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Worth the read

April 20, 2014

Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing

Mark W. Bennett

U.S. District Court (Northern District of Iowa)

Ira P. Robbins

American University – Washington College of Law

March 10, 2014

Alabama Law Review, Vol. 65, No. 3, 2014
American University, WCL Research Paper No. 2014-9 


Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.



Statute of limitations

April 20, 2014

Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue.  Meanwhile, we have to deal with the gruel they dish out.

So, keep an eye on any changes to the statute of limitations for various sex related offenses.  AND, keep an eye on any potential increases to punishments.

In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations.  In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):

(1) laws that aggravate a crime, or make them greater than they were when committed and

(2) laws that alter the legal rules of evidence and receive less, or different, testimony than the law required at the time of the commission of the offence in order to convict the defendant.

In Peugh v. United States, ___ U.S. ___, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (212), the Supreme Court had a sentence/guidelines case before it. Peugh involved a defendant who was convicted and sentenced on bank fraud counts. The defendant argued that his sentencing under the 2009 Federal Sentencing Guidelines, which were in effect at the time of sentencing, required a heavier sentence than the sentence he would have received at the time of the offense, which would have been governed by the 1998 Guidelines. Under the 1998 Guidelines, Peugh’s sentencing range would have been 30 to 37 months, but the 2009 Guidelines led to a range of 70 to 87 months, which was more than double the earlier calculation. The District Court and the U.S. Court of Appeals for the Seventh Circuit rejected his Ex Post Facto arguments and sentenced him to 70 months, but the Supreme Court agreed with him that the Clause had been violated. The Supreme Court ruled, 5-4, that the Ex Post Facto Clause precludes a sentence that is more severe than that which would have been likely to have been rendered at the time of the offense.

See also, Ashran Jen, Stogner v. California: A Collision between the Ex Post Facto Clause and California’s Interest in Protecting Child Sex Abuse Victims, 94 J. CRIM. L. & CRIMINOLOGY 723 (2003-2004); Marci Hamilton, The Supreme Court Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders: What the Ruling Means for Child Safety, Verdict, June 14, 2013.

Then see United States v. Kebodeaux, ___ U.S. ___, 133 S. Ct. 2496, 186 L. Ed. 2d 540 (2013), in which the Supreme Court makes a distinction regarding conviction at Special Court-Martial for a sex offense and the collateral effect of a sex offender registration.


What the witness sees and remembers is a function of many factors specific to that witness and the crime scene:  the witnesses ability to see without glasses, the absence of any lighting at night.  What complicates matters is the deliberate or unintentional police actions (and actions of others – see ‘memory conformity’ issues).

The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is right only about half the time – a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

But now, Eyewitness Testimony is no Longer A Gold Standard, says AP.

The U.S. Supreme Court had a chance to establish a national standard for eyewitness testimony when it handled a 2012 case from New Hampshire. The court instead delegated that responsibility to the states, which could choose to overhaul their laws or do nothing at all. Most chose the latter.

In Maryland, however, legislators this week passed a bill that overhauls eyewitness identification procedures, joining roughly a half-dozen states and cities.


Why wrongful convictions

April 13, 2014

There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.

In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).

I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.”  In another portion of the pod Dr. Gould addresses discovery failures.


Center for Prosecutor Integrity.

The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.

CPI sponsors the Registry of Prosecutorial Misconduct, supports media efforts, and partners with other groups to achieve policy reforms at the state and national levels. As a public interest law initiative, CPI does not accept individual cases.

The Center for Prosecutor Integrity is a non-partisan 501(c)3 non-profit organization. CPI addresses prosecutor misconduct of all types, particularly misconduct associated with sexual assault and domestic violence cases.

Of particular interest is their registry.  Their graph of the most common show Brady violations and inadmissible evidence as the substantially most common types of prosecutorial error.


There is an impact

April 11, 2014

Congress, commanders, and others ignore the effects of false sexual assault allegations.  They don’t fit the meme.  They are quite willing and happy to ignore such happenings or possible happenings.

16-year-old commits suicide after being falsely branded a rapist by drug-dealing gang.  A schoolboy hanged himself after he was falsely branded a rapist by fellow pupils after pulling out of a playground drug dealing racket, an inquest heard.

Have wrongly military accused’s committed suicide as a result of false allegations – I know of at least one, and one possible one.  My colleagues know of others.

The false sexual assault allegations deniers also deny motivations for alleging rape.  Motivations such as:

[A] Scorned woman [who] falsely cries rape.  A spurned lover whose cry of rape cost police coffers £10,000 was jailed for nine months yesterday.  Belfast Crown Court heard that Lisha Tait cried rape after being given the “cold shoulder” in a Belfast nightclub by a man she had a previous liaison with.

