Criminal Law & Process – Page 78 – Marquette University Law School Faculty Blog

Prosecutorial Discretion in the John Doe Investigation

Post author:Edward A. Fallone
Post published:January 28, 2012
Post category:Criminal Law & Process Election Law Public Wisconsin Criminal Law & Process

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.

How Should the Supreme Court Handle Warrantless GPS Tracking?

Post author:Michael M. O'Hear
Post published:January 20, 2012
Post category:Criminal Law & Process Legal Scholarship Public U.S. Supreme Court

One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here). The case concerns Fourth Amendment protections from GPS tracking of automobiles. The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks. For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance. Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb. Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach. The abstract appears after the jump.

Private Prisons and Accountability

Post author:Michael M. O'Hear
Post published:January 17, 2012
Post category:Criminal Law & Process Federal Civil Litigation Federal Criminal Law & Process Public U.S. Supreme Court

Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights. By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project. The report raises a multitude of concerns with private prisons, which may leave the reader troubled that the Supreme Court has now chosen to diminish the accountability of for-profit jailers.

Here are the (quite critical) conclusions of the Sentencing Project: