It's time to celebrate Cinco de Mayo and that also means it's time for DUI checkpoints. DUI checkpoints for the popular Mexican holiday will be set up throughout the Bay Area.
Prosecutors don’t have to actively search for or follow every lead that might lead to information that could help a defendant. But they do have to turn over information that’s favorable to the defense, even if the defense doesn’t ask for it. Defendants are therefore left in the potentially tenuous position of relying on the opposition to help them out, at least to a certain extent. They and their attorneys frequently have the concern (valid or not) that prosecutors have wrongly withheld helpful information. The question is: What, if anything, can they do about it?
The Search for Helpful Information
Though they have an ethical duty to achieve justice, not just to obtain convictions, prosecutors in an excess of zeal may fail to voluntarily reveal favorable information—that is, information that’s either exculpatory or impeaches the prosecution’s case in some way. Defendants should always be alert to the possibility that exculpatory information exists. Defense counsel may learn of it in one of the following ways:
- by finding a reference to helpful information in a document that the prosecution already turned over, or
- by actively investigating the case—for example, asking witnesses and police officers who are willing to talk whether they know of any information that might support the defense version of events. Defense attorneys and their investigators may take this tack before, during, and even after trial (in the latter instance, with an eye toward appealing a conviction).
Access to Police and Prosecution Files?
To defendants’ disappointment, neither they nor their attorneys are entitled to rummage through law enforcement documents and objects in search of favorable evidence. However, defense attorneys can file pretrial motions asking a judge to force a prosecutor to give the defense access to police and prosecution files, or at least to review such files and determine whether the defense is entitled to them. Judges won’t allow defense attorneys to go on “fishing expeditions”—rather, the defense must usually show in advance that there's a good chance the information is subject to discovery.
Consult Your Attorney
If you face criminal charges and have an attorney, consult with that lawyer as to how to make sure that the prosecution has turned over all mandated discovery. If you don’t have a lawyer, get one. Only an experienced criminal defense attorney can explain and navigate the ins and outs of the discovery process to make sure you have all the evidence you’re owed.
Some criminal defendants are better off negotiating with the district attorney early in their case to minimize the consequences.
Defendants who believe the case against them is very weak often ask whether it's possible to negotiate a dismissal before the arraignment. Unfortunately, this possibility generally exists only for defendants who hire private attorneys prior to arraignment. Defendants who are represented by court-appointed counsel often do not even have counsel appointed until the time of arraignment. And a self-represented defendant should not risk additional legal difficulties by discussing the case with a prosecutor before arraignment (assuming that a prosecutor would agree to meet with the defendant in the first place).
The Private Counsel Advantage
Defendants who hire private counsel before arraignment have a chance to derail the case for several reasons.
A weak case exposed
First, in most parts of the country, intake prosecutors (not the police) are supposed to analyze cases to make sure that there is evidence of guilt and that prosecution is in the interests of justice. Frequently, however, the caseload is so heavy that reviews are cursory, and weak cases sometimes slip into the pipeline. If an attorney who is well known to the courtroom prosecutor can convince that prosecutor of the weaknesses in the case, the case may get dismissed.
Away from the limelight
Before arraignment, no one in the prosecutor’s office has invested a lot of time or money in the case. With less invested, it's easier to let a weak case go.
A favor to overcrowded court dockets
Especially in urban areas, courtroom dockets (schedules) are crowded. By quickly disposing of weak cases, prosecutors can devote the little time they have to more serious cases. And disposing of iffy cases early on spares the courtroom prosecutor of the embarrasment of showing up in court with weak cases.
For all these reasons, if defense counsel can point out weaknesses that the intake prosecutor did not consider, or convince the prosecutor that further proceedings would not be in the interests of justice, a prearraignment meeting between the defendant’s attorney and the prosecutor may result in the case being derailed before arraignment.
Example: Redd Emption was arrested for carrying a concealed weapon. Rushing to make an airplane, Redd forgot that the gun he was supposed to leave at his house was still in his backpack. He was arrested when the airport metal detector revealed the gun. Redd has no prior arrests. The only reason that he had the gun in the first place is that a series of robberies had taken place in his apartment building, and his father had loaned him the gun for protection. Redd is out on bail and is scheduled for arraignment in a week. Thinking that his arrest is a misunderstanding, Redd is uncertain about whether to hire an attorney. However, a private attorney may be able to get the case dismissed before the arraignment. Redd’s attorney may be able to contact the arraignment prosecutor to seek a mutually agreeable outcome. Redd’s attorney can point out information that the intake prosecutor may not have been aware of—Redd didn’t own the gun; he had borrowed it for protection, and inadvertently had it in his backpack. Though Redd is technically guilty as charged, these factors may convince the prosecutor that trying Redd is not in the interests of justice. As a result, the prosecutor may agree to dismiss the case or offer Redd diversion (that is, agree to temporarily not file the charges and end the case permanently if Redd stays out of trouble for a period of time).
by: Sara J. Berman
A noncitizen of the U.S., whether an undocumented immigrant or a lawful permanent resident (a green card holder) needs to understand the immigration consequences of any crime that he or she is charged with. Conviction can, in many cases, lead to deportation (removal) from the United States.
It’s difficult to generalize about which crimes make a noncitizen deportable under federal immigration law. The analysis depends in some cases on whether the crime is a misdemeanor or a felony, and in other cases on whether the type of crime is specifically listed among the grounds for deportability (as are various drug crimes, domestic violence, child abuse, and more).
A common way for noncitizens to become deportable, however, is through conviction of an aggravated felony. Conviction of acrime of moral turpitude within five years of admission to the country is another.
