double jeopardy – Overlawyered

Crime and punishment roundup

Walter Olson — Mon, 20 Jan 2020 11:03:51 +0000

Three episodes of the Cato Daily Podcast, all with Caleb Brown: “A Survey of State-Level Criminal Justice Reform” with Robert Alt of the Buckeye Institute; “Reforming Parole and Probation” with Marc Levin of the Texas Public Policy Foundation; “Getting Honest on Bail Reform” with Josh Crawford of the Pegasus Institute;
In news of unconstitutional legislation, the lawmakers of Monroe County, N.Y. (Rochester) want to make it illegal to “annoy” a police officer [James Brown, WXXI, Eugene Volokh]
Jury unanimity is required in federal criminal trials, but does the Constitution also require it at the state court level? [Federalist Society SCOTUS Brief video with Jay Schweikert on Ramos v. Louisiana, argued at the Court Oct. 7]
In August New York Gov. Andrew Cuomo signed a law stripping state double jeopardy protections from Trump associates who may receive clemency in the future. It’s an improperly targeted enactment at best [Jacob Sullum, earlier]
Denison, Texas drunk with multiple priors, lying on gurney in hospital, kicks police officer and gets 99 year sentence for that [Stan Smith, KXII]
Lengthy profile of Philadelphia DA Larry Krasner, including his feuds with the local U.S. Attorney and Pennsylvania’s Attornry General. One disturbing data point: “Homicides in the city are up six percent and shootings are up 10 percent this year.” [Steve Volk, Philadelphia Magazine]

Tags: Andrew Cuomo, bail bonds, crime and punishment, double jeopardy, juries, Philadelphia, probation

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Prosecution roundup

Walter Olson — Fri, 11 Oct 2019 09:59:53 +0000

Let justice be done: conviction integrity units “operate within prosecutors’ offices to investigate old cases for errors or misconduct that may have led to a wrongful conviction.” [C.J. Ciaramella]
“Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He’s detained for 13 years before he’s finally acquitted in a third trial. And this happens because the state lied about an ‘utterly unqualified’ assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there’s so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.” [Institute for Justice “Short Circuit” on Camm v. Faith]
In the new 2018-19 term Cato Supreme Court Review, Anthony J. Colangelo writes about Gamble v. U.S., the dual-sovereignty double jeopardy case;
“Baby’s Death in Mother’s Bed Leads To 5-Year Prison Term. But Was It Her Fault?” [Cassi Feldman, The Appeal]
Seattle: “King County Took Money From an Anti-Prostitution Organization. Then ‘Unprecedented’ Felony Prosecutions of Sex Buyers Began.” [Sydney Brownstone, The Stranger last year; more (judge rejects disqualification motion)]
So it does happen: court denies prosecutor absolute immunity for withholding exculpatory evidence [Penate v. Kaczmarek, First Circuit]

Tags: double jeopardy, law enforcement for profit, prosecution, prosecutorial abuse, Seattle

Prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

June 19 roundup

Walter Olson — Wed, 19 Jun 2019 10:02:40 +0000

Gorsuch: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.” And yet he and Ginsburg were the only dissenters from the Supreme Court’s 7-2 decision Monday in Gamble v. U.S. to allow consecutive state and federal prosecutions over the same conduct, the so-called dual sovereignty exception to double jeopardy protection [Reuters, Ilya Shapiro, Cato brief (with ACLU and Constitutional Accountability Center) that had urged an end to the exception; and a conspiracy theory about Kavanaugh that wound up having absolutely no predictive value]
“When Should Plaintiffs Be Able to Sue Anonymously?” [Eugene Volokh]
77-year-old antitrust consent decrees were designed for a music business that long since faded into history, DOJ’s decision to reconsider is welcome [Federalist Society podcast with Kristen Osenga and Mark Schultz, Osenga blog post]
Clarence Darrow once boasted a cult following among American lawyers. His manipulative speech in the Leopold/Loeb case leaves you to wonder whether much will outlive the hype [Bryan Caplan]
Federal aid-to-state programs have exploded in recent years, a good way to redistribute money and power into the hands of political elites with little taxpayer or voter accountability [Chris Edwards, Cato, new study and blog post]
Dear Caterpillar: do you think there is much likelihood of consumer confusion about whether this coffee shop t-shirt is promoting earth-moving machinery? [Timothy Geigner, TechDirt]

