The Faculty Lounge

Miranda basics & the interrogation of James Holmes

Last week’s post dove into the controversial story of the West Memphis Three, focusing on how the interrogation of Jesse Misskelley offers a strong tool in the criminal procedure classroom for teaching the Fourteenth Amendment’s voluntariness doctrine. This week, in the final post of our series, we return to July 20, 2012, to the interrogation of James Holmes—just hours after he opened fire on a movie theater audience in Aurora, Colorado.

The West Memphis Three & Fourteenth Amendment Voluntariness

Last week’s post told the story of two New York rappers whose separate traffic stops demonstrate how officers rely on the automobile exception to the Fourth Amendment’s search warrant requirement. Today we shift gears—and Amendments—to enter the interrogation room in order to discuss how the internationally-known story of the West Memphis Three makes for an incredibly powerful tool for teaching students the Fourteenth Amendment’s voluntariness doctrine.

TF Mafia & the Automobile Exception

Last week’s post considered how just a slice of the investigation into Steven Avery—widely known from the true-crime documentary series, Making a Murderer—makes a compelling tool for teaching students the basics of search warrants. This week, we shift gears to explore the tale of two New York rappers whose stories both setup and explain how the automobile exception works in modern practice.

Steven Avery & Search Warrants

Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.

In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”

Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.

Aaron Hernandez & the Fourth Amendment’s Plain View Doctrine

Last week’s post discussed how the federal government’s investigation into Alex Levin provides a compelling illustration of the Fourth Amendment’s exclusionary rule. This week’s story begins in 2010 when the New England Patriots acquired Rob Gronkowski and Aaron Hernandez in the NFL Draft. Together, Hernandez and Gronkowski became the first pair of tight-ends in NFL history to each catch five or more touchdown passes, while on the same team, in consecutive seasons. By 2011, the duo was setting records for yardage, receptions, and touchdowns by tight-ends, combining for 169 receptions, 2,237 yards, and 24 touchdowns in that season alone. In recognition of their success, the Patriots offered the dynamic duo the largest contract extensions in NFL history—locking Hernandez and Gronkowski into five-year contracts collectively worth more than $90 million.

But Hernandez’s on-the-field success masked a darker persona away from football. In 2013, just two years after signing his exorbitant contract extension, Hernandez was prosecuted for the murder of Odin Lloyd. By 2017, Hernandez was dead. This post peers into a small facet of the state’s initial investigation into the murder of Odin Lloyd; specifically, the search of Hernandez’s home shortly before his arrest. Although law enforcement had a warrant to search the house, officers seized items not listed in the warrant during its execution. Enter the plain view doctrine.

Alex Levin & the Fourth Amendment’s Exclusionary Rule

Last week’s post discussed how bringing the investigation of John Wayne Gacy into the investigative criminal procedure classroom benefits teaching the material on probable cause. We shift gears this week to discuss how the federal government’s investigation into Alex Levin makes for a fantastic discussion (and illustration) of the Fourth Amendment’s exclusionary rule. Compared to the defendants featured in prior posts, Alex Levin is no Adnan Syed or OJ Simpson in terms of pop culture fame, but that’s largely because the government’s methods to investigate Levin stole the show.

In Operation Pacifier, the government embodied the phrase “it takes a thief to catch a thief” by operating a child pornography server as part of a wide-ranging child pornography investigation that caught hundreds of users—including, Alex Levin. Investigative methods aside, Levin’s case grew in prominence because his victory at the motion to suppress stage gave other defendants hope—if just for a while.

But we’re getting ahead of ourselves.

John Wayne Gacy & Probable Cause

In last week’s post, we explored how the 1994 investigation into OJ Simpson offered an excellent real-world example of how the exigent circumstances doctrine worked in the first moments of a high-profile homicide investigation.

This week, in my fourth post of this series, we explore how the issuance of two search warrants for the home of John Wayne Gacy broke open the investigation into one of our country’s most horrific and notorious serial killers. Specifically, the second of those two warrants led to the discovery of twenty-seven teenage corpses in the crawl space under Gacy’s house and two more under his garage and driveway. As you will read in this post, however, the probable cause supporting those warrants was, at best, questionable. But no appellate court in the country would, on this evidence, be interested in overturning Gacy’s convictions—despite the strong merits of what became the core of his appellate clams. Collectively, the investigation of Gacy’s home provides an extraordinary opportunity for students to learn and apply the probable standard through a real-world investigation.

