday, March 25, 2014

Guest Post: 5 Reasons Why Rape Victims Struggle for Justice


Throughout history rape has been recognized as a crime, although criminal codes – and the very definition of rape – have varied from culture to culture and from one era to another.  Whether rape victims get justice has always depended upon where (and when) they lived.  In the modern-day United States we like to think we are relatively enlightened in this regard.  We have the advantage of heightened educational and legislative efforts over the past forty years, driven largely by the feminist and human rights movements. Groundbreaking books such as Susan Brownmiller’s classic 1975 work, Against Our Will: Men, Women and Rape, explored the dynamics of rape.  Contrary to the subtitle, Brownmiller’s book tackled not just male-on-female rape, but also homosexual rape (particularly in prisons) and the sexual assault of children.  The net result of four decades of education is that attitudes and laws are more protective of the victims than they used to be, at least in the U.S. and many other First World countries.