I have posted this before:

Woman allegedly cried rape 11 times to avoid taking the bar exam.  Rhiannon Brooker, 30, is on trial for allegedly falsely accusing her boyfriend of repeatedly raping and assaulting her — the prosecution says she cried rape 11 times — which caused him to be arrested, charged and held in custody for 30 days, according to this source. She purportedly used the allegations as “extenuating circumstances” in a failed attempt to dodge her exams, according to the prosecution. According to a news report: “After withdrawing her allegations Brooker confirmed they were false, and admitted that injuries seen by witnesses, including her friends and doctors, were self-inflicted, the court heard.” Yet, she is still denying that she committed an act tending, and intended, to pervert the court of justice. It is not clear what her defense might be.

And to wrap up with this:

In a comment under Caroline Kitchens’ opinion on “rape culture” in Time, the staff of the Colorado Coalition Against Sexual Assault says this: “. . . false reporting is NOT a problem, actually only 2-8% . . ..”

Even accepting the accuracy of that number (which erroneously suggests that 92-98 percent of all rape claims are actual rapes and doesn’t bother to acknowledge that the majority of rape claims can’t be determined to be actual rapes, misidentified rapes, or false rape claims), 2 to 8 percent is a very significant number.

How is it proper to raise awareness about rape by trivializing a completely different problem that victimizes significant numbers of people? Since when did it become fair game to dismiss out of hand a problem that destroys lives?

The comment is insensitive to the community of the wrongly accused, and it has no place in advocacy for rape victims.



Capacity to Consent to Sexual RiskElaine Craig, Dalhousie University – Schulich School of Law, 2013

Forthcoming in New Criminal Law Review, Vol. 17, Number 1, pps 103–134. © 2014 by the Regents of the University of California. All rights reserved.


In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.
Or how about.  Flirtation or sexual harassment? Here’s how to tell the difference, on TheWomen’sBlog at The Guardian.


Some evidence notes

April 11, 2014

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial.  The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

[T]he court must carefully consider how the particular Rule 404(b) evidence will be used to prove intent, knowledge or lack of mistake and make certain that it is not through the use of a propensity inference.” Reed, _ F.3d at _ (citing United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012); see also United States v. Lee, 724 F.3d 968 (7th Cir. 2013)). In particular, the circuit had found in Miller, that the use of plastic bags to package crack cocaine was “far too generic in drug cases to make a pattern of two acts over eight years probative of anything beyond propensity.” Miller, 673 F.3d at 699 -700.

The Seventh is on a particular path to significant criticism of MRE 404(b) evidence.  The case above highlights.  See federalevidence review.  “As noted in the Federal Evidence Blog the past few years, the Seventh Circuit continues to criticize and closely scrutinize the admission of other act evidence under FRE 404(b). One aspect that has drawn criticism concerns “inextricably intertwined” evidence that may be admitted independent of FRE 404(b).”  See also their, Rule 404(b) -Ten Common Questions & Misconceptions.

How about prior inconsistent statements.  “Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”

In considering the admission of a witness’s prior inconsistent statement under FRE 613(b), what process should be followed in asking the witness to confirm the prior statement? As the Eleventh Circuit recently noted, as long as “an opportunity to explain or deny the statement” was available, the rule does not required any particular time or any particular sequence in which this opportunity is made available, in United States v. Feliciano, _ F.3d _ (11th Cir. April 3, 2014) (No. 12-15341).

How do we tell if something is testimonial for Sixth Amendment confrontation purposes.  The Fifth reminds us.  Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738)

When a statement is introduced from a non-testifying witness, the Supreme Court applies a primary purpose test under the Sixth Amendment to determine whether the statement is testimonial. See Davis v. Washington, 547 U.S. 813, 822 (2006) (adopting “primary purpose” test to determine testimonial nature of statements). The Fifth Circuit recently considered whether a forty-year old affidavit was admissible under the Confrontation Clause.


Still in flux?

April 11, 2014

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications.  Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed.  No longer do we put a paper copy of a letter in a file folder and cabinet in our home.  Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones:  “The need for computer-specific Fourth Amendment rules in the cell phone search cases.

The cell phone search cases currently pending at the Supreme Court, Wurie and Riley, offer the Justices three basic choices for when the Fourth Amendment allows a warrantless search of a cell phone at the time of arrest under the search incident to arrest exception to the warrant requirement. The answer could be “always,” underUnited States v. Robinson; “sometimes,” primarily under Arizona v. Gant; or “never,” under Chimel v. California. In this post, I want to explain why I think the answer shouldn’t be “always.” In my next post, I’ll explain why I think that both “sometimes” and “never” are plausible answers, and I’ll try to mark out the parameters of the choice between them.

He is right – of course- that “always” should never be the answer, and that, “the Court should recognize that Fourth Amendment jurisprudence should in some cases adopt computer-specific rules.”


It’s a privilege

March 29, 2014

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

Rather I have heard read it this way.

Courts of Criminal Appeal are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused. Frequently, they are acknowledged to have awesome, plenary, de novo powers of review under Article 66(c). United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). “A clearer carte blanche to do justice would be difficult to express” was the observation in United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). Thus, the question before us is not whether a Court of Military Review can, in the interests of justice, receive and consider an affidavit on the merits of a case. Cf. United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973).


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