On the Striking Absence of Due Process Discussion in the Killing of Mohammed Emwazi

The American media today are discussing the apparent killing, via an American drone, of the British citizen Mohammed Emwazi, known as Jihadi John.  But in the endless reports that NPR has run about this incident, I have heard not a single comment about whether the killing was lawful or adhered to any standard of due process at all.

One New York Times article states: “Civil liberties advocates have criticized any official British attempt to kill Mr. Emwazi as possibly unlawful” and notes that Labour leader Jeremy Corbyn stated “it would have been far better for us all if he had been held to account in a court of law.”

Scarcely a peep from politicians or the media on this side of the pond, though, about whether what our government did was legal.  (Glenn Greenwald notes that at least some voices are skeptical.)

Perhaps this should not be surprising given how little concern there was in 2011 when the United States killed one of its own citizens, Anwar Al-Awlaki, via drone with nothing resembling due process.   (Awlaki’s 16-year-old son, Adulrahman al-Awlaki, an American citizen, was also killed by the American government via drone strike in 2011, again with no due process, and again with no particular notice or concern by his fellow citizens.)  At this point, as long as the label “terrorist” is affixed to whoever gets killed, many Americans no longer even think to ask whether the government needs legal justification to do the killing.


Teague Bar in the Jones Case

A Ninth Circuit panel yesterday reversed the district court’s decision in Jones that California’s death penalty was unconstitutional.  The appellate ruling is based on the rule of Teague v. Lane, 489 U.S. 288 (1989), which prevents novel constitutional theories from being asserted via habeas. This outcome is not surprising, given the procedural gymnastics that were necessary for the district court simply to get to the merits of the issue it addressed.

I haven’t though carefully about it, but given the procedural bar, it doesn’t seem that Jones would be a particularly good vehicle to pursue the Constitutional challenge to California’s death penalty in the United States Supreme Court.  As with so much other habeas litigation, the substantive issue that’s actually at stake would most likely get entirely lost in the procedural weeds.

Does Maryland v. Kulbicki Misstate the Strickland Standard for Showing Ineffective Assistance of Counsel?

The Supreme Court came out with a per curiam reversal in an IAC case this week, Maryland v. Kulbicki. The opinion contains the following formulation of the IAC standard:

Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are “so serious” that he no longer functions as “counsel,” and prejudicial, meaning his errors deprive the defendant of a fair trial. Strickland v. Washington, 466 U. S. 668, 687 (1984).
This makes my eyebrows go up, and not in a good way.  The notion that the performance prong of Strickland requires a showing that the lawyer “no longer functions as counsel” is drawn from language in Strickland but modifies what Strickland actually says in a way that is problematic.  What Strickland says is the following:
 First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
The correct standard, then, is that first-prong IAC occurs if the lawyer is not functioning as the “counsel” guaranteed by the Sixth Amendment — i.e., as “effective” counsel.  The way a court determines whether the lawyer was performing effectively is spelled out in the following paragraph of Strickland: it requires a showing “that counsel’s representation fell below an objective standard of reasonableness.”
Kulbicki reworks this standard by removing the Sixth Amendment reference, with its implicit “reasonableness”-based approach to the assessment of effectiveness, and stating more categorically that the lawyer must “no longer functio[n] as ‘counsel,'” — as if the IAC standard under Strickland required a showing of a wholesale deprivation of counsel of the sort discussed in United States v. Cronic, 466 U.S. 648, 659 (1984).  The Kulbicki formulation of the standard implies, in a way that Strickland does not, that a lawyer needs to be literally missing from the courtroom or unconscious at the counsel table before IAC occurs.
One might say this is just splitting hairs, but I can already see the arguments coming in which IAC claims are disparaged for merely showing that the lawyer made terrible choices but not demonstrating that the lawyer was “no longer functioning as counsel.”  Indeed, this post was prompted by a discussion of Kulbicki over at Crime and Consequences, which notes that “No longer functioning as counsel is a very low standard, a performance so dismal that very few such claims should be granted.”  That might be right, but again that is not quite what Strickland says, nor is it what the Strickland IAC standard actually requires.  IAC can occur well before performance drops to the level of being “dismal,” because the actual standard (at least in theory, though often not as actually applied by appellate courts) merely requires the performance to be below what is objectively reasonable.

NYT on AEDPA and the Mess that Is Federal Habeas

Emily Bazelon has a piece in this week’s New York Times Magazine all about AEDPA and its impact on the ability of federal courts to perform any substantive review of criminal cases that went seriously awry in the state court.  A basic point emphasized in the piece, which should be of concern even to regular folks who don’t care much about criminal law, is that the requirements of AEDPA have not reduced federal court workloads at all, and have instead had the opposite effect.  AEDPA, Bazelon writes, has

failed at its stated aim of reducing time-consuming appeals. According to a 2007 study by Nancy J. King, Fred L. Cheeseman II and Brian J. Ostrom, the time courts spend processing habeas cases has actually increased on average. “To the extent that [the law’s] provisions were designed to streamline the overall processing of individual cases, that result has not been achieved,” the authors concluded.

