May 18, 1995

Final Exam in Criminal Procedure (Advanced)

Professor Pamela Karlan

Part I

Question 1: Can Danny challenge his conviction?

At first glance, Danny's case appears strong. He is being punished under the Gun-Free School Zones Act. Although his conviction is final, he ought to be able to file a habeas petition. Under the "New `New Rule' Rule" Danny goes free if the Supreme Court has ruled either that he can't be punished at all or if his conviction raised a question of fundamental fairness. Although there appears to have been nothing unfair about Danny's conviction, the Supreme Court ruled in Lopez that the Federal government could not punish people at all for carrying guns in a school zone.

Danny was prosecuted by the U.S. Attorney, Danny was sentenced for violating an overturned statute, Danny goes free until the state of Indiana (a separate sovereign for double jeopardy purposes) indicts him for violation of their own laws.

Plea agreements are special, though. Danny was facing three counts. Because the counts have disjoint elements, none is a lesser included offense of any other. Therefore, Danny could have been sentenced consecutively for all three counts (Blockburger v. U.S., 284 U.S. 299 (1932)) and faced a possible sentence of 25 years. Danny didn't want to go to prison for 25 years; the prosecutor wanted to conserve limited resources for other cases. They made a contract. Danny plead to Count III and received a sentence only 1/25th of the maximum he could have received.

Danny wants out of the contract now because the offense he happened to plead to happened to be overturned by the Supreme Court. It is more realistic to say "Danny wants out because under the current law the worst sentence he could have gotten was 15 years." When courts look at plea bargains as contracts, though, they typically consider whether to specifically enforce the contract or to rescind it. In neither case would Danny get out of prison. The best he could hope for is recission and re-indictment on Counts I and II (in which case testimony from his plea hearing could be used against him at trial, so he really wouldn't be back where he was).

We need not consider the deep contract nature of plea bargains here, however, because Brady v. U.S. (1970) controls. There the prosecutor induced a plea by threatening Brady with "jury trial only if you want to risk death", something that the Supreme Court made impossible in U.S. v. Jackson about eight years later. Justice White's opinion states that the important elements of a plea are (1) that the defendant admits guilt, and (2) that the defendant waives his constitutional rights knowingly and intelligently. Danny was represented by counsel, received a substantial reduction in his sentence, and plead guilty.

Sorry, Danny.

[Note: The case of US v Wolczik, quoted in my question to question 2, also answers affirmatively the question of whether you can be imprisoned for a plea to a count that in fact you could not have been imprisoned for had that been your only conviction at trial.]

Question 2: Can Alexandra appeal her conviction?

Alexandra has a very weak ineffective assistance of counsel claim. Noel Prosser passed the bar. Courts are not going to make assumptions about what prosecutors typically offer and what Prosser should have known about that. The record implies that Prosser conduct at least some discovery unlike Morrison's lawyer in Kimmelman v. Morrison, who not only conducted no discovery but ignored a laboratory report sent him one month before trial. Alexandra cannot therefore get past the first prong (performance) of Strickland.

The government's failure to disclose Louise Pidgeon's first identification appears similar to the facts in Kyles v. Whitley, where the government's withholding of eyewitness statements and the statements by "Beanie" was enough to get Kyles a new trial. However, Kyles's attorney filed a "lengthy motion for disclosure," which Prosser failed to do. Alexandra will need to show, as did Kyles, that there is a "reasonable probability" that the outcome might have been different given all of the evidence.

Because this case did not go to trial, there is no way of knowing how much other evidence the prosecutor might have had. Furthermore, under Jencks, the prosecutor might not have had to disclose any of Pidgeon's statements to the defense until after Pidgeon had testified at trial. Brady does not trump Jencks; they have to be balanced in such a way that defendants get a trial but no more. "No denial of due process occurs if Brady material is disclosed to appellees in time for its effective use at trial" (US v. Funn, 713 F.2d 39 (1983)).

