Category Archives: Criminal Justice

Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor.  The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim,  ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the  raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception.   Communications between lawyers who collude with their clients to break the law are not protected.  In this case,  the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….

 

Connecting The Gun Dots…

Nothing that happens, happens in isolation. That’s sometimes called “the butterfly effect,” the controversial assertion (linked to chaos theory) that a butterfly flapping its wings will eventually cause a hurricane in China.

The various human and social consequences of gun ownership are much less theoretical. A recent study conducted by Vox connects America’s widespread gun ownership to our epidemic of police shootings.

The study was prompted by the recent shooting of Stephon Clark in his grandmother’s back yard. Police thought the cellphone he was holding was a gun. This fatal error is increasingly common.

Officers have shot people after mistaking wrenches and badges for guns. Cops have shot people thinking that they’re reaching for a firearm when they’re really pulling up loose-fitting shorts. Police have shot multiple people thinking that a toy gun was a real firearm.

In all fairness, police have plenty of reasons to believe a target is armed. The United States has more guns  in the hands of its citizens than any other country in the world.  According to recent estimates, America has more guns than people.

“Police officers in the United States in reality need to be conscious of and are trained to be conscious of the fact that literally every single person they come in contact with may be carrying a concealed firearm,” David Kennedy, a criminologist at John Jay College, told me. “That’s true for a 911 call. It’s true for a barking dog call. It’s true for a domestic violence incident. It’s true for a traffic stop. It’s true for everything.”

This is one potential reason, experts said, that the US has far more police shootings than other developed nations. A 2015 analysis by the Guardian found that “US police kill more in days than other countries do in years.” Between 1990 and 2014, police in England and Wales shot and killed 55 people.

The Vox study, conducted with a researcher at the University of Chicago, established  a correlation between weaker gun laws that facilitate higher rates of gun ownership and elevated numbers of killings by police officers. Correlation, of course, is not causation, but the results are suggestive. The researchers compared state-level gun laws to each state’s fatal police shootings.

The results: There is a correlation between killings by police officers and states’ gun control laws and gun ownership rates. The stronger the gun control laws, the fewer police killings. The higher the gun ownership rates, the more police killings. (You can see the raw data here and the comparison data here.)

As the researchers noted,

That suggests that while America has to address a whole host of issues to bring down its levels of police killings — from department-level policies to systemic racism — it also may be prudent to start thinking of police killings as inherently linked to America’s gun problem in general.

According to the article, the U.S. doesn’t have appreciably more crime than other countries, but we do have more violence associated with that crime. As one expert put it, people everywhere get into arguments and fights. But in the US, it’s much more likely that when a guy gets angry, he’ll pull out a gun and shoot someone.

There’s an old saying that even paranoids have enemies. Police who mistake wrenches and cell phones for guns are wrong, and they need to be trained to verify first rather than shoot first. But America’s gun culture is one reason they’re paranoid.

Jeff Sessions And His War On Pot

Given the daily headlines generated by this Administration–everything from porn star lawsuits and tariffs to the escalating exodus from the White House (Bill Maher opined that this is the largest rush to exit since the British burned it)– it may have escaped most people’s notice that various cabinet officials are making a valiant effort to take America back to the last century.

Nowhere is that effort more concerted than in Jeff Session’s Department of Justice.

Sessions has refused to enforce consent decrees with various police departments. He has rolled back anti-discrimination measures. He’s re-instituted civil forfeitures (one of the few measures uniformly condemned by civil libertarians, criminal justice experts, and politicians from both parties). His retrograde policies about immigration have led him to sue California for its sanctuary efforts. His “tough on crime” initiatives ignore 25 years of criminal justice research.

But it is his unrelenting insistence on reinvigorating the discredited War on Drugs that best illustrates his passion for returning us to the 1950s. So it will be interesting to see what eventually happens with a lawsuit first filed last November.

