Monthly Archives: April 2011

Latest Psychology and Law Studies

Too busy to write anything of length here. Nevertheless, I absolutely had to pass along this incredible new resource from Current Directions in Psychological Science: a volume full of studies examining the intersections of psychology and the law. I’m very frustrated that I can’t just sit down and read every article right now. Sadly finals still consume me. But for those of you lucky enough not to be studying for finals or otherwise really busy, check this out!

Trust me, it’s worth it!

Current Directions in Psychological Science February 2011

-Zachary Cloud

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Juries and Federal Habeas Review: Interesting New Article

Not so long ago, Joseph Hoffmann and Nancy King forcefully argued for the abolition of federal habeas corpus review of state convictions in all cases except capital offenses. See Joseph L. Hoffmann & Nancy King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791 (2009). More recently, they’ve authored a book on the same topic entitled Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, which you can purchase for a little over $40. Yesterday, the two authored this op-ed piece in the New York Times, which summarizes their argument.

I strongly disagree with the argument these two advance and I’m not the only person who believes their policy suggestions are misguided. This response by John Blume and his colleagues at Cornell Law does a thorough job attacking Hoffmann & King’s law review article (I’m particularly a fan of Section II, parts B and C found on pages 451-56).

Yet, on the eve of Hoffmann & King’s new book, the renowned sentencing expert Douglas Berman (a law professor at Ohio State) authored his own take on what should be done to reform federal habeas review of state convictions. The key? Juries. Yes indeed, Berman makes a strong argument for utilizing petit juries in habeas proceedings.

Well, when I saw that I had to post about it. I haven’t had a chance to thoroughly read his article yet (remember: finals loom) but I definitely recommend reading it. From the parts I have skimmed, it seems to be quite an interesting article.

-Zachary Cloud

Nicolas Cage Arrest Records & Docket Information

You might have heard that Nicolas Cage was arrested for allegedly getting into a drunken altercation with his wife in New Orleans this weekend. Since I used to work as an investigator in NOLA, I figured I’d look up his court records and share.

This is all public information, which you yourself can find if you go to: Orleans Parish Sheriff’s Office Docket Master. I encourage you to visit the site and search his record for yourself. If you’re not so inclined, here are the details.

His entry lists him as a white male born on January 7, 1964. The motion number. is 11562710, the arrest number is 12016967, the item number is D2472511, and the folder number is 2288656. His magistrate number is: 523436 and his section is M2. I can’t remember which judge is in section M2 (and it’s probably changed since I was working there anyway). The arrest date is listed as April 16, 2011.

The records also show that he has 1 charge of violating La. Rev. Stat. § 14:103 (which is disturbing the peace) with a bond of $1,000 set. He also has 1 charge of violating La. Rev. Stat. § 14:35.3 (which is domestic abuse/battery) with a bond set of $10,000 for a total bond of $11,000.

His rule to show cause hearing is scheduled for May 31, 2011 at 3:00PM in M2 and the stay-away order from his wife (I believe these are automatically issued in New Orleans upon arrest for domestic abuse) was waived.

-Zachary Cloud

An Essay on Improving the Criminal Justice System: Supplement

This is not going to be a long essay; I’m just passing something along. A while back I wrote a post entitled An Essay on Improving the Criminal Justice System. It was a post I threw together somewhat hastily and yet, as irony would have it, it’s one of my most visited posts.

In that post, I mentioned that a fundamental way of improving the system would be to turn to an inquisitorial rather than adversarial format. When I wrote that, I said it as a side thought and without any awareness of the following extensive law review article that’s directly on-point. For those of you interested in a thorough understanding of the downsides to an adversarial approach to criminal justice, give this article a read:

Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403 (1991-1992).

Panel Discussion: Turner v. Rogers, New Territory for the Constitutional Right to Counsel

A quick heads up for those in the metro DC area that have an interest in Turner v. Rogers.

The Washington Council of Lawyers is hosting a panel discussion on April 25, from 12:00-2:00pm at DLA Piper’s office on 8th St. NW. Since that day is a Monday my guess is it probably won’t prove to be convenient for most people. Nevertheless, it looks to be an interesting event.

If something crazy happens and all my finals magically disappear, I might make the trip down to attend. But since the probability of that condition occurring is ~0%, I think it’s safe to say I won’t be in attendance.

-Zachary Cloud

Broadening the Right to (Effective) Counsel?

It’s made the headlines that the U.S. Supreme Court has stayed the execution of a Texas defendant and Arizona defendant. (e.g. New York TimesCNN, Washington Post, LA Times, The Guardian).

Yet most of these headlines don’t even begin to explain the legal nuance of what this could mean. While I’d love to resolve this problem, I’m short on time with finals approaching. So, I’ll leave it to this post by Lyle Denniston on SCOTUSblog. Maybe if more developments happen with the cases, I’ll carve out some time to discuss them.

Definitely give the piece I linked to a read. It should give you a better understanding of just how important these cases may be to improving procedural protections for defendants.

-Zachary Cloud

Reactions to Turner v. Rogers Oral Arguments

It’s been a little over a week since the United States Supreme Court held oral arguments for Turner v. Rogers. This evening I sit down to look at what happened and what is likely going to happen in the case.

