Category Archives: criminal procedure

Elementary: “Child Predator”

I’m back after a brief hiatus! A whole bunch of reader questions have accumulated in the mailbag, and I’m going to try to work through the backlog. Today’s comes from Bob, a British reader who asked about the American show Elementary, specifically the first season episode “Child Predator” (spoiler alert!).  If you haven’t seen Elementary, I recommend it.  I actually prefer it to Sherlock.

Anyway, on to Bob’s questions (again, spoilers):

[In the episode,] a multiple child-killer initially tricked the police into believing he was an unwilling accomplice of the “real” killer. Believing this to be the truth the DA offered immunity from prosecution in return for his help in catching the “real” killer. Holmes subsequently discovered that the roles were really the other way round – he was the real killer and the man he claimed to be the accomplice of was, in fact, the unwilling accomplice. The deal is specifically immunity from any crimes committed in concert with the other man.
The deal is implied to still hold and he openly admits his crimes to Holmes, apparently certain that he is safe from prosecution.
One of the crimes is later discovered to be a solo endeavor as the other man was in hospital when it was committed.  [At the] end of the episode the police are about to arrest him for that one crime.

I’m British and pretty much everything I know about American law comes from your blog or the sources that inspired it, so I have three questions.

1. Would the DA really offer such an all-encompassing deal.
2. When it’s discovered that he really is the prime instigator would the deal still hold.
3. Would the “solo” murder be covered by the deal  or not.

I. Immunity in Exchange for Cooperation

As I told Bob when he sent in the question (way back at the end of 2012, embarrassingly enough), I don’t have enough criminal law experience to say whether the deal was realistic.  My gut says yes.  In theory the “accomplice” had a good defense (duress, since he was originally kidnapped by the actual accomplice), he was a minor for most of the crimes, and the police and prosecution needed his help to put away the person they thought was the actual mastermind.  Granting immunity in order to allow one member of a conspiracy to roll over on another is a common tactic, and I could see it being used here.

II. Just How Strong are Immunity Deals Anyway?

It has been recognized for some time that plea bargains can be enforced against the government. Santobello v. New York, 404 U.S. 257 (1971).  But what about deals in which the defendant is offering something else, such as agreeing to testify as a witness against other participants in the crime?  It turns out that such agreements are not always enforceable.

The Second Circuit (which includes New York) has held that “the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation” and that such agreements are subject to ordinary contract law principles.  U.S. v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002).  These principles include construing any such deal strictly against the government (because, after all, the government wrote the deal). Id. at 90.

However, all the strict-construing in the world won’t save a defendant who fails to uphold their end of the bargain.  A common feature of immunity deals is that the defendant-witness has to agree to testify truthfully.  As the Aleman case held, “truthful” can include a sincere but incorrect belief, but it doesn’t include lying. Id.  On the other hand, while the government has the discretion to decide if a defendant has adequately cooperated, “the government’s discretion does not grant it power to turn its back on its promises to the defendant under the cooperation agreement or to ignore a defendant’s cooperation efforts simply because the defendant is supplying information that the government does not want to hear.”  Id. at 91.

Aleman was a federal case, however, and the case in Elementary was a state case.  So what do the New York courts say about this?  It turns out that there’s a fairly similar New York case, People v. Curdgel, in which the defendant was given a reduced sentence in exchange for testifying against his accomplices.  83 N.Y.2d 862 (1994).  After he testified, however, the defendant went on television and said that he had lied to the grand jury.  The prosecution refused to honor the plea agreement, and the highest court in New York upheld that refusal.  The court held that the “defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People…We cannot say that essential fairness compels enforcement of the original agreement.”  Id. at 864.

So the answer will almost certainly depend on how exactly the immunity deal was written.  If it included a requirement that the defendant testify truthfully, or if the deal itself included a statement of facts that the defendant swore to, then the prosecution would not be bound by the deal because the defendant breached it by lying.  But if the deal was sloppily written and simply gave the defendant immunity in exchange for agreeing to testify (regardless of the content of his testimony), then the government may not have much of a leg to stand on.

III. The Scope of Immunity

Whether or not the “solo” murder would be covered by the deal depends again on how exactly it was written.  The language we get from the episode is “in concert with.”  We know that the real accomplice was in the hospital recovering from a major surgery at the time of the solo crime, so he certainly wasn’t actively involved in the commission of the crime.  However, the defendant likely used the accomplice’s vehicle and other, indirect, forms of assistance.  It could be argued that the deal should be strictly construed against the government to include not just conspiracy but also accessory or accomplice conduct.

That all assumes that the deal holds at all, however.  As discussed above, it’s very likely that the deal would fall apart completely once it came out that the defendant was lying about his role in the murders.

 

More Guest Blogging

The guest blogging at The Volokh Conspiracy continues with The Adventure of the Fruit of the Poisonous Tree, which is sort of like Is Batman a State Actor? except for Sherlock Holmes in Elementary.

The Courtroom Antics of Golden Age Green Lantern

Today’s post comes from an email from an anonymous reader, who pointed us to this fantastic bit of Golden Age Green Lantern weirdness.  The blogger over at What Were They Thinking?! wonders if the Green Lantern’s antics wouldn’t be grounds for a mistrial, and our reader had a few questions of their own:

1: Would the witness’s confession be admissible in a court of law, considering it was compelled under threat? Basically, would the events of the last panel have happened the same in a court in today’s time?

