On Probation: The Dangers of Assuming a “General Rule”

In criminal law, we typically start with a general constitutional rule that was designed to protect individuals from the coercive power of the government.  But then, judges decide that the rule is giving too much protection at the government’s expense, and they spend years chipping away at it in court decisions.  They create multiple bizarre, hyper-technical exceptions to the rule, based on factual distinctions without a meaningful difference, until the original rule becomes unrecognizable.  The best and most extreme example of this phenomenon—an example that has unfolded over several decades—is what the courts have done to our Fifth Amendment rights, including our right to remain silent and our right to an attorney before and during police interrogation.  But it doesn’t end with police interrogations.  Thanks to a new Wisconsin case, it appears that the Fifth Amendment is on the ropes in the probationary context as well.

Prosecutors might not control the world after all

Sometimes, judges will impose rules and deadlines on prosecutors, especially when they get the sense that the prosecutor is pursuing a frivolous case.  For example, “You hid this evidence from the defense lawyer until now, the morning of trial?  I’m excluding it from the trial because you violated the discovery rules and my scheduling order, and the defendant wouldn’t have the necessary time to prepare his case.”  Or, “This case has been pending for three years, and you want to completely change the charges the morning of trial?  No dice; you’re going to trial on the charges that you've filed.”  Granted, this doesn’t happen often, but even when it does, judges quickly learn that it’s the prosecutor, and not the judge, that controls the courtroom.

It’s really more of a suggestion than a rule

Because I practice criminal defense in state courts, I really don’t keep up with cases on the federal rules of criminal procedure.  But a recent post on Michael O’Hear’s Life Sentences Blog caught my eye.  O’Hear writes about a federal rule that prohibits judges from getting involved in the plea bargaining process.  (Wisconsin state courts have a similar rule, so I’m quite familiar with it.  Further, there is at least one good reason behind the rule: sometimes judges don’t understand the law, so it’s best if they just stay out of the way.)  But what happens in federal court when a judge breaks this rule?  What if he sticks his nose into the parties’ plea negotiations, bullies the defendant to take a deal, and the defendant later regrets it and wants to withdraw the plea?  Is he entitled to take back his plea and start fresh?  Not quite.  It turns out that the federal “rule” against judges pokin’ around in the parties’ business is really more of a “suggestion” than a rule.

The death of books?

I love movies about writing.  Whether it’s a movie about short fiction and book clubs (Kicking and Screaming), book-length poems and multi-volume “confessions” (Henry Fool), investigative reporting pieces (Safety Not Guaranteed), the great American novel (Sideways), academic journal articles (Tenure), or even magazine restaurant reviews (The Trip), these writing-themed movies are often smart, witty, engaging, and far more interesting than any summer blockbuster.  But in the newest movie (Wonder Boys) to make my DVD collection, the old, nearly used-up novelist character laments: “Books.  They don’t mean anything.  Not to anybody.  Not anymore.”

Dexter, DNA, and Maryland v. King

Dexter is a blood analyst for the Miami Metro Police Department by day, and, unbeknownst to nearly everyone, is also a serial killer by night.  With that type of work, it’s no wonder that television’s most beloved murderer, and his workaday colleagues at Miami Metro, are buried in legal issues.  Take, for example, the time that both Miami Metro and Dexter were tracking the Trinity Killer—the mysterious killer that always took three victims in each of his murderous cycles.  Miami Metro had a great idea: employ the “DNA sweep.”  The cops simply set up “DNA roadblocks” on the highway, stopped all of the cars, and forced everyone to submit their DNA to be tested against the DNA left behind at one of Trinity’s crime scenes.  (In the end, that’s not what caught Trinity—Dexter got to him first and delivered his own brand of serial-killing justice.)  I remember laughing aloud when seeing this Miami Metro police practice.  Even in today’s over-the-top, short-sighted, hysterically tough-on-crime society, these DNA sweeps would never be allowed—or so I thought.  And then our Supreme Court decided Maryland v. King.