The Faculty Lounge

Teaching Strickland v. Washington through the case of Adnan Syed

In my post last week titled “Bringing famous defendants into the Criminal Procedure classroom,” I suggested that case filings from (in)famous defendants present the legal academy with a special opportunity to bring the classroom alive—particularly and especially the investigative criminal procedure classroom—in a manner superior to more traditional teaching methods.  At the end, I promised a series of follow-up topic-specific posts that would include my thoughts about teaching the investigative criminal procedure course through the lens of famous defendants. Today we dive into how the performance of Adnan Syed’s attorney, Cristina Gutierrez, at his murder trial makes for a compelling way to teach Strickland v. Washington.

Bringing famous defendants into the Criminal Procedure classroom

Last year, I drafted a series of posts for this blog wherein I suggested the many benefits of bringing Brendan Dassey’s prosecution into the law school curriculum (the intro post from that series is here). In that series, I mentioned that I twice taught a course called (Un)Making a Murderer and assembled course materials to accompany the class. Those materials relied, in part, on filings from Dassey’s case. Doing so intimately acquainted me with his case and its many associated legal issues.

To bring the Dassey prosecution to life for students, I expose them to numerous filings from the case alongside several law enforcement investigatory materials (including, for example, search warrants and interrogation videos). Teaching that class taught me this:  in-class conversations that focus on actual case filings has significant advantages compared with the more typical classroom conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.

Jeffrey Epstein's Will Filed for Probate In Virgin Islands

And the New York Post has a copy here. Turns out Mr. Epstein executed a will in jail two days before he committed suicide. 

The Supreme Court’s Chance to Eliminate Anti-Gay Juror Bias

The United States Supreme Court is expected to conference on Charles Rhines’s petition for certiorari on April 12, 2019. Rhines is a gay man on death row in South Dakota. New evidence shows that jurors who sentenced him to death knew that Rhines was a homosexual and reasoned that he should not be permitted to spend his life with men while in prison.

Rhines’s petition argues that he should be allowed to present this new evidence to show that the jurors’ anti-gay bias deprived him of his rights to a fair trial and due process under the Sixth and Fourteenth Amendments. As my colleague, Jordan Blair Woods, has observed, sufficient research exists to demonstrate “how challenges linked to sexuality and gender identity in criminal courts can compromise legitimacy and fairness in the criminal justice system.” The Rhines petition presents the Supreme Court with an important opportunity to address that concern head-on.

Did Prohibition Give Rise to the New Deal?

Conventional wisdom holds that the Great Depression sank Herbert Hoover’s presidency. After all, how could it not have? When American voters went to the polls in November 1932, the unemployment rate exceeded 25% and the global economy languished amid the most severe downturn in modern history.

In light of the Great Depression, it seems obvious that when voters elected Franklin Roosevelt—a charismatic candidate who had promised a “New Deal” for the American people—they must have done so for economic reasons. Indeed, a central political tenet (then and now) is that voters always vote their pocketbooks. As the Democratic strategist James Carville famously put it in 1992, “it’s the economy, stupid.”

Surely the same was true in 1932? 

Active Measures

My movie recommendation for the weekend is “Active Measures,” a new documentary by Jack Bryan. The title refers to the Russian government’s use of covert warfare against its adversaries, especially in the United States but also in Britain, Estonia, Georgia, and Ukraine.

The film’s focus is on the three-decade-long financial relationship between Donald Trump and Russia, which Bryan argues is the key to understanding the connection between Moscow and the Trump campaign during the 2016 election. The documentary is riveting, fast-paced, and includes interviews with John McCain, Hillary Clinton, Evan McMullin, Michael McFaul, and many others. It is available on Amazon Prime and the movie trailer for Active Measures is available here.

On a related note, the Justice Department on Wednesday filed yet another indictment of Russian military intelligence officers. Here is a copy of the latest indictment, which charges 7 GRU officers with conducting “persistent and sophisticated cyber criminal intrusions” that targeted American, Canadian, and European entities for hacking and disinformation campaigns. According to the Justice Department, the Russian government attacked a range of western institutions, including the U.S. Anti-Doping Agency and the Organisation for the Prohibition of Chemical Weapons. Interestingly, the Justice Department filed the indictment in the Western District of Pennsylvania, which reflects the expansion of the Russia investigation beyond the Special Counsel’s office to include a number of U.S. Attorneys’ offices. 