Alexis Bortell, along with her father and other plaintiffs, including former NFL player Marvin Washington, filed suit in the Southern District of New York against the attorney general as well as the Department of Justice and the Drug Enforcement Agency….

Alexis, whose family moved to Colorado from Texas to take advantage of the state’s legalization of recreational and medical marijuana, had been suffering since she was 7 from a form of epilepsy that cannot be safely controlled with FDA-approved treatments and procedures, the lawsuit says.

As a result, she often had multiple seizures a day. “Nothing she tried worked,” the suit states. When her family finally tried a form of marijuana, the girl found “immediate relief from her seizures.”

“Since being on whole-plant medical Cannabis, Alexis has gone more than two years seizure-free,” the suit says.

 Alexis won’t be able to return to her native Texas where she qualifies for free college, because she would be subject to arrest if she continued to use marijuana to control her seizures.

Unfortunately, in February, the Judge dismissed the claims, citing precedent.

The Second Circuit has already determined that Congress had a rational basis to classify marijuana as a Schedule I drug,” Hellerstein writes, “and any constitutional rigidity is overcome by granting the Attorney General, through a designated agent, the authority to reclassify a drug according to the evidence before it. … There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind.”

However, Hellerstein immediately follows this conclusion with a paragraph suggesting that he is sympathetic to assertions that marijuana has medical uses.

“I emphasize that this decision is not on the merits of plaintiffs’ claim,” he points out. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives, One plaintiff in this case, Alexis Bortell, suffers from intractable epilepsy, a severe seizure disorder that once caused her to experience multiple seizures every day. After years of searching for viable treatment options, Alexis began using medical marijuana. Since then, she has gone nearly three years without a single seizure.”

Alexis wasn’t the only plaintiff: she was joined by six-year-old Jagger Cotte, who treats with cannabis for Leigh Syndrome, a horrible, terminal neurological disorder; former NFL linebacker Marvin Washington, who makes cannabis-based products for head trauma; Iraq War veteran Jose Belen, who suffers from post-traumatic stress disorder and was given the option of “opioids or nothing” from the Veterans Administration; and the Cannabis Cultural Association, a nonprofit concerned with racial disparities in drug policy enforcement.

All indications are that the dismissal will be appealed to the Second Circuit, and no matter who wins there, probably to the Supreme Court. Meanwhile, Jeff Session’s Justice Department will continue to ignore both the overwhelming consensus of research and the undeniable, abject failure of the 20th Century’s drug war.

In Trump’s America, of course, evidence and expertise are irrelevant.

My Friend The NRA Member

My friend Pierre Atlas is a political science professor who teaches at Marian University, where he directs the Richard Lugar Franciscan Center for Global Studies. He is also a lifetime member of the NRA–and if survey research is to be believed, his attitudes are far more representative of rank-and-file NRA members than the lunatic positions taken by that organization’s leadership–not to mention, their “bought and paid for” Senators and Congresspersons.

Pierre writes a periodic column for the Indianapolis Star, and in his most recent one, listed a number of realistic, reasonable steps we could take to curb gun violence.

He began the column by recognizing the practical difficulty of simply eliminating AR-15s.

Some people want to ban AR-15 platform rifles. But even if this could pass constitutional muster, given that the AR-15 is possibly the most popular rifle in America and there are millions of them in circulation, doing so would be politically and logistically difficult, if not impossible. On the other side, we hear the standard refrain, “Now is not the time to talk about guns,” or “this is not about guns, it’s about mental health.”

Clearly, this shooter — who I will not name — had serious problems and telegraphed his violent intent on social media. But he didn’t commit his crime with a butter knife.

