“The Power That I Have On You Is To Spare You”

While instant messaging a high school friend yesterday, she mentioned that she had just seen the final episode of The West Wing on DVD (in which outgoing president Josiah Bartlett pardons ex-Director of Communications Toby Ziegler from a conviction for leaking national security secrets to The Washington Post), and then linked me to a recent Slate article handicapping President Bush’s potential pardons, while commenting that “maybe if Bush was more like Bartlett, he wouldn’t have to pardon so many of his cronies.” I commented that President Clinton (and most other presidents) have done the same thing, which caused her to rephrase her statement by replacing “Bush” with “all the real presidents.”

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

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Seventh Circuit Week in Review: More and More on the Use of Prior Crimes Evidence

The Seventh Circuit had two new opinions in criminal cases in the past week, with the government winning both appeals.  By some coincidence, both cases involved the use of prior crimes evidence at trial, a topic that was also the focus of my last “Week in Review” post.  Indeed, one of this past week’s cases was strikingly similar in its facts to Perkins from the previous week, but was analyzed in a rather different manner.

United States v. Webb (No. 08-1338) was the new case similar to Perkins.  Webb was arrested in connection with the discovery of drugs in the house of his friend Hartman.  At Webb’s trial on drug trafficking charges, the government introduced into evidence Webb’s 1996 conviction for distributing cocaine.  Following his conviction on the new charges, Webb argued on appeal that this evidence violated Federal Rule of Evidence 404(b), which prohibits the use of prior crimes evidence for the purpose of establishing a defendant’s propensity to commit new crimes.  In response, the government argued (precisely as it had in Perkins) that the prior crimes evidence helped to establish intent and absence of mistake, which are two permissible purposes for such evidence.  In last week’s post, I argued that the Seventh Circuit accepted these arguments too uncritically in Perkins; based on the reasoning of that case, it was hard for me to see how prior drug trafficking convictions would ever be kept out of evidence in new drug distribution cases.

But in Webb, the Seventh Circuit (per Chief Judge Easterbrook) correctly recognized how tenuous the government’s intent/mistake theory was.  The court also recognized the “tension” in its prior cases regarding the use of prior drug crimes evidence.

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Pitfalls of Plea Bargaining

One of my former students recently sent me this link to a great Frontline program on plea bargaining. The program is four years old, but remains a timely and engaging exploration of some of the important plea-bargaining issues that I cover with my Criminal Procedure students, including the liberal use of “trial penalties” (i.e., longer sentences for defendants who exercise their constitutional right to go to trial) by judges and prosecutors to induce guilty pleas, the poor advice provided by some defense lawyers in connection with plea offers, the intense pressure experienced by even innocent defendants to plead guilty when they are unable to make bail and are forced to endure months of jail while awaiting trial, and the difficulty of correcting false guilty pleas once they are made. Although there are many abuses and miscarriages of justice associated with the American plea-bargaining system, it is too simplistic to say that plea-bargaining should be banned. Many of the same factors that lead to guilty pleas by innocent people (incompetent defense counsel, prosecutors more concerned about securing convictions than doing justice, an overstretched and often careless court system) seem just as likely to lead to convictions of innocent people at trial. As I have argued elsewhere, the goal should not be to abolish plea-bargaining, but to make the plea-bargaining system work better, particularly by insisting that prosecutors appreciate that they are functioning in a quasi-adjudicatory capacity when they decide what deals to offer which defendants — and hence ought to observe basic principles of procedural justice that are now too frequently ignored in the rush to secure convictions.

Thanks to Jessica Franklin for sending me the link!

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