Here is FBI Director Christopher Wray’s statement regarding the most recent Justice Department indictment of Russian government officials:

“The actions of these seven hackers, all working as officials for the Russian government, were criminal, retaliatory, and damaging to innocent victims and the United States’ economy, as well as to world organizations. Their actions extended beyond borders, but so did the FBI’s investigation. We worked closely with our international partners to identify the actors and disrupt their criminal campaign - and today, we are sending this message: The FBI will not permit any government, group, or individual to threaten our people, our country, or our partners. We will work tirelessly to find them, stop them, and bring them to justice.”

And here is a link to the Justice Department page that includes all of the indictments filed thus far by Special Counsel Robert Mueller’s office in its investigation of Russian interference in the 2016 presidential election. 

Chief Justice Roberts and the post-Kennedy SCOTUS

Mark Joseph Stern has an interesting piece on Slate about a death penalty case that hints at the new ecosystem of the post-Kennedy Supreme Court. The case is Madison v. Alabama and the justices heard oral argument yesterday. The issue before the Court is whether the Eighth Amendment permits the state of Alabama to execute Vernon Madison, a 68-year-old, legally-blind inmate whose vascular dementia prevents him from remembering his 1985 murder of a Mobile police officer.

The aftermath of Len Kachinsky’s defense representation

Across several prior posts, I have outlined how the 2007 conviction of Brendan Dassey for the murder of Teresa Halbach—part of the largest criminal investigation in Wisconsin’s history—can enhance the investigative criminal procedure classroom for law students and law professors alike. I have argued there is much for law students (and even lawyers) to learn from law enforcement’s numerous interrogations of Dassey alongside the pretrial defense representation he received. On that latter topic, I have focused on Len Kachinsky’s representation of Dassey during a five month period from March through August of 2006.

During that period, Kachinsky hired a defense investigator who would end up also interrogating Dassey in an effort to elicit a further confession from him in order to aid law enforcement. Kachinksy would also waive Dassey’s (extremely viable) Miranda arguments during a hearing on Kachinksy’s motion to suppress. And, to top the representation off, Kachinsky invited law enforcement to interrogate Dassey without representation prior to trial.

That remarkable behavior is constitutional pursuant to the Supreme Court’s 1984 decision in Strickland v. Washington, which sets an extremely low bar for attorney performance under the Sixth Amendment. Strickland poses two distinct problems: (1) the low standard itself, and (2) lower courts’ interpretation of that standard to further lower the bar sets. In my last post, I explored that first problem—the standard—and today I’ll explore how the lower courts interpreted Strickland to reject his claim that Kachinksy provided unconstitutional representation. Both problems point in the same direction, which is for law schools to demand more from students. At the end of this post, I’ll offer one concrete suggestion for how schools might do exactly that.

Len Kachinsky & the fallible Strickland standard

In a series of prior posts, I explored the various interrogations of Brendan Dassey in 2005 and 2006. Then sixteen, Dassey was interrogated numerous times across a several-month span about his involvement in the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s case. His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court.

Dassey’s confession aside, I began more recently to explore the concerning pretrial representation Dassey received from his appointed lawyer, Len Kachinksy. During a five-month span representing Dassey from March to August of 2006, Kachinsky waived critical issues, spoke to the media more than he spoke to his client, and hired an investigator to interrogate his own client—among other blunders. Kachinsky’s performance is enough to elicit any number of emotions, ranging from general disappointment to downright anger. Indeed, Kachinsky himself received that full range of responses to his behavior via nasty letters, angry phone calls, and even death threats.

The public outcry condemning Kachinsky’s representation of Dassey hides a powerful and unfortunate reality: Kachinsky’s representation was constitutionally adequate pursuant to Strickland v. Washington, the Sixth Amendment’s measuring stick for attorney performance. As teachers, we often assume that satisfying a constitutional standard is equivalent to competence. But that’s simply not true in the “effective assistance” arena. The constitutional standard is well below an acceptable minimum level of attorney competence.   