What are federal courts doing with that extra time? As I mentioned the other day, they are “handling questions about procedural default, exhaustion, statutes of limitations, tolling, and so on, instead of looking at the substance of habeas claims.”

If we want to spend big chunks of taxpayer money paying federal judges to fritter away their days analyzing hair-splitting procedural technicalities that almost nobody understands or cares about, AEDPA is a smashing success.  But many folks feel that the goal of pursuing essentially fair results has gotten lost in the swamp of technical gobbledygook, even as the time spent to dispose of these claims has continued to creep upward.  Among the folks who are concerned, Bazelon notes, are Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski, both of whom have recently published articles that are sharply critical of AEDPA.

Related Posts:

AEDPA Turns 19 Today. Wear Red Tape to the Party.  (April 24, 2015)

Doody v. Ryan: Is Federal Habeas Review Just “a Big, Fat Rubber Stamp?”  Is Deference a “Blindfold”? (May 10, 2011)

Blistering 11th Circuit Dissenters Declare Habeas “Dead in This Country,” Suggest that AEDPA Has Suspended Habeas (May 20, 2011)

Will the California Style Manual Be Entering the Modern Internet Era Any Time Soon?

A tweet from David Lat of Above the Law linking to his inclusion in an example blog citation in The Bluebook raises the following question in my mind: will the California Style Manual, the 4th and most recent edition of which was released 15 years ago, in 2000, be entering the modern era of the Interwebs any time soon?

Blogs barely even existed in 2000. Twitter did not exist at all. The CSM’s discussion of “computer-based sources” in section 3.15, while not totally useless, leaves the reader guessing when it comes to the proper style for citations to a wide range of contemporary sources available online.  I’d still rather use the CSM than the Bluebook, which I can’t stand.  But it might be time for an update!

Related Posts:

Just Because It’s Latin, That Doesn’t Mean It Should be Italicized (Oct. 3, 2012)

People v. Morales: Polygraph Test as Factor Contributing to “Custody” for Miranda Purposes

What effect does it have on a person’s custodial status when they are subjected to a long and aggressive polygraph examination and are repeatedly told they “failed”?   People v. Morales (D067411), published Tuesday by 4/1, concludes that this kind of test can (along with other factors) result in a person being in custody, such that Miranda warnings need to be given for an interrogation.  As the court notes in footnote 8 of the opinion, this appears to be the first published case in California directly addressing this issue.

Polygraphs and Custody: You're free to leave at any time, as long as the machine says you're telling the truth...

This is interesting because the use of the polygraph in Morales is just one of a range of techniques that can be employed to turn the screws on a defendant who is (supposedly) “free to leave.”  Telling a suspect he failed a polygraph is not necessarily any more coercive than lies about evidence, lies about DNA tests, minimization techniques, and so on. And while our courts have concluded that it’s just dandy for police to lie to defendants in interrogations about seemingly critical facts, and that such lies don’t necessarily render confessions involuntary, Morales suggests that these kinds of pseudo-scientific psychological pressures do need to be factored into the question of whether a person is in “custody.”

Morales is also worth a read because of the absurd length and utterly nonsensical (but nevertheless very intimidating) quality of the interaction between the polygraph administrator and the defendant.  It’s a cliche of criminal law writing to suggest that a scenario that played out in a case was “Kafkaesque,” but it’s hard to know what else to say about a situation where a guy is hooked up to a machine spitting out results that may or may not be meaningless and is being told things like:

[Y]ou took the test and it’s not turning out well. If I can, I can change the questions but you have to tell me the truth about everything that happened, do you understand?


“[Defendant]: Yes, I understand you.


“[Heard]: The truth is missing. It’s very important that the truth come out. Where do you want to start? Because there are things that are in your heart that still are not written down on this paper. You have to tell me what the truth is because you have a problem here. When it comes out of here, everything will go well. But it turned out badly because there are still things in your heart that are missing about Jesus [Trejo]. What’s missing?

Perhaps it’s not Kafka that is being channeled here but Colonel Ripper from Dr. Strangelove.  The only thing missing is a monologue about the defendant’s precious bodily fluids.


Was TRED – the Database in the OC Scandal – Unique?