First, let me note that you might have an interest in hearing the audio from oral arguments. You can download that here and the transcript here. As the audio shows, all three attorneys (the petitioner, respondent, and counsel for the Solicitor General) argued quite well. The petitioner’s counsel during arguments was Seth Waxman, who has quite a distinguished reputation when it comes to Supreme Court litigation. He’s currently employed by WilmerHale and does lots of things for them including representing clients before the Court. Respondents’ counsel was Stephanos Bibas. Mr. Bibas arguably has an even more distinguished reputation; though he’s a bit younger than Mr. Waxman, he was a law clerk to Justice Kennedy and is widely considered one of the top scholars in criminal law and procedure. He taught at my alma mater for a few years and he currently heads up the University of Pennsylvania Law School’s Supreme Court clinic.

The styles of these two in their arguments, which is quite discernable in the audio, is captivating. While Mr. Waxman had a very conversational approach with the bench (not surprising given the over 25 cases he’s argued in the Supreme Court), Mr. Bibas took a tone reminiscent of a public speech. Throughout the arguments, the way Mr. Bibas answered had a distinctly professorial flavor to it– as if he was teaching the Court about law.

Both speakers held their own and made their points well. But what did the justices think of those points?

That is where I start to become concerned. Of the 9 justices, I got the impression that only Justice Kagan was decided pro-Turner. It might work well to consider them in-turn. First of all, we didn’t hear anything from Justice Thomas, which is not a surprise; he rarely speaks during oral arguments. We also did not hear a whole lot from Chief Justice Roberts, though what we did hear seemed to lean towards a limited holding of due process rights akin to what the Government argued in their amicus brief. Mr. Bibas’ old employer Justice Kennedy seemed to struggle with what exactly the Court should do. He seemed particularly concerned about what impacts a ruling for Mr. Turner might have on the system of child-support enforcement. Justice Scalia seemed focused on two points: first, that defendants must be ensured due process– a term that need not necessarily equal lawyer; second, that the question before the Court didn’t allow for considerations of what the Government was advocating (using a case by case rather than bright line approach). Justice Alito also seemed to follow in Justice Scalia’s thinking by wondering why counsel as opposed to other mechanisms was necessary. Justice Ginsburg seemed especially concerned about the plaintiffs in child support suits (typically mothers). This is not a big surprise given Justice Ginsburg’s dedication to women’s rights. The other women at the bench may not have felt quite the same way. Justice Sotomayor seemed particularly concerned about what mechanisms other than an attorney would be sufficient for due process. Justice Kagan was quick to agree, calling the Solicitor General’s suggestions “remarkably anemic.” Finally, Justice Breyer indicated that the relative burdens on plaintiffs and defendants in a contempt hearing might have some impact on his ruling, though Justice Scalia found this line of questioning to be irrelevant.

So, what are my predictions now? Well scratch what I said in my pre-arguments prediction post. I think Mr. Turner will lose. I hate to say this, but it seems quite likely to be true. Here’s why:

First, much of the court seemed very leery of holding that a right in situations like Mr. Turner’s should be categorical or per se. A LOT of questions were dedicated to inquiring about how a case-by-case situation might work and even the justices who seemed sympathetic towards Mr. Turner indicated their hesitation about saying a right should be triggered by being in the category of indigent.

Second, a large number of opinions coming from the Court this term has been strongly pro-states. What do I mean? Well, when we speak of constitutional law in America, a big question is what should the balance of federal and state power be? This question is as old as the Constitution itself and was litigated in such cases as Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (the first defining case on the federal government’s ability to regulate interstate commerce). Although the Court in twentieth century showed sweeping deference to Congress to regulate state matters, Justice Rehnquist is credited with having redefined and pulled back on federalism. This tendency to take a deferential, hands-off approach to what the states may do has been seen repeatedly this term (for two examples, see Harrington v. Richter and Premo v. Moore, which I discussed here).

This trend should suggest that the Justices (or at least a majority of them) are going to try to leave the states alone when possible and Turner v. Rogers is a particularly easy case in which to do that. The child support system and family law in general are very much a state vehicle that each state tailors as it desires. It wouldn’t be a hard argument for a Justice to say that a state, say Kansas, may need to use procedures to secure child support that don’t work in, say, Rhode Island. And if you don’t hold for a categorical right to child support then you have to articulate an even murkier case-by-case standard that may prove cumbersome in some states and perfect in others. So, better to leave the matter alone entirely.

All of this is to say that it looks bad for Mr. Turner. I might have been able to set aside my concerns regarding the hands-off, let-the-states-do-what-they-want approach had the Court warmly embraced Mr. Turner’s argument. But given their hesitation about that during oral arguments, I think it’s a fairly safe bet the Court will affirm the South Carolina’s holding.

So of course, you may be wondering when we will know. Well, the likelihood is that we won’t see the opinion come down until June. It is always possible that it will be released before then but unlikely given the pace of the Court this term. For example, Snyder v. Phelps was argued in October and handed down in March. Now, a five-month waiting period for the decision in Turner v. Rogers is unlikely since the Court will devote all of May and June to getting opinions finished and out the door before the summer recess. Still, I wouldn’t expect it any earlier than mid to late June.

When it does come down, I’ll be covering it and going through the opinion in detail to explain it all. Until then, I’ll be taking a break from the case to discuss other things (read: jury psychology) and also to deal with the utter doom of law school finals.

-Zachary Cloud