Short of calls to revise or overrule Strickland, which for decades have gone unanswered, the question shifts to whether there is another way to address Strickland’s low bar. The answer is yes and law schools are particularly well situated to raise expectations for the defense bar. At present, Strickland is not sufficiently representative of what the profession—in practice—demands of professional well-regarded criminal defense attorneys.  Law schools must develop curriculum that is not tightly calibrated to Stickland but, rather, reflects true standards of acceptable competence for defense attorneys.   

Trump, Roosevelt, and Secret Campaign Funds

In the 1904 presidential election, a number of major American corporations secretly contributed $1.5 million to Theodore Roosevelt’s reelection campaign. George Cortelyou, the GOP chairman and Roosevelt’s de facto campaign manager, aggressively solicited the corporate donations even as Roosevelt himself publicly denied that his campaign relied on corporate support. When the true story of Roosevelt’s campaign tactics began to emerge after the election, the president sanctimoniously reversed course, calling for a ban on corporate donations to federal election campaigns. In 1907 a reluctant Congress enacted the ban and it has remained in effect ever since.

On Tuesday we learned that Donald Trump’s 2016 presidential campaign likely violated the century-old prohibition on corporate campaign contributions. The facts as currently known, however, suggest the campaign’s real motivation had to do with preserving secrecy, not amassing corporate cash.

What Does a Reasonable Doubt Mean?

The Washington Post is reporting tonight that the jury in Paul Manafort’s trial has asked the judge to define the term “reasonable doubt.” 

As the jurors’ question suggests, the reasonable doubt standard is not self-explanatory. Even judges struggle to explain it. For a concept that is so fundamental to our legal system, it is striking that there is no single definition of precisely what “reasonable doubt” means. The reason is because the U.S. Supreme Court has declined to define it. In the 1994 case of Victor v. Nebraska,  the Court explained that:

“The government must prove beyond a reasonable doubt every element of a charged offense. Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy explication. . . . The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.”

In the absence of clear guidance from the Supreme Court, legislators and judges have taken it upon themselves to define the meaning of reasonable doubt. Their efforts have included some serious missteps.

Was Michael Cohen’s Secret Taping of his Then-Client Donald Trump Improper?

Once again current events provide us opportunities for ethical reflection.  Much in the news these days is Michael Cohen’s tape-recording of phone calls with his then-client, then-candidate Donald Trump, with one such tape apparently about the payments that Trump might make to “our friend” David Pecker (yes, Virginia, that really is his name) and the National Enquirer to acquire Playboy model Karen McDougal’s rights to her story of her earlier affair with Trump.  There is spirited disputation whether the recording documents criminal behavior on Trump’s part, a question I leave mostly to others.  Today I’ll focus on the tape and the lawyer who made it, and explore the eternally recurring (and often wildly informative) question “Can he do that?”

The President has tweeted (argh, so little good ever follows those words) that Cohen’s taping is both “totally unheard of and perhaps illegal.”  Anything to that?  I’ll discuss it in all the excruciating detail you deserve after the jump.

The other explanation for Brendan Dassey’s conviction

In a series of seven prior posts, I explored the primary reason—aggressive use (and misuse) of interrogation methods—for the 2007 murder conviction of Wisconsin teen Brendan Dassey. Dassey, now (in)famous for his role in the Netflix documentary, Making a Murderer, was interrogated several times during law enforcement’s investigation into the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s ca

His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court. Given the absence of physical evidence tying Dassey to the killing, many scholars, myself included, think Dassey’s confession was false.

That Dassey’s confession was the primary reason for his conviction is uncontested. But there is one other major reason for Dassey’s conviction: bad lawyering. In this post, we consider the representation provided by Len Kachinsky during five months of representing Dassey—from March 2006 until his removal from the case later that August. Speaking from my own experience, Kachinsky’s decision-making is a powerful teaching illustration for what not to do as a criminal defense lawyer. I have found that exploring Kachinsky’s mistakes with students is a very productive way to help them see how criminal procedure is actually practiced alongside how criminal procedure protections depend almost entirely on strategic thinking by lawyers.