A case involving forged endorsements on savings bonds illustrates this balancing very well, in particular with regard to the requirements for legitimacy of a guilty plea. US v Wolczik, 480 F.Supp. 1205 (1979):

Though numerous cases have dealt with the effect of the Government's suppression of allegedly discoverable or favorable material on a conviction based on a jury verdict of guilty, our research has disclosed only one case considering the effect of suppression of such evidence on a conviction based on a guilty plea, Fambo v. Smith, 433 F.Supp. 590, 597 (W.D.N.Y.1977), Aff'd 565 F.2d 233 (2d Cir. 1977). In Fambo, the defendant had been charged with two counts of possession of an explosive substance with intent to use it illegally Count One for possession on November 29, 1970, and Count Two for possession on December 1, 1970. The defendant plead guilty to the December 1, 1970 possession and Count One was to be dropped. The prosecutor did not inform the defendant that between November 29, 1970 and December 1, 1970, police officers confiscated the explosive substance, without defendant's knowledge and replaced it with sawdust. This was clearly favorable evidence to the defendant since he could not be found guilty on the second count as charged. Nevertheless, the lower court, after examining the bargain closely, found the decision to plead guilty a voluntary and intelligent, if not properly informed, choice of the alternatives available. Particularly, the court noted that the petitioner did not allege that he did not get what he bargained for, i.e., he avoided the possibility of a more severe sentence at trial and had multiple charges reduced to a single charge.

We have noted that prior statements of Government witnesses are not generally discoverable during pretrial in a criminal case and that defendants often must make decisions on whether to plead guilty without All the facts. First, the favorable evidence in this case was in the nature of prior statements of a prospective witness for the Government, discovery of which cannot, by the provisions of the Jencks Act, be compelled. If the evidence qualifies not only as Jencks material, but also as Brady material (as the evidence here arguably does), then disclosure of the evidence May be required before trial. See United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979). It is clear, however, in our Circuit that: "(t)he rule of Brady v. Maryland is founded on the constitutional requirement of a fair trial, binding on both state and federal courts. It is not a rule of discovery. . . . If exculpatory evidence can be effectively presented at trial and the defendant is not prevented by lack of time to make needed investigation, there is no reversible prosecutorial conduct in ill-timed presentation." United States v. Kaplan, 554 F.2d 577 (3rd Cir. 1977). Thus, a defendant cannot expect to obtain Brady material for use in a pretrial decision to plead guilty.

Sorry, Alexandra; if we wanted to subject every prosecution to the scrutiny we reserve for trials, we wouldn't have plea bargains.

Question 3: Allow Matt's double jeopardy claim?

Matt should go free. Initially, it would seem that Judge Pease's actions could fall under the permissible "manifest necessity" or "ends of public justice" rubrics allowed in Somerville. His statement that some jurors were not listening carefully helps to show that. However, his statement about Bishop indicates that he was entertaining seriously the idea that jurors may be peremptorily challenged because they live in public housing.

"Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice" (Batson). "Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system" (Taylor). "The overt wrong [of excluding African-Americans], often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the case." (Powers, quoted in McCollum).

Over the past 30 years, the courts have gradually acknowledged that the right to serve on a jury is fundamental to full citizenship, that ensuring that right is essential to the ends of public justice, and that the parties in criminal and civil cases have standing to raise a venire's equal protection claims.

The state may no more deny residents of public housing projects the right to serve on criminal juries than it may deny them the right to vote.

(The fact that Matt did not seek an immediate appeal is a canard; only the state must seek an immediate appeal of jury selection disputes because double jeopardy is a one-way protection.)

Question 4: Matt wins on double jeopardy; can he be reindicted on RICO?

Under Grady v. Corbin, Matt's reprosecution would be barred. To establish his RICO violation, the government would need to prove weapons possession and postal theft. Both of these constitute offenses for which Matt has already been prosecuted. Unfortunately for Matt, Grady was overturned in 1993 by Dixon. We are back to the Blockburger test. Under Blockburger, if two offenses each have disjoint elements, i.e., neither offense's elements are a subset of the other's, they may be separately punished and, under Dixon, separately prosecuted.

We need to perform a Blockburger test of the RICO count against each of the three counts on which Matt was prosecuted before.

