I. IntroductionAmerican prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.
If you, like me and some of my colleagues, have personal experiences from military clients who commit, get stopped in the act, or consider suicide while pending court-martial, you are facing a difficult challenge.
My first was a client I was representing on appeal who hung himself in the SHU at the USDB. Sadly, I’d gotten the Dubay judge’s findings and conclusion which lead me to think he was getting a new trial. He died not knowing that. I’d written to him telling him what I thought would be good news. The mail room allegedly refused to give him that letter which lead to a chain of events ending with him in the SHU.
We all have to be sensitive to clients in distress. Sometimes it’s hard to tell if the client is experiencing the “normal” stresses of being in trouble.
Shawn Boyne, Pre-Trial Procedures in Criminal Cases.
Prof. Boyne (Indiana U., Robert H. McKinney Sch. of Law), has an interesting read.
Does this seem familiar?
Global Jurist: Vol. 9: Iss. 4 (Frontiers), Article 6.
Available at: http://www.bepress.com/gj/vol9/iss4/art6
Rossmo, Kim and Pollock, Joycelyn, Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (June 28, 2019). Northeastern University Law Review, Vol. 11, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3413922.
Tokson, Matthew J., The Emerging Principles of Fourth Amendment Privacy (July 23, 2019). George Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3425321
Wexler, Rebecca, Evidence in the Age of Privacy: Access to Data in the Criminal Justice System (July 29, 2019). Available at SSRN: https://ssrn.com/abstract=3428607 or http://dx.doi.org/10.2139/ssrn.3428607
Going through some old files I came across the
Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).
Should the TJAGs also send a “letter to self?”
By D. Kim Rossmo and Joycelyn M. Pollock.
Their study suggests that 37% of wrongful convictions result from confirmation bias.
Once again it is the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of the conclusions from the new decision—United States v. Voorhees,
just decided by the U. S. Court of Appeals for the Armed Forces.
Prof. Doug Berman of Sentencing Law & Policy brings this tidbit about SOR in Alaska.
[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:
This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness….
An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.”
Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).
Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.