O.J. Simpson & Exigent Circumstances

In last week’s post,  we explored how the case of Adnan Syed serves as a powerful vehicle to teach Strickland v. Washington in the investigative criminal procedure classroom.  This week, in my third post of this series, we explore how investigative decisions made on June 13, 1994—the night of Nicole Brown Simpson and Ron Goldman’s murders—offer students an unparalleled opportunity to apply the Fourth Amendment’s exigent circumstances doctrine.

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.

Preparing for Class

Joanna Grisinger has been blogging this month at Legal History Blog on the subject of teaching legal history. Her helpful advice is broadly applicable to all subject areas. Here is an excerpt:

“As soon as a syllabus is finalized and handed out, I save a copy as ‘future syllabus 3XX’ and add notes to it (moving or removing certain cases that just don’t work with a particular day’s material, noting at the top that I need to spend more time on A, B, or C, etc.) I know I’m not going to remember the details of why something didn’t work a year, or years, later, but it’s easy to go back to my office and simply move an assigned reading from one day to another. It’s also a file where I can paste citations, links, and stray thoughts (like ‘do a better job explaining negligence’ or ‘read this article before teaching Lochner again’) to deal with later.

Further, when I run across something online that I think might be interesting to use in one of my classes someday (an image, a newspaper article, a Legal History Blog reference to a new book or journal article, a digital history project, someone else’s syllabus or reading list, a tweet with a great piece of teaching advice), I immediately save it with Google Keep (which lives in my browser and requires a single click; Evernote also works for this.) Evernote and Google Keep (and probably a dozen more similar programs) store all kinds of materials and allow you to tag your materials as you like. I’ve created tags for each of the different classes I teach or might teach (as well as ones for various research projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll tag a link as soon as I save it, with whatever fits (the same article might be of use in Legal History since 1850, Gender and the Law, and Constitutional Law). Some of these classes I might not be teaching again for a few years, but when I’m starting to think about ordering materials and revising the syllabus for that class, I have a giant head start. It’s also a great way to keep track of the teaching tips and interesting assignments people tweet about that can be almost impossible to find weeks or months later.”

I take a very similar approach. At the end of each class period, there are often things I want to tweak about how I will cover the same material the next time I teach the course. But I find that if I don’t make a note to myself immediately after class, I can never remember what it was I wanted to change about that particular class by the time the next year rolls around.

I also find blogs to be enormously helpful for staying on top of new developments in the subjects I teach. For example, Rick Hasen’s Election Law Blog is essential reading for anyone who teaches Election Law. It provides a daily summary of all election law-related developments, including the latest court cases, law review articles, FEC rulings, newspaper stories, op-eds, and blog posts. There is not a day that goes by that I don’t read Election Law Blog. And I have found both the Civil Procedure & Federal Courts Blog and EvidenceProf Blog to be great sources of information as well. I don’t think I would be able to keep my courses fully up-to-date without those blogs. 

Part of the fun of being a law school professor is the fact that the subjects we teach constantly evolve. Even legal history courses must change over time as new scholarship deepens and broadens our understanding of the past. The law’s dynamic nature makes teaching it a new and rewarding challenge every semester.  

For more of Professor Grisinger’s excellent teaching advice, here are links to her posts on developing a legal history survey course, moving from semesters to quarters, choosing reading for legal history courses, and preparing for class.

"No Scrubs" - Federal Income Tax Edition

Two creative students in my Federal Income Tax class made this video, a parody of the TLC song "No Scrubs."  Major kudos to Pace Law School students Alexis Bueno and Monica Lindsay. Lyrics -- fully appreciated by the tax nerds among us -- appear after the fold.

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.   