Sources, Methods, and Mueller’s Investigation

Special Counsel Robert Mueller filed charges against 12 Russian military intelligence officers on Friday for hacking the Democratic Party’s computer networks. The indictment is available here on the Justice Department’s website. 

In compelling detail, the indictment reveals how the Russian government engaged in a massive campaign to steal the Democrats’ computer files and then “stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.”

The details are eye-catching, particularly the elaborate measures that the GRU—the premier Russian Military Intelligence agency—took to cover its tracks. For example, paragraph 58 alleges that the Russians “used bitcoin when purchasing servers, registering domains, and otherwise making payments in furtherance of [the election] hacking activity.” Paragraph 59 reveals additional methods the GRU adopted to escape detection:

“To further avoid creating a centralized paper trail of all of their purchases, the Conspirators purchased infrastructure using hundreds of different email accounts, in some cases using a new account for each purchase. The Conspirators used fictitious names and addresses in order to obscure their identities and their links to Russia and the Russian government.”

The GRU’s effort to conceal its role in the 2016 election failed. The indictment identifies the 12 defendants with extraordinary precision, including their names, many of their ranks, and even the location of the buildings where they worked in Moscow.

But the remarkably detailed charges raise a serious concern of their own: has the indictment itself potentially compromised the American intelligence community’s sources and methods? If so, why would Mueller take that risk? 

Reigniting the need for Dassey in the classroom

Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.

The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.

Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

Reid & Brendan Dassey’s Lost Defense

Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).

But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue.  That issue has taken prominence only because it is an issue preserved for appeal.  But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers.  Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.

One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.

RFK

New York Senator and Democratic presidential candidate Robert F. Kennedy died from gunshot wounds 50 years ago today. RFK’s assassination represented a turning point in American political history. At the time of his assassination, RFK was only 42 years old with a promising future ahead of him. Even if he had failed to win in 1968, he would have remained a formidable contender in subsequent elections. Indeed, it seems safe to say that had he lived, RFK would have been a major force in American politics well into the 1990s.

But his assassination is also historically important for another reason: it left a legacy of public distrust and cynicism that remains entrenched in our politics today. 

The Thin Blue Line

If you are looking for something to watch this weekend, the classic Errol Morris documentary The Thin Blue Line is available on Netflix and Amazon. It tells the story of Randall Dale Adams, who was put on death row in Texas after being wrongfully convicted of the 1976 murder of Dallas Police Officer Robert W. Wood.

When The Thin Blue Line premiered in 1988, Peter Applebome of the New York Times called it an “eerie cinematic evocation of a Texas frameup.” Although Morris’s film predated the internet and social media, and initially only had a limited release, it created a national outcry over the outrageous miscarriage of justice in the Adams case. Just one year after The Thin Blue Line premiered, the Texas Court of Criminal Appeals overturned Adams’s conviction and he was released from prison, having spent 12 years behind bars. 

Groundbreaking in 1988, The Thin Blue Line still exercises a deep influence on documentary filmmaking. In 2016 Morris did a fascinating interview with Slate, discussing how he made the film as well as his reaction to the 2015 documentary Making a Murderer, which bears many of the hallmarks of The Thin Blue Line. Here is the 1988 original trailer for The Thin Blue Line, courtesy of YouTube. It gives a nice taste of the film and its haunting soundtrack.

When interview becomes interrogation

In earlier posts, I argued for why both Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  Most recently, I offered a handful of conclusions about how understanding the Reid method can better inform Miranda-related arguments.  In this fourth post, I will explore the relationship between Reid and one of the interrogations left unexplored by the Making a Murderer Netflix documentary series. 

As I noted in my last post, Making a Murderer focuses in episode 3 on Dassey’s March 1, 2006, interrogation, which is at the heart of Dassey’s petition for Supreme Court review.  The documentary, however, does not explore—or even mention—several other Reid interrogations of Dassey.  Dassey’s interactions with law enforcement during those interrogations were critical contributors to his March 1 “confession.”  The most notable of these are an interrogation that occurred on Nov. 6, 2005, and three interrogations that happened on Feb. 27, 2006.  Today I’ll explore what took place on Nov. 6.