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Red[ ] Pepper and State Action

Today the Seventh Circuit handed down an interesting opinion analyzing whether a private actor (a man named Redd) acted under color of state law (and thus could be sued under 42 U.S.C. 1983) when the private actor stole his wife's (Pepper) property while a police served as look-out. [This is wrong.  See the update, below.]  In other words: Did the private party conspire with a state actor to deprive the plaintiff of his property?  The panel said no, in an interesting opinion you can access here.  Pepper v. Village of Oak ParkFor what it's worth, I think the panel got this one wrong.  When I have some time tonight I'll pull up the briefs to see whether the panel got it wrong because of poor advocacy.

UPDATE: Oops.  I totally misread the case.  The issue was not whether a Redd acted under color of law when he stole Pepper's property.  The issue was whether the police officer conspired with Redd to steal Pepper's property.  The panel absolutely got this one right.  The plaintiff's lawyer absolutely got this one wrong by not suing Redd.  There was a very strong argument that Redd stole Pepper's property only because he felt like he could get away with it since he had duped a police officer into keeping Pepper from stoping him.  When the presence of a state actor "enables" the private party to do some conduct, the private party might have acted under color of law.  Here, the plaintiff's lawyer didn't even argue this.  That was, in my view, a major tactical mistake.

UPDATE2: I'll have much more to say about this case once I finish today's work.

Strange Appellate Opinion of the Day

Today a three-judge panel of the Ninth Circuit addressed with this issue: "[W]hether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned."  U.S. v. Lombera-Valdovino (here).  A 2-1 panel said, No.  "We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint."  So the person who illegally re-enters the country with the intent to go to prison will not be allowed to go to prison, because illegal re-entry for the purpose of going to prison is not a crime.  How bizarre!

What Would Gerry Do?

Years ago, I was on the staff of Gerry Spence's Trial Lawyer's College. I fled when it began to feel more like a cult than a college. Still, the ghost of Gerry lingers, and his boast that he never lost a criminal case haunts me like a challenge I cannot meet. I sometimes wonder, what would Gerry do?

Today is one of those days. In the midst of gang-rape trial. Victim just testified. My client's DNA and fingerprints are at the scene. She can't identify him, but one of his cohorts, who turned state's evidence, can.

Yesterday we endured the tearful testimony of the victim, a lovely young woman who went through Hell. Today it's my turn to cross examine her. It is not really the worst set of facts I have defended. That disctinction probably goes to the case in which three daughters testified about their sodomizing father. But I am afraid of this witness. The linked press account recounts well the sum of her testimony. Ouch

I know what Milton would counsel. Hear Satan as he gathers his wounded forces after they are banished from Heaven:

"Consult how we may henceforth most offend

Our enemy, our own loss how repair

How overcome this dire calamity,

What reinforcement we may gain from hope,

If not, what resolution from despair." Paradise Lost.

Resolution from despair. It sometimes seems like a defense lawyer's motto.

But what would Gerry do?

Thanks to F. Lee Bailey

I was in the chambers of a federal court judge this afternoon with F. Lee Bailey, who, although not practicing law, finds himself in the thick of things. (Ask for more details, and I will not divulge them.)

Once our business was complete, talk turned to an autographed photograph of Willie Mays on one of the judge's bookshelves.

"Did you know, your honor, that thanks to Willie Mays, O.J. Simpson turned away from a life of crime and became a famous athlete?" Bailey said to the judge.

Before a thought could form in the judge's mind, I found my hand on Bailey's shoulder and said the following:

"Did you know, judge, that thanks to F. Lee Bailey, O. J. Simpson is not a murderer?"

It was the only time I have ever seen Bailey tongued-tied, even if only for an instant.

Are People Convicted of the Death Penalty Really Guilty?

Daniel Givelber, director of Northeastern's Innocence Project, has written an article that is scholarship informed by experience.  Report from the Certiorari Clinic: Impressions of Routine Capital Cases.   Especially interesting is the second half of the article.  In What the Clinic Cases Reveal: Capital Cases and Doubt, Prof. Givelber notes:

The quality of the evidence [in death penalty cases], as well as its character, is also striking. In a number of cases (a little more than 10% of the eighty-one examined) the evidence of guilt referenced on appeal is either less overwhelming than or, at most, the equivalent of that presented in cases in which death sentences were followed by DNA exonerations.... In two other cases the defendant was convicted based upon the testimony of a co-defendant against whom all charges were dropped.... Another death sentence resulted from a conviction based upon evidence that the defendant was one of two people who was with the victim on the night in question and that he (an African American) had previously abused three white women (the victim was white). A Pennsylvania defendant was convicted and sentenced to die after two hung verdicts based on the evidence of an eyewitness who testified he knew the defendant by his first name and another witness who said that he saw the defendant with a gun of the make used in the robbery (the gun was never recovered). A Mississippi jury convicted and sentenced a defendant to death on evidence that blood was found on the three-year-old victim, that he was the last person seen with the victim, and had a forty-minute window in which to commit the crime, and that the nineteen bite marks on the victim’s body matched dental impressions of the defendant.

The full article is here.

Did Texas Execute an Innocent Man?