* RICO: weapon, post office, theft, extortion

* Count I: post office, theft

* Count II: weapon, commission of a crime

* Count III: weapon, school

It would appear that the elements of Count I are a proper subset of the RICO elements and therefore the postal theft cannot be used against Matt again. Unless the government can indict Matt for another predicate act, I'm going to have to dismiss the indictment.

Part II

"It certainly seems my fellow is quite a thief... so much the better ... if I'm able to get him off, what a feather in my cap!"

In December 1993 I roamed the streets of Harlem, camera and guidebook in hand. It was only a little after 2 but already the light was fading in the concrete canyons. I stopped into a bar for a Coke and some warmth. A black musician of about 50 sat down next to me. Somehow we got talking about the Menendez boys. "Those idiots, who the hell do they think they are going to fool? `I was abused' ... that's bullshit," said my interlocutor. The discussion moved on to the Michael Jackson child molestation case. "Whenever a nigger gets too big, he has to be slapped down. That's what this case is about. Hell, I don't blame the kid. I'll bet some Jew lawyer put him up to it."

Sensational cases let us talk about important social issues. There was no way I could have asked this man "What do you think are the long-term consequences of child abuse?", "Do you think American society has trouble with wealthy and successful blacks and, if so, how is that trouble manifested?" or "How do you think Jews in the legal profession affect blacks?"

Public life and political discourse would probably survive without sensational cases, but the yacht-owning Riviera-dwelling lawyer might not. When Howard Weitzman got John DeLorean off despite damaging video evidence, Weitzman earned more than the $3.5 million DeLorean paid him. [Of course, in this particular case, Weitzman had to litigate for nearly 10 more years to keep the money out of the hands of the creditors DeLorean burned with his bankruptcy.] The more people were convinced of DeLorean's guilt, the more Weitzman's reputation was enhanced and the better his ability to collect multimillion dollar fees from future defendants. With some attorneys, the gloss resulting from a case where guilt was established in the public mind but not proved in a court of law persists for many years after the attorney's zeal and abilities have faded.

Criminal defendants normally have an interest in keeping a case as quiet as possible and in having their innocence believed by as many people as possible. Despite the safeguards in our system that prevent seating biased jurors, extensive press coverage makes it difficult to find jurors who can truly consider the facts afresh. Furthermore, press coverage of crime tends to be primarily reportage of statements by government officials if for no other reason than these people tend to be more available to the press and easier to locate than, for example, eyewitnesses. These negative statements by government officials are likely to influence future jurors and certain to influence people with whom the defendant will eventually want to interact should he escape the criminal justice system somehow.

Defense attorneys, however, have an interest in keeping a case as public as possible and having as many people believe their client is guilty with the exception of the jurors actually hearing the case. If they ultimately lose the case, their reputation doesn't suffer because it was widely believed that the defendant had no chance. If they ultimately win the case, their reputation swells to heroic proportions because it was universally accepted that their client was headed for the chair.

We have yet another conflict of interest in an area of the law where conflict of interest is the rule, not the exception:

* The public defender wants to dispose of 100 cases/week and get a promotion for high productivity; the accused wants the public defender to spend six weeks full-time on discovery, investigation, and legal research that might get him off.

* The lawyer who has been paid $5000 to handle a defense wants to plead it out after meeting with the prosecutor for one hour and isn't going to insist on an especially light jail term for his client.

* The drug defendant's lawyer wants to plead him to 5 years and no forfeiture. The defendant knows that his assets are going to get soaked up by the lawyer so he'd be much happier with 2 years and forfeiting everything.

Do we care? No. These are guilty people. We don't trust criminal defendants not to lie so we have the Jencks Act. If we think a defendant is likely to commit more crimes, we don't mind imprisoning him pre-conviction (Salerno). We don't really believe anymore even in giving defendants the protections laid out in our constitution and case law. Why should criminal defendants therefore be entitled to the same by-the-hour, quietly conflict-free work Hale & Dorr does for a Fortune 500 corporation?

In the immortal words of Sam Greene a/k/a James Martin, "It is obvious I don't have any funds. I got this idiot standing next to me. ... I wasn't born rich and white."