2: Could the defendant’s threat to the witness be used against him in this trial (assuming it wasn’t declared a mistrial) or in a subsequent trial?

(Just in case the link goes dead, I’ll summarize the events of the comic.  The Green Lantern, as his secret identity Alan Scott, is observing the trial of the alleged leader of a slavery ring.  The prosecution’s main witness, one of the henchmen, proves uncooperative on the stand, so Scott changes into his Lantern outfit and returns to the courtroom, where he threatens to kill the henchman if he doesn’t tell the truth.  The henchman then points the finger at the defendant, who gives the henchman a death threat of his own.  This apparently leads to a guilty verdict for the defendant and the day is saved.)

I’m not going to try to figure out exactly what the relevant law was like in the 1940s.  And like many DC heroes, Alan Scott didn’t operate in a well-defined location anyway (originally “Capitol City“).  Instead I’ll approach this from the perspective of modern law and use our favorite generic big city stand-in, New York.

I. Mistrials

In New York, a mistrial can be declared at the discretion of the trial judge, either at the judge’s own direction or on a motion by one of the parties.  However, the judge must declare a mistrial on a motion by the defendant if at any time during the trial there occurs “conduct inside … the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.” N.Y. Crim. Proc. Law § 280.10(1).  A disturbance in the courtroom (such as an outburst from a member of the public) will not ordinarily result in a mistrial unless it leads to such prejudice.

So what would be prejudicial against the defendant?  Well, having a witness give inadmissible, coerced testimony might be one such thing, especially since the prosecution’s case evidently hinged on that testimony.  It would be pretty hard to ask the jury to ignore what the witness said, especially after the defendant’s own threatening response.  What’s worse, the judge didn’t even try to exclude the improper testimony or have the Green Lantern removed from the court room. So a mistrial would seem to be appropriate, either from the trial judge or on appeal.

It’s true that mistrials are rarely granted in the real world, but this is a really egregious case, far beyond the typical case of a witness making a minor remark, such as accidentally referring to a defendant’s parole status.

II. Admissibility

As indicated above, I don’t think that the witness’s statement would be admissible.  There does not seem to be a specific rule in New York excluding coerced testimony or testimony given under duress, but New York does have its own common law version of FRE 403. People v Scarola, 71 N.Y.2d 769 (1988).  That is, evidence that is more prejudicial than it is relevant should be excluded.  I don’t know if there are any analogous cases to this one, but it seems pretty clear cut.

The admissibility of the defendant’s response, however, is another matter.  Strictly speaking, such a statement would ordinarily be admissible.  It wouldn’t run afoul of the hearsay rules (i.e. most of the people in the courtroom could testify as to what the defendant said in a future trial).  But the trouble is that explaining why the defendant said that would require explaining the whole Green Lantern outburst, which is really just a backdoor way of introducing the inadmissible witness testimony.  I suspect the defendant’s response would stay out as well.

III. Conclusion

The whole thing is shenanigans piled on top of shenanigans.  How on Earth the Green Lantern thought death threats in open court were a good idea, I don’t know.  Given its position on the last page of the comic, I suspect the writer found themselves painted into a corner and came up with a solution that is remarkable only for its inelegance.  But it’s a good example of how a superhero could actually end up preventing real justice from being done.

Iron Man 3 Questions

We’re going to start our coverage of Iron Man 3 with some questions we received almost two weeks ago from Heiki, who saw the movie at a local premiere in Europe.  We had to wait to see it this weekend, but it was well worth it.  If you haven’t seen it yet, you should.  It’s a great movie.  There are some fairly serious spoilers below, though.

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Silence & Co.: Money Is Power

Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading

Arrow: “Innocent Man”

Innocent Man” is the fourth episode of Arrow, and once again, Laurel Lance’s role as an attorney takes center stage. The plot this time centers on Peter Declan, a man convicted of the murder of his wife and daughter and scheduled for imminent execution. Oliver deduces that Declan is connected to one of the people on his list, so he does a little digging and figures out that Declan is probably innocent. So he goes to Laurel, hoping that she can intervene in Declan’s case. So we’re talking about post-conviction relief. Continue reading

Little Brother, Part 1

Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties.  Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism.  The sequel to Little BrotherHomeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

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Green Lantern # 76, cont’d

Returning to Green Lantern/Green Arrow # 76, which we started looking at last month, we find two more issues to discuss. First, whether the tape recorder Green Arrow set up would have been admissible if it had worked, and relatedly, whether Green Arrow can testify to the contents of the tape even if it’s broken. Second, whether the arrest of the villain at the end of the story is legitimate. Continue reading

Arrow: “Lone Gunmen”

This episode of Arrow, entitled “Lone Gunmen”, aired back in October, but there’s some really good stuff in it. The main legal issue has to do with Oliver Queen’s little sister, Thea, getting picked up by the police for breaking into a store, while drunk, and trying on some outfits with her friends. Continue reading

Arrow: “Honor Thy Father”

This is the second episode of Arrow, and it contains two excellent legal issues for your consideration. First, the legal procedure of coming back from the dead. Second, whether the “evidence” Queen provides against Martin Sohmers would be admissible. Continue reading