Gaddis on Teaching and Writing

In a recent interview on CSPAN, the distinguished historian John Lewis Gaddis discussed his new book, On Grand Strategy. The book is based on Studies in Grand Strategy, a year-long course at Yale University that Professor Gaddis developed with his colleagues Paul Kennedy and Charles Hill. As the fall and spring syllabi demonstrate, it’s an extremely innovative course, with a great reading list and eclectic guest instructors including Paul Solman of the PBS Newshour and David Brooks of the New York Times. 

During the interview (which was hosted by CSPAN legend Brian Lamb), Gaddis discussed the course curriculum and structure as well as the ideas that inform the course as a whole. The interview is an hour long, but Gaddis is so learned and interesting, the hour flies by.

Midway through the interview, just after Gaddis answered a question about Winston Churchill’s reaction to the Japanese attack on Pearl Harbor, Lamb asked out of the blue a quite profound question: “How do you learn?”

Gaddis at first seemed surprised by the question, unsure who Lamb meant by “you.” But once he grasped what Lamb was asking, he gave a great answer. Here is what Gaddis said:

 “I like to think it is both by reading and teaching and then reading more and teaching more . . . because I don’t think you really know what you’ve read well until you try to teach it to a group of young people . . . [A]s you teach to a group of young people, you realize there are things you still don’t know enough about how to teach credibly, to teach fully, and so on. That drives you back to additional reading.”

That seems exactly right to me. It certainly has been my experience.

Professor Gaddis then went on to explain how the act of writing is essential to his own learning process.

“[T]he act of writing something down like this book is a working out of ideas in my own [mind] which is another approach to thinking. I really didn’t know what I thought about some of these issues that are discussed in this book until I wrote the book and now I can go back and see what I think. And so I think it’s a creative interconnection of all three of these things – reading teaching and writing ultimately.”

I could not agree more.

The whole interview is quite interesting, and it covers everything from Steven Spielberg’s film Lincoln to Otto von Bismarck’s use of shock and awe to Isaiah Berlin’s essay on the Hedgehog and the Fox. You can find it here at the invaluable CSPAN website. 

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.

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. 

For Men in the Legal Academy Who Want to Help Fight Sexism

Men in the legal academy, if you want to help fight sexism...

...do cite good scholarship by women. Empirically survey your own footnotes before sending in that manuscript....don't accept invites to speak on panels without racial and gender balance. Ask the question before accepting....do call out other men who speak over women in faculty meetings.

...do ask each law review that offers to publish your article about the racial and gender balance of the authors the journal has published in the last five years.

...do advocate for key committee leadership by women of all colors, men of all colors and other minority groups. Faculty hiring might look a wee bit different.

...do look at racial and gender salary disparities on your own faculty, if the information is publicly available. Ask questions. In. Front. Of. Everyone.

...don't close your office door fully when meeting with any students, especially women.  In confidential situations, draw the door partially closed and speak quietly.

...don't date students.  If you respect women, men, and yourself, you can wait until after graduation.

...don't call on a female student to give the "woman's perspective;" don't call on a student of color to give the "black/brown/Asian/other" perspective.  No one speaks for an entire group. No one student should carry the burden of educating the rest of the class. You're the teacher.

...don't wait for a student to raise issues of gender, race, class, sexuality.  Lead by example and signal that these issues can be important.

...when teaching Crim Law, do remember that there are rape survivors in your classroom. They are not snowflakes; they are strong; but be considerate.

...don't comment on any student's appearance. If the student needs some friendly advice about what is or is not appropriate clothing for class or interviews, there's a Dean of Students for a reason.

...do instruct moot court judges that they are not to comment on students' appearances. If there are concerns that could hurt the student's career, rely again on the Dean of Students, not the moot court judges, to convey the info.

...don't call a mixed-gender group of staff or students "guys" (e.g., don't say, "Have the guys in the IT department check your computer," when there are women who work in the IT department, too.)

...do object to the use of the word "guys" to refer to a mixed-gender group of students, colleagues, staff (e.g., "Those guys did a great job"). Your vocal objection to the use of "guys" in a case like this would be a rare instance in which "mansplaining" is welcome, especially to other men. Don't make it women's work to be the ones who remind everyone else of the importance of gender-neutral language. Your school may even have a policy on it.

 

(cross-post from FeministLawProfs.com, here)