Tags: antitrust, double jeopardy, lawyers, music and musicians, Neil Gorsuch, trademarks

June 19 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Crime and punishment roundup

Walter Olson — Tue, 28 May 2019 09:59:51 +0000

In order to stick it to President Trump and any associates he may pardon, New York legislature moves to chip away at what had been strong protections against double jeopardy. Not good [Sam Bieler via Scott Greenfield, Jacob Sullum]
Judge rules that New Jersey may not automatically suspend driving privileges over unpaid child support without a hearing to establish willfulness, lest it violate due process and fundamental fairness [New Jersey Law Journal; Kavadas v. Martinez on David Perry Davis website]
Different views of the institution of cash bail [Alex Tabarrok at Brookings conference, Cato podcast with Daniel Dew of the Buckeye Institute, Scott Shackford]
“To Seek Justice: Defining the Power of the Prosecutor,” Federalist Society short documentary video featuring Jessie K. Liu, Mark Geragos, Steven H. Cook, John Malcolm, Zac Bolitho, Bennett L. Gershman, and Clark Neily;
“Florida lawmakers just voted to create a public registry of people caught paying or attempting to pay for sex….it will certainly transfer private money to the state, give bureaucrats something to do, and provide the public with people to gawk at and judge” [Elizabeth Nolan Brown, Reason]
Wisconsin: “County Pays $90,000 Settlement To Man After Seizing $80,000 Judgment From Him Using 24 Deputies And An Armored Vehicle” [Tim Cushing in December]

Tags: bail bonds, child support, double jeopardy, Florida, New Jersey, prosecution, sex offender registries

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Gamble v. U.S.: conspiracy theory edition

Walter Olson — Sat, 06 Oct 2018 15:56:21 +0000

Ken at Popehat has an explainer on how the case of Gamble v. U.S. before the Supreme Court, on the operation of the dual-sovereignty exception to double jeopardy protection, is 1) not the subject of some fiendish plot to give Trump pardons universal effect by way of a Kavanaugh fifth vote; 2) not a conventional left-right issue either, Ruth Ginsburg and Clarence Thomas having joined in an opinion questioning the current doctrine. (Cato has joined in an amicus brief with Brianne Gorod of the left-leaning Constitutional Accountability Center to support the Ginsburg-Thomas position as more consistent with both originalism and civil liberties.) Earlier here (cert stage of Gamble) and here (similar Tyler case).

P.S. The Federalist Society has a link roundup and short Ilya Shapiro video on the case.

Tags: double jeopardy, Supreme Court

Gamble v. U.S.: conspiracy theory edition is a post from Overlawyered - Chronicling the high cost of our legal system

Crime and punishment roundup

Walter Olson — Thu, 07 Jun 2018 09:55:52 +0000

“Lawmakers must act now to close New York’s double jeopardy loophole,” claims New York Attorney General Barbara Underwood. Its what? [Kenneth Lovett/New York Daily News, Jacob Sullum/Reason, Jed Shugerman/Slate (defending closing of “loophole”), Jonathan Blanks on Twitter, earlier]
Speaking of pardon powers, Debra Saunders quotes me in column on Presidential pardons, Martha Stewart, Rod Blagojevich, Marc Rich, etc. [Las Vegas Review Journal/syndicated]
“California Town Hired Private Law Firm to Sue Citizens, Then Tried to Conceal Massive Costs” [Scott Shackford, earlier on Indio, Coachella, etc.] Bill passed by California assembly “would put an end to a practice in which several cities have been contracting with private prosecutors to handle nuisance abatement cases, then billing the impacted citizens thousands in lawyers’ fees.” [same]
“In light of the [Aaron] Persky recall, here are some studies on the impact of elections on judicial behavior. The story is consistent: elections make judges harsher, and there may be other costs as well (like lower-skilled people becoming judges).” [John Pfaff Twitter thread, earlier here, here, and here]
“CBP Sued For Seizing $41,000 From Airline Passenger, Then Refusing To Give It Back Unless She Promised Not To Sue” [Tim Cushing, TechDirt]
Even when suspects are in fact guilty, lies told to justify searches “corrupt the law in order to enforce it. That’s not how policing is supposed to work.” [Jonathan Blanks on Joseph Goldstein, New York Times investigation of police perjury (“testilying”)]