PrawfsBlawg's Dan Markel explores the question in this interesting Slate piece.  Here is a taste:

Two years ago, Hollywood released The Life of David Gale. Its fictional protagonist, Gale, played by Kevin Spacey, is a professor and anti-death-penalty activist in Austin, Texas, who—following a couple of bizarre events—soon finds himself mistakenly convicted of killing a fellow activist and on Texas' death row. Gale decides to reveal his innocence to a magazine journalist, but he does so only in the last three days preceding his scheduled execution. Gale realizes that the machinery of death will not halt until and unless an innocent person is executed. Seeing that his abolitionist cause will be better served by his execution than his exoneration, Gale decides to sacrifice himself upon this altar.

For a long time, death-penalty abolitionists have feared (and perhaps secretly hoped) that a real David Gale would report for duty. And as detailed in last week's Houston Chronicle, compelling evidence now shows that Texas executed an innocent man named Ruben Cantu 12 years ago.

You can read the full piece here.

Beware The P300 -- Honest!

If you thought genetics posed challenges to the development of law and legal dotrcine, you haven't seen anything yet. Developments in neuroscience are rapidly providing insight into the structure and function of the brain. Does that mean we will soon understand the contents of our minds? And, if so, what then of the law, where factfinders struggle with mental states, memory and truth?

I could not put down Neuroscience and the Law: Brain, Mind and the Scales of Justice. It kept me up all night -- in the middle of trial, I hasten to add. Edited by Brent Garland on behalf of the American Association for the Advancement of Sciences, the book is a collection of four papers and a discussion. The papers were presented at an invitation-only symposium of neuroscientists, legal scholrs, judges and lawyers to explore the sorts of issues likely to arise in years to come as neuroscience advances.

Are lie detectors unreliable? Fine. How about charting the P300 brain wave, which is activated when a person knowingly fails to be truthful, or lies? Farfetched? This business of Brain Fingerprinting, as it is know, was admitted into evidence in Iowa not long ago. Harrington v. Iowa, PCCV 073247 (Pottawattamie County D.C. Iowa, 2000).

Are pyschological tests unreliable in part because they rely on self-reporting? Then let's eliminate the danger of malingering by going right to the source of cognition, the neural circuitry than underlies and, perhaps, forms the mind.

And what of downloading the contents of a brain onto a computer? Or, perhaps, transplanting part, or, indeed, all, of a brain from one body -- I almost wrote person -- to another.

The law routinely accommodates changes in science. Computer-generated evidence is now common in the courts. The various iterations of the Daubert tests across the nation permit the results of new science to be admitted into evidence as it becomes available. But science teetering on the very verge of eliminating the disctinction between mind and body? That is, pun intended, mind-blowing.

Neuroscience already points to abnormalities in the brains of those exhibiting signs of consciencesless sociopathy. A specific gene has been located that is associated with aggression, and a variance from the norm may account for certain forms of criminality. How will the law respond to this information? Shall we quarantine those set to explode?

Of the four essays in this book, Laurence Tancredi's, clinical professor of psychiatry at New York University and an attorney, is the most challenging. I was unaware of how sophisticated the technologies used for brain imaging had become. His chapter inspired me to read further.

The brief chapter on free-will by Michael Gazzinga and Megan Steven is a huge disappointment. Gazzinga is at the Center for Cognitive Neuroscience at Dartmouth College, and Steven is at the University Laboratory of Physiology at Oxford. They dabble at philosophy and yield the trite conclusion that the person is a social contruct, and we are therefore free. This question-begging linguistic trick is unworthy of the AAS symposium. Why wasn't a credible philosopher invited to this event? The law is, after all, nine parts unstated and, for the most part, unexamined philosophic commitment.

The two final papers int the volume, by Henry Greely and Stephen Morse, are fantastic. They steer between trite conclusions of Gazzinga and Steven and the complexity constructed by Tancredi. Both papers are reliable issue-spotting devices.

Perhaps the best thing about the practice of law is the ever changing terrain. It may be that the human dramas unfolding in the courtroom are old and repetitive, but the manner in which facts can be explored grows ever more complex. Advances in neuroscience promise tremendous excitement and turbulence in the law in years to come.

The Dana Press, which published Neuroscience and the Law will send a free 30-page summary report of the conference on which the book is based. Contact Randy Talley at [email protected].

The Latest Blawg Review...

... is up at Phosita, an excellent business-law blog.  There are a few posts of interest to C&F readers, including this one:

The Rule of Law and Secrecy: CIA Prisons and the Plame Affair  - Jerry Monaco comments on one of The Washington Post's articles on the CIA secret prisons.  According to Jerry, the story proves that for the ruling class of the U.S. "the rule of law" and "due process" is applied selectively.

And this one:

F/K/A - David Giacalone never ceases to amaze me with the stories he finds, and this is a gem. "During a traffic stop on various violations, [the motorist] told an officer that there was a gun on the back seat of his vehicle, but it didn't work and he was repairing it for a friend. Tests showed that the gun was inoperable, and thus could not be the basis for a charge of criminal possession of a weapon. However, the innovative Assistant Schenectady County District Attorney, Martin Burke, decided to seek an indictment based on [the motorist's] intent to repair the weapon and thus make it operable."

You can read the latest Blawg Review here; you can learn more about Blawg Review, including how to join the fun, by following this link.