Microsoft Word says that I have 2503 words including the date at the top, the restatement of the questions, and my headings (but not including this sentence); I think I will stop writing now.

Reader's Comments

Well, I'm not quite sure how much I'm adding to the content of this page; however, I'm hoping to spark some further discussion on this topic.

There just seems to be something wrong with the whole plea-bargain concept.

Case 1: You let someone off easy because it's cheaper than actually going through a trial, or you need their cooperation to catch a bigger fish in the pond.
Case 2: Someone who's innocent, pleas guilty to something they didn't do because they can't afford to risk being found guilty and having to face to full penalty.

This seems like a lose-lose situation. Either we (society in general) lose because we're letting a guilty person get off lightly, or an innocent person loses because can either plead guilty to something he didn't do, or face the consequences.

Occasionally there arises a situation where someone who is guilty, pleas their way to a reduced charge by testifying against someone who is innocent.

I realize that no system is perfect, but in today's world, one would hope that things would be better. I guess that this is an improvement over torture, but I'm not sure by how much.

Side question for Philip: Do you feel that you got more out of this than a B- (Isn't education about more than grades?)? Would you (are you planning to) take any more law classes?

Reading about your law-school experiences has made me glad that the law firm I work for (in computer tech support), does not practice criminal law.

-- Geoffrey S. Kane, December 8, 1997

"What if?". That's a question we all ask, at one time or another. Some to a merely conservative point, and some to an extreme... Seeing all of this money, and power jockeyed around by these mostly wide-eyed folk, I can't help but to wonder if maybe we took a good thing, a "protection" to promote safety and fairness to all, and went too far. It's not really about justice anymore. It's about fame, and power, and sensationalism, and controversy, and most of all, money. You can't be the President without it. And this is what we can be... Without it.

-- Dan Fullerton, June 14, 1998
I have no way of knowing whether B- is a reasonable grade or not for this paper. If it is, then I probably haven't learned much about law and justice from it. If it isn't, I don't know what I've learned. Is the argument not expressed in a lawyerly way? Are the conclusions grossly incorrect? Are the referenced decisions misinterpreted?

If the professor gave written comments, it would be interesting to see them (with her permission, I guess, although that's not ethically or legally clear).

It would also be interesting to see what an "A" answer was.


PS As an MIT undergraduate, I also crossregistered at Harvard for things not offered at MIT. For instance, biology at a level above that of the cell. I did learn some physiology in that course, but I also learned something about pre-meds, since it turns out that very few people take this course because they're budding scientists.‰

-- Stavros Macrakis, October 16, 1998

I'm not at all sure that Geoffrey Kane is justified in feeling ethically safe because he works in corporate law. On a case by case basis of his own experience, his judgement is probably correct. But it seems to me that immense miscarriages of corporate justice occur and injure more of us than those in criminal law. But they're too technical for the news media to understand, or at least present. The level of monopoly power presently tolerated and encouraged by the law means that I suspect the farmer who grows your breakfast cereal gets a smaller cut of the price paid by the consumer than Phil Greenspun gets out of dead-tree publishing.

-- Albert Rogers, June 14, 2000
This isn't my idea, but one suggested by a professor: perhaps taking the institutional element away from the public defender and district attorney's office would lessen the dangers of the plea bargaining system. It seems to me that DAs and PDs get entrenched into one side or the other, and lose sight of how the system as a whole is supposed to work. If the DA and PD offices were abolished and the government instead spent the money to appoint an attorney (randomly) to prosecute and an attorney (randomly) to defend, each of the attorneys coming from a common pool of criminal law attorneys, the war-zone atmosphere would be lessened (my county has this problem) and a defendant wouldn't be stuck with the stigma of having a public defender instead of a "real attorney." Such a setup could result in less of a caseload building up on any one attorney, and lessen the pressure on defense attorneys to settle fast. It would also reduce the hostility defendants have when they see their attorney being nice to the DA, because the defendants would know that no attorney spends his or her life just putting people behind bars; today's prosecutor could be the defendant's attorney for the next case.

Of course it could be unworkable. Any ideas?

-- Adam Ramirez, May 1, 2006

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