Monthly Archives: November 2011

Scotland Gets Rid of Double Jeopardy

I recently pointed out a devolution case from the UK Supreme Court dealing with a criminal suspect’s right to waive counsel in Scotland. Well, the ‘fun’ is not over yet…

As the BBC reports here, Scotland has done away with the concept of double jeopardy. According to the article, the Double Jeopardy (Scotland) Act was passed in March and is designed to allow acquitted criminal defendants to be re-tried if the original verdict was “fundamentally flawed.”

The Act has various provisions that allow for re-trial, including but not limited to “tainted acquittals,” instances where “[a]dmissions . . . become known after acquittal,” and situations where new evidence is garnered. Two things immediately strike me about the Act. First, there will almost surely be a challenge to it based on the European Convention on Human Rights (ECHR), which will make its way to the UK Supreme Court. Now, I am not nearly familiar enough with the particulars of the ECHR to make any comment on the substantive merits of such a challenge.

Second, and more to the point, this act would seem to toss aside the basic premise of res judicata. It is a fundamental principle that things should not be fully litigated more than once.  After a court has handed down a final judgment in a matter, that matter should be foreclosed from further adjudication. Nor is this unique to criminal law – it is in full force with civil litigation as well.

Ah, but what about a defendant seeking a new trial, you ask? You might point to the US example of a prisoner collaterally attacking his conviction under AEDPA with every hope that he can have a new trial. Doesn’t such a process harm my argument?

The answer will depend upon how you balance the societal importance of imprisoning criminals against the individual interest in liberty. If you believe that it is better to let ninety-nine guilty men go free than imprison one innocent man then I don’t think there is any problem with foreclosing re-trial to the prosecutor but leaving it open to the defendant. The logic is simple enough: if a jury found a man innocent, we’ll take their word on it. If a jury found a man guilty, we’ll leave that man with options for showing said incarceration was unjust. As you can see, the focus is on sanctifying personal freedom.

On the other hand…

If the concern is about society safety and individual freedom is less important, then I suppose what Scotland is doing is perfectly acceptable. If our concern centers not on liberty but on how much danger a man truly poses to society, then why shouldn’t both sides be allowed re-trial? Why should an adversarial system get in the way of truth?

All of this is to say that the correctness or incorrectness of Scotland’s new legislation ultimately turns on a very philosophical question. For me, and I suspect for many others as well, the answer is that Scotland has passed legislation that is an affront to human rights. Time will tell if the courts agree.

-Zachary Cloud

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Happy Thanksgiving!!

From me to you, have a very happy Thanksgiving!

-Zachary Cloud

UPDATE: Federal-State Tension Over Medical Marijuana Is Growing

Very briefly: the New York Times has an article that provides some anecdotal updates on the current tension between the Department of Justice and California medical marijuana dispensaries. Read it here.

-Zachary Cloud

Notable UK Judgment on Waiver of Counsel in Scotland

Quickly passing along this new judgment from the United Kingdom Supreme Court. In the latest of a series of devolution cases (e.g. Cadder, Fraser, and Ambrose), comes now McGowan (Procurator Fiscal, Edinburgh) v B (Scotland).  Four of the Lord Justices determined that it would not violate Article 6(1), (3)(c) of the European Convention on Human Rights (ECHR) for the prosecution to use evidence obtained during a police interrogation after the defendant had stated that he did not want an attorney.

The ruling itself is unsurprising and uncontroversial. Nor is it especially novel.  I believe most jurisdictions take the same approach. Certainly, the U.S. does (although it gets more complicated by Miranda than I want to get into here).

The case will likely garner more attention for the devolution aspect than the underlying ability to waive counsel. Though I doubt this will be inflammatory to those in Scotland who have criticized the UK Supreme Court. Call me cynical, but it generally only works one way: when courts step in to help protect criminal defendants, people get angry. However, when courts limit or narrow the rights of criminal suspects, people generally don’t get upset about it. At least not the people who have a voice. But like I said, I am a cynic.

At any rate, I’ll be reading through the judgment more carefully either today and tomorrow and may report back if I find interesting portions worth further discussion.

-Zachary Cloud

More Federal-State Tension over Medical Marijuana

A quick update on the feds going after state medical marijuana distributors. As I noted here, there has been a growing tension between the Department of Justice and States that allow medical marijuana possession / distribution. At first, the Department’s tune was essentially “we probably won’t prosecute anyone but just remember that we can.”

Well, as the BBC reports, U.S. Attorneys are preparing to prosecute select, “large dispensary” operations that are located in “towns and cities that have already banned marijuana shops.” The article suggests that other factors may be in play as well (e.g. proximity to schools). It is unclear from the article (and I don’t know personally) if collecting profits is also a problem that has drawn federal attention. The piece states that “[f]or-profit sales are in violation of California’s state law[,]” which leaves it unclear if some of the prosecution targets are alleged to have violated this provision.

So, is the federal government trying to help California? A better question: is the federal government allowed to?

Of course U.S. Attorneys can bring prosecutions under 21 U.S.C. § 841(a)(1) because that’s a federal statute. But they can’t enforce California’s state law on its behalf in a federal district court…nor would I imagine they’re interested in such a task. Moreover, I’m not sure that cities or towns in California are even able to ban such marijuana dispensaries under state law. Generally, state laws have supremacy over city ordinances and cities would be prevented from refusing to enforce a state law…or enforcing a law the state says they can’t. It’s worth pointing out that I don’t live in California nor know the specifics of the medical-marijuana laws there. Perhaps there’s an opt-out provision for cities? I just don’t know and if you do, I welcome your insight.

At any rate, it seems to me that the federal government is saying one thing and doing another. They suggest that their prosecutions are designed to close down problematic marijuana distributors violating California law. Give me a break…it’s California’s call to do that sort of thing. At best, the feds are rude neighbors sticking their noses where they don’t belong. In other words, if California has problems at home, let California deal with them. Surely California is better equipped to take care of its own affairs?

Of course, the feds being busy-bodies is the best possibility. The much more likely one is that the federal government is solely interested in what it stands to gain. Thus, federalism is all the more in sharp relief. This turned out to be far more than a “quick” update but c’est la vie. Anyhow, I’ll be watching how this develops with some interest and will report back when something noteworthy happens.

-Zachary Cloud

Opinion in Greene v. Fisher

The first Supreme Court opinion of the term came down today. And it’s a habeas case! In Greene v. Fisher, Justice Scalia writing for the unanimous court upheld the Third Circuit. The opinion is here. Reactions may follow once I’ve had a chance to read the opinion more carefully.

-Zachary Cloud

Happy Birthday to the Blog!

Criminal Law & Psychology is 1 year old today! My first substantive post occurred on Nov. 2, 2010. Twelve months and eighty posts later, it’s become a success. Thanks for being along for the ride. I’ll be working this year to improve the site and I hope you’ll stay with me for that journey as well.

-Zachary Cloud