Articles Posted in Criminal Law

Former federal prosecutor Dennis Aftergut discusses Fulton County District Attorney Fani Willis’s legal strategy in her case against Donald Trump and various co-defendants for an alleged conspiracy to overturn the 2020 election. Mr. Aftergut observes that Willis seems to be focusing on securing guilty pleas from less central co-conspirators to strengthen her case against major defendants like Trump, Rudolph Giuliani, and Sidney Powell, while potentially offering lesser charges to those willing to cooperate and testify, thereby avoiding the risk of revealing too much of her case before a full trial.

Illinois Law professor Lesley M. Wexler delves into the ethical complexities of writing leniency letters in sexual assault cases, particularly when informed by the #MeToo movement. Professor Wexler argues that while society should be forgiving, as Verdict co-columnist Joe Margulies suggests, leniency letters can often perpetuate “himpathy,” where the judge might overempathize with the defendant—especially if white and otherwise privileged—at the expense of the victim, and that these letters should carefully avoid reinforcing tropes rooted in structural misogyny and American rape culture.

In this first of a series of columns, Illinois Law professor Lesley M. Wexler explores the ethical and societal complexities surrounding character letters in sex crimes trials, particularly focusing on the controversy created by Ashton Kutcher and Mila Kunis’s leniency letters for Danny Masterson. Professor Wexler delves into the historical role and changing public sentiment about character evidence, referencing military court cases and the Brock Turner trial, and questions whether it is possible to write a leniency letter that aligns with #MeToo values without undermining victims or perpetuating harmful myths.

Cornell Law professor Michael C. Dorf discusses the indictment against New Jersey Democratic Senator Robert Menendez, who is accused of accepting bribes to influence foreign relations and other matters. Professor Dorf acknowledges the legal presumption of innocence in a criminal trial setting but argues that due to the ethical responsibility Senators have towards their constituents and the country, they are not entitled to the same presumption in their role, and the weight of the allegations and evidence against Menendez should prompt his resignation or expulsion from the Senate.

Amherst professor Austin Sarat observes that the push for death penalty abolition in the United States faced a year of mixed outcomes in 2023, marked by a rise in executions but also legislative progress in some states like Washington. Professor Sarat observes that states like Alabama and South Carolina are making efforts to proceed with executions using new methods or secured drug supplies, Ohio and Tennessee have shown more cautious or progressive stances, signaling an incremental and complex journey toward abolition.

Cornell professor Joseph Margulies discusses the controversy surrounding Ashton Kutcher and Mila Kunis writing character letters in support of their friend and fellow actor Danny Masterson, who was convicted of rape. Professor Margulies argues that while Kutcher and Kunis should be allowed to plead for “social forgiveness” for Masterson, they crossed a line by encouraging the judge to doubt the jury’s verdict; the challenge lies in how society can adopt a more forgiving attitude without diminishing the severity of wrongdoings.

Former federal prosecutor Dennis Aftergut argues that in deciding whether Mark Meadows’s case should be tried in federal court, the judge should apply a “totality of the circumstances” test—which would result in the case being remanded to state court. Mr. Aftergut points out that this approach would weigh all of Meadows’s actions, rather than focusing on a single official act, thereby accommodating competing legal and social values.

Former federal prosecutor Dennis Aftergut comments on the Fulton County indictment process involving Donald Trump and 18 others, including Kenneth Chesebro, who allegedly created the “fake elector” scheme. Mr. Aftergut explains the possible strategies by the prosecutor and defense, focusing on how Chesebro’s now-severed trial could pave the way for other prosecutions in the case, and provides insights into the evidence against him, emphasizing that a conviction in his trial could offer momentum for cases against Trump and other defendants.

erst professor Austin Sarat comments on the case of Gerald Pizzuto, whom the state of Idaho has sought to execute by lethal injection five times since his 1986 conviction for first-degree murder. Professor Sarat points out that U.S. District Court Judge B. Lynn Winmill, who ruled in Pizzuto’s case, recognized the inherent psychological cruelty of capital punishment, particularly when it involves repeated rescheduling of execution dates.