Of the many curious details involved in the still-evolving Orange County jail informant scandal, one that has me particularly intrigued is the way the law enforcement database  involved in that case managed to stay undisclosed for so long.  As R. Scott Moxley wrote in the OC Weekly:

For a quarter of a century, the Orange County Sheriff’s Department (OCSD) operated one of the nation’s longest frauds on the criminal-justice system through a secret, computerized records system called TRED. . . . The few TRED records that have been pried free are a treasure trove of exculpatory evidence hidden from trials that resulted in prosecution victories over hoodwinked defendants. The records also clearly reveal that Southern California law-enforcement officials run a jailhouse-informant program that habitually tramples the constitutional rights of pretrial defendants. . . . [O]utsiders . . .didn’t know TRED existed until recent months, in part because deputies generically referred to the system as “classification records.”

The coverup of the database went beyond these euphemisms.  Judge Thomas Goethals’ March 2015 order cites the testimony of one OC deputy who stated that he was trained from “day one” “never to mention the existence of the TRED records.”

This is interesting and troubling, but does not seem that unusual in the current law enforcement climate.  The Hemisphere surveillance program in which AT&T has partnered with law enforcement was shielded from public scrutiny for years by an explicit policy that the database should never be mentioned (see the Powerpoint slide below).  Which raises the question: how many other TRED-type databases are lurking out there on the hard drives of California law enforcement agencies? Somehow it seems unlikely that this is a unique situation, even if Orange County happens to be in the hot seat for it at the moment.

Hemisphere: The first rule of secret law enforcement databases is, we don't talk about secrete law enforcement databases.


Cal Supremes Grant Review in CPRA case on Legal Invoices and Violence against LA Jail Inmates

A California Public Records Act case pitting the ACLU against Los Angeles County in a battle over legal invoices is heading to the California Supreme Court.  The court granted review last week in Los Angeles County Bd. of Supervisors v. Superior Court (S226645).  The case concerns the ACLU’s efforts to learn how much the county has spent on lawyers to defend against allegations that Sheriff’s deputies have used inappropriate violence against County Jail inmates.

Obviously there are some attorney-client confidentiality issues implicated by that inquiry, but the countervailing interest in access to public information is also weighty.  The ACLU argued that it should be able at least to discover the amounts billed, as long as everything else on the invoices is redacted.   In the underlying opinion in the court of appeal (2/3), the ACLU lost.  We’ll see what happens this time around.

On Suggesting the Prosecution Gain a “Competitive Advantage” by Dumping Data on the Defense in a Cumbersome Format

Check out this 45-second snippet of a June 2015 Cellebrite webinar for prosecutors, in which the Cellebrite spokesman suggests that folks on the law enforcement side can get a “competitive advantage” over the defense by dumping a cumbersome 6,000-page PDF on the defense rather than providing the same information in the considerably-more-user-friendly format that can be parsed with the free UFED reader.

This is annoying, but perhaps it’s not all that surprising either, given who the audience is.  The main thing is that folks on the defense side need to insist on getting forensic documents in a useful format (and also to know enough to know that PDF ain’t the format).  It might not hurt, either, if the Cellebrite folks encouraged law enforcement to be transparent about discovery rather than actively suggesting ways to obfuscate.

Cellebrite: prosecution gets “competitive advantage” by handing over cumbersome pdf from Alex Coolman on Vimeo.

The Real Story Behind the Drop in Wiretaps

The San Diego Union-Tribune reported yesterday that San Diego saw a “drop” in wiretaps in 2014 versus the prior year.  But what’s really going on?  That San Diego trend is consistent with the nationwide pattern in the 2014 wiretap report, which reported a 1% overall decline in wiretaps.

But this seemingly pro-privacy trend is the opposite of what it appears to be.  Law enforcement is not listening less often.  Law enforcement is merely seeking court approval less often, and resorting instead to warrantless, unregulated interception of cell phone traffic via Stingrays. Why would law enforcement bother with a wiretap request if it could use a Stingray to accomplish its goal and never have to deal with a judge?  Best of all, from law enforcement’s perspective, is the fact that defense lawyers can be kept in the dark about the use of the Stingray, making a suppression motion virtually impossible.

Law enforcement is also routinely refusing to release information about the use of Stingrays, the better to head off litigation.  But the litigation is happening anyway, including here in San Diego, because of the obvious concerns that the Fourth Amendment is simply being disregarded.

A related piece of this overall trend is that forensic searches of smartphones have become very common sources of rich information for law enforcement.  Before the SCOTUS Riley decision in June of 2014, no warrant was required to perform such searches, which can reveal location information, text messages, emails, photos, and on and on.  Even in the post-Riley era, our tendency to carry around virtually our entire lives on a smartphone has created substantial new avenues for law enforcement scrutiny — and has, in turn, reduced the need for the police to use wiretaps.

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