Many noncitizens serve their sentences and are then deported (removed). The noncitizen may not find out about intended deportation until the last minute, when the immigration authorities place a “hold” on him or her.
For example, suppose that, eight years after her lawful admission to the country, Mia Palabra is convicted of possession of more than 30 grams of marijuana for personal use, a misdemeanor. Mia is subject to deportation even though the crime is a misdemeanor, because it qualifies as a drug offense.
For more detailed information regarding the immigration effects of criminal charges, see Crimes and U.S. Immigration. Noncitizens who have had an encounter with the criminal justice system should also consult an attorney experienced in immigration matters.
Showups bring suspects and witnesses or victims of a crime together in face-to-face meetings.
At a showup, a witness or victim is confronted with only one person rather than a group of people. And whereas lineups almost always take place in police stations, showups may occur in a station or in the field, even at the crime scene. A crime-scene showup is especially likely when the police capture a suspect shortly after a crime has occurred.
Because showups almost always take place before charges are filed, suspects don’t have a right to have an attorney present. (For more on the right to an attorney during identification procedures and a variety of information on identification law, seeEyewitness Identification.)
Research experiments haven’t demonstrated differences in reliability between identifications resulting from showups and those produced by lineups. Showups often take place soon after a crime, meaning that memory is less of a problem. But on the other hand, witnesses may still be under great stress when the police return soon after a crime with a possible suspect in tow. And nothing, short of telling the witness who committed the crime, could be more suggestive than presenting a single, in-custody person for identification. Further, regardless of what police officers say, an unsure witness might feel pressure to point the finger at the person on display.
One for Two
It’s possible that the police will require a suspect to participate in both a showup and a lineup. They might, for instance, conduct the initial showup, then arrange for a lineup after the filing of charges. At least theoretically, the lineup can substantiate the showup identification and provide a basis to determine whether additional witnesses can also identify the suspect as the perpetrator.
In deciding whether to admit evidence of a pretrial identification, judges don’t apply the same standard to all ID procedures. The burden is even higher for defendants seeking to suppress a showup identification: In most jurisdictions, the evidence comes in unless they can establish a “very substantial likelihood of irreparable misidentification.” (Simmons v. United States, 390 U.S. 377 (1968).) The questions that judges consider when determining the validity of a showup include:
- How carefully did the eyewitness observe the suspect during the crime?
- How closely does the suspect match the description that the eyewitness gave the police?
- How confident was the eyewitness that the suspect was the perpetrator? (Eyewitness identification research casts doubt on the legitimacy of this factor.)
- How much time elapsed between the crime and the showup?
Consult a Lawyer
Consult an experienced lawyer if you have been or might be the subject of an eyewitness identification procedure. Your attorney can determine whether you have a viable challenge to any ID that's occurred. If the judge admits evidence of the pretrial identification, your lawyer may be able to formulate an approach that causes the jury to doubt the witness.
The convicted soldier's quest for gender reassignment treatment may invoke the cruel and unusual punishment clause.
The phrase “cruel and unusual punishment” often relates to sentences for criminal defendants. But it can also apply to conditions those defendants face once they are imprisoned. Lack of food, physical abuse, and sleep deprivation are examples. But there’s an altogether new form of cruel and unusual punishment that courts have begun to recognize: failure to provide gender reassignment treatment to transgender inmates.
The Case of Private Manning
In July of 2013, a military judge convicted then Private Bradley Manning of 20 charges relating to his releasing hundreds of thousands of classified documents to WikiLeaks. Most of the convictions related to espionage, theft, and fraud. The judge acquitted Manning of the most serious charge of aiding the enemy. In August of the same year, the judge sentenced Manning to 35 years in prison. But it’s what came after the sentence that really stirred debate.
Shortly after the sentence, Manning announced that she would go by the name Chelsea and hoped to begin hormone therapy as soon as possible. The prison set to hold Manning quickly responded, pointing to military policy against “hormone therapy or sex-reassignment surgery for gender identity disorder.” The prison might not have a say in the matter, though, since the Eighth Amendment to the U.S. Constitution might require treatment.
Cruel and Unusual Punishment
The Eighth Amendment prohibits “cruel and unusual punishments.” In a 2012 federal case, Kosilek v. Spencer, a federal judge ruled that the Amendment mandated that the Massachusetts Department of Corrections (DOC) provide male-to-female sex reassignment to a prisoner. (889 F.Supp.2d 190 (D. Mass. 2012).) Medical professionals had diagnosed the prisoner with severe gender identity disorder and warned that suicide and self harm might result from non-treatment.
Prisoners have rights to basic life necessities, such as food, shelter, clothing, and medical care. So, prison officials showing “deliberate indifference to serious medical needs” violates the cruel and unusual punishment clause. Prisoners who can show a “substantial risk of serious harm” from lack of medical care—regardless of the care’s cost—will prevail on a cruel and unusual punishment claim. And the clause requires that prison officials treat the root of any medical problem, rather than treat it only to make it less painful. With these tenets, the judge in Kosilek held that the DOC had to provide sex reassignment to the prisoner in question.
Hope for Manning?
It’s difficult to say what will happen in Chelsea Manning’s case. First, medical professionals must confirm that treatment is medically indicated. Second, Manning must establish that she will suffer without it. And third, a court must apply the cruel and unusual punishment clause in the way that the Kosilek judge did.
If a court interprets the Eighth Amendment and gender reassignment this way, some military prisons will have to change policy. That is, unless that court is overruled. In short, a protracted legal battle may be in store.
For more on Chelsea Manning and gender reassignment, see From Bradley to Chelsea: Gender Reassignment in Military Prison.