Tags: California, double jeopardy, forfeiture, judges, law enforcement for profit, New York, perjury

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

May 9 roundup

Walter Olson — Wed, 09 May 2018 10:02:06 +0000

Since political belief has not been made a protected class under New York public accommodations law, it’s no surprise — various memes notwithstanding — that a judge would find taverns entitled by law to deny service to a candidate’s supporters [Julia Marsh, New York Post]
Florida: “Attorney faces federal prison after admitting role in $23M auto insurance fraud” [Paula McMahon/Sun-Sentinel, more]
Pardons, double jeopardy, and now-departed Attorney General Eric Schneiderman: “Historically, New York was proud of providing greater constitutional protections than the feds offered, but that was before Trump.” [Scott Greenfield]
Megan McArdle follows up on her Alfie Evans column (and thanks for mention) [Washington Post, earlier]
Not your conventional presidential lawyer: two reports look at the legal practice of attorney Michael Cohen [Ilya Marritz and Andrea Bernstein/WNYC, Seth Hettena/Rolling Stone]
Harshing the mellow: Regulation, taxes driving some cannabis culture back underground in California [David Boaz, Cato]

Tags: crash faking, Donald Trump, double jeopardy, illegal drugs

May 9 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Crime and punishment roundup

Walter Olson — Mon, 22 Jan 2018 11:02:25 +0000

Fiasco of Cliven Bundy prosecution points up that even those who break the law are entitled to a fair trial. “In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. Unfortunately, this seems to be standard procedure for the FBI.” [James Bovard, USA Today; Mark Joseph Stern, Slate; earlier]
Don’t undermine structural protection Double Jeopardy Clause provides against prosecutorial overreach [Jay Schweikert on Cato amicus brief in Currier v. Virginia] Case gives SCOTUS chance to reconsider “dual sovereignty” exception to Double Jeopardy Clause [Ilya Shapiro on Cato certiorari brief in Gamble v. U.S.]
“The room he was in happened to fall within 572 feet of a park and 872 feet of a school,” within the 1000 feet set by Tennessee law, result misery [C.J. Ciaramella and Lauren Krisai, Reason (“Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination.”)]
Missed last spring: this challenge to the “Standard Story” of mass incarceration [Adam Gopnik on John Pfaff’s “Locked In”]
Ignorance of the law is no excuse. But with law having proliferated beyond anyone’s grasp, perhaps it should be? [Stephen Carter, Bloomberg, earlier]
Another study finds decriminalizing prostitution reduces sexual abuse and rape [Alex Tabarrok]

Tags: crime and punishment, double jeopardy, prosecution

Crime and punishment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup

Walter Olson — Tue, 12 Sep 2017 09:57:05 +0000

Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]

Tags: Article V, constitutional law, double jeopardy, football, rule of law

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Because there’s no legal story so depressing that it can’t get worse

Walter Olson — Fri, 06 Sep 2013 23:51:13 +0000

United Nations “human rights expert” suggests that compliance with international human rights norms may require casting about for some way to re-prosecute George Zimmerman since the first prosecution didn’t come out as some hoped. [Volokh] As Hans Bader points out, Article 14, Section 7 of the International Covenant on Civil and Political Rights forbids, as opposed to requiring, the exposure of defendants to double jeopardy.

Tags: double jeopardy, international human rights, Martin-Zimmerman case, United Nations

Because there’s no legal story so depressing that it can’t get worse is a post from Overlawyered - Chronicling the high cost of our legal system