Criminal Law
Is the Bar to Blame for the Public Defender Crisis?
There have been a number of articles lately regarding the dire state of state public defender systems. This has left me wondering whether state bar associations share some of the blame for the public defender crisis. First, it bears considering what exactly the problem is. In many areas, there are insufficient numbers of employees in public defender offices to adequately satisfy the need for these...Read More
Due Process in Probation Revocation Hearings
Texas prosecutors continue to assert that probation revocation proceedings are administrative in nature, and that therefore a defendant facing a probation revocation proceeding has only the rights required by due process. At the outset, it is essential to realize that the Court of Criminal Appeals of Texas explicitly held in Ex Parte Doan that these are not administrative proceedings. 369 S.W.3d 205,...Read More
When Does Jeopardy Attach?
Recently I was discussing the law of when jeopardy attaches with some colleagues. When jeopardy attaches is important (among other reasons) because once jeopardy attaches, if the prosecution decides to drop the case, subsequent prosecution for that offense is barred by the Fifth Amendment. When does jeopardy attach for the purposes of the Fifth Amendment? At first blush, the answer...Read More
Discretion and Probable Cause
I recently came across a book entitled Three Felonies a Day: How the Feds Target the Innocent, by Harvey Silverglate. While the premise is provocative—you or I could unwittingly be committing numerous felonies every day—it turns out that the book doesn’t deliver on the promise. Silverglate wants to show that federal statutes and regulations are dangerously vague and/or overbroad, and that...Read More
Kozinski on Criminal Justice, Part 2
In my last post, I wrote about Judge’s Kozinski’s recent Georgetown Law Journal article on the foundational presumptions in criminal law, and how both research and experience show these presumptions to be wrong. Judge Kozinski’s conclusions on the shakiness of the foundations of the criminal justice system lead to two concerns: first, that more—perhaps many more—defendants are wrongfully convicted than we are willing to...Read More
Judge Kozinski on Criminal Justice
Last week, I posted on the presumptions the law (and the judges who implement it) makes in the area of citizen encounters with police. In the latest issue of the Georgetown Law Journal, Judge Alex Kozinski, a brilliant and often enigmatic judge for the U.S. Court of Appeals for the Ninth Circuit, weighs in with a much broader overview of the basic yet erroneous...Read More