Pierre writes that America has a gun problem, and that it is always the right time to talk about it. He then offers a beginning prescription:

In addition to enforcing all the laws already on the books, here are 10 practical, pragmatic things Congress or state legislatures can and should do now, which I believe most Americans, including most gun owners, would support:

•Universal background checks

•Mandatory reporting of stolen guns

•Prohibit gun purchases for people on the no fly list

•Allow the Centers for Disease Control to collect and analyze gun violence data

•Ban the manufacture, sale and possession of bump stocks, which allow semi-automatic weapons to mimic full-automatics

•Require safety training for all carry permits

•Mandate that a purchaser of any firearm, rifle as well as handgun, must be 21

•With court orders and due process, remove guns from homes in cases of domestic violence or openly stated threats to others

In addition to these eight items, Congress should hold hearings with expert testimony to explore legislation addressing the following controversial issues: Reporting of potentially violent mental health cases and the building of a data base; and regulating social media content for threats of violence.

With 300 million guns in American homes, we aren’t going to enforce wholesale bans on categories of weapons, even if such approaches were constitutionally and politically feasible. But the only impediment to proceeding on the basis of Pierre’s list is political will; these steps are clearly both constitutional and practical.

The items on this list all address the stupidity of excessive solicitude for the tender sensibilities of the gun lobby, but two in particular are aimed at policies that have long infuriated me: the ban on CDC funding for research on gun violence, and allowing people on the no-fly list  to buy guns.

Evidently, people too dangerous to allow on a plane aren’t too dangerous to arm.

But it is the refusal to fund research that is particularly telling. Talk about legislation that “sends a message”! The message is, “We don’t want data. We suspect we know what that research might find, so we aren’t going to allow it. No evidence-based policy for us!”

These are sensible, “do-able” measures. Let’s make them happen. And then let’s work on changing the culture than has convinced fearful folks to amass personal arsenals.

 

Americans Need To Grow Up

The ubiquity of social media has created a whole new category of problems, especially for lawmakers and parents. Much of the consternation is understandable and many of the concerns eminently reasonable. But when technology and social media meet America’s deeply-rooted sexual prudery, we get some very unfortunate (not to mention marginally insane) results.

A recent case from Minnesota is illustrative.

A 14-year-old girl is facing charges in Minnesota juvenile courts that could lead to her being placed on a sex offender registry—all for taking a nude selfie and sending it to a boy at her school. Prosecutors say that she violated Minnesota’s child pornography statute, which bans distributing sexually explicit pictures of underaged subjects.

Words fail.

A 14-year old girl showed an absence of good judgment. (That’s sort of the definition of a 14-year old…girl or boy.) This sort of behavior clearly calls for parental intervention; what it just as clearly doesn’t call for is placement on a sex-offender registry.

Parents, schools, and law enforcement around the world are wrestling with how to handle teen sexting. In 2014, a teenage boy in the UK was added to an investigative database after sending a nude snap to a classmate. The Supreme Court in Washington state recently upheld the child pornography conviction of a 17-year-old boy who sent a picture of his erect penis to a 22-year-old woman.

We can expect to see more of these cases in the future because surveys suggest that it’s a common activity among underage teenagers. One recent survey found that 12 percent of 12- to 17-year-olds had sent a sexually explicit image to someone else in their lifetimes—including 4 percent who had done so in the last month. That adds up to millions of teenagers who could be classified as child pornographers by the reckoning of Minnesota officials.

I don’t have a solution for this problem, but I’m pretty sure that labeling impulsive and hormonal teenagers sexual predators and giving them criminal records that will follow them through their adult years–affecting their abilities to get jobs, enter universities and rent apartments–isn’t the way to go.

For some reason, Americans have never seen sex as simply a natural part of life. (Hester Prynne isn’t the only woman who has been humiliated by that A.) That historical prudery, ironically, has intensified interest in–and consumption of– pornography and other sexually-explicit materials. Anyone who ever raised teenagers understands the attraction of the forbidden. It’s like drinking–French children who are accustomed to wine with dinner are much less enamored of alcohol than the suburban offspring of uptight parents who lock their liquor cabinets and lecture their children about the evils of drink.

We really need to grow up.