Cornell professor Joseph Margulies reflects on two recent high-profile legal events: the indictment of Donald Trump for allegedly subverting democracy and the death sentencing of Robert Bowers for the deadliest antisemitic attack in U.S. history. Professor Margulies suggests that these cases, viewed by many as a triumph for the rule of law, represent societal attempts to protect integral aspects of American identity, with their punishment seen as purging threats to this identity. However, Professor Margulies argues that the law should not be weaponized to decide who belongs in society, as it usurps an authority that rightfully belongs to the people.

Amherst professor Austin Sarat comments on so-called quasi-death-penalty states, which have criminal laws authorizing capital punishment but have gone five years or more without executing anyone. Professor Sarat explains what it means that Ohio and Nebraska are joining the 15 other de facto abolition states and argues that, in the end, the fate of America’s death penalty will be decided as much in those places as in the few states which continue to carry out the bulk of this country’s executions.

Former federal prosecutor Dennis Aftergut comments on today's announcement that federal district court judge Aileen Cannon set a May 2024 trial date in Donald Trump’s trial for obstructing justice and unlawfully taking and retaining national security documents at Mar-a-Lago after he left office. Mr. Aftergut points out that Judge Cannon “split the baby” by choosing a date between the proposals of Special Counsel Jack Smith and Trump’s lawyers but argues that the decision reveals little about whether she will treat Trump more favorably than other criminal defendants.

Amherst professor Austin Sarat comments on some lessons we should learn from the cases of two people scheduled to be executed today, July 20, 2023. Professor Sarat points out that the two cases—James Barber and Jemaine Cannon—demonstrate, respectively, that we are not executing “the worst of the worst” and that the execution methods we use are unreliable at best.

Amherst professor Austin Sarat points out the hypocrisy of the Supreme Court in proclaiming the Constitution to be “colorblind” with respect to college admissions but turning a blind eye to blatant discrimination in the case of a Black man sentenced to death in Mississippi. Professor Sarat describes the facts of Clark v. Mississippi and argues that by refusing to act, the Supreme Court tacitly condones Mississippi’s blatant flaunting of the Court’s precedent.

In the spirit of American Independence Day, Amherst professor Austin Sarat suggests that we not only celebrate America’s ideals but also reflect on its failings—failings that include its continued use of capital punishment. Professor Sarat reiterates the problems with capital punishment, such as the ineffective and inhumane methods of execution, racial inequities, time on death row, and the fact that most of those we execute are victims of extensive abuse and neglect from childhood or earlier.

Amherst professor Austin Sarat comments on the recent exoneration of Barry Lee Jones from Arizona’s death row after evidence against him was revealed as “flawed.” Professor Sarat argues that shoddy defense lawyering, junk science, and myopic police work are regular features of America’s death penalty system and that dismantling the death penalty system is the only way to end the epidemic of false convictions.

Cornell professor Joseph Margulies distinguishes between the calls to prosecute officials from the George. W. Bush administration over their war crimes and the present prosecution of Donald Trump. Professor Margulies explains why he opposed prosecution of Bush but supports prosecution of Trump: Bush had the best interests of the country at heart, whereas the same cannot plausibly be said about Trump.

Amherst professor Austin Sarat comments on the recent execution of Michael Tisius by the state of Missouri, despite a request by several of the jurors who sentenced him to death in 2010 that his sentence be commuted to life without parole. Professor Sarat points out that the finality and likelihood of errors are but two reasons that any civil and just society should abolish the death penalty.

Former federal prosecutor Dennis Aftergut comments on the recent news that Judge Aileen Cannon has been assigned to the federal grand jury indictment of Donald Trump. Mr. Aftergut explains the possible outcomes if Judge Cannon does not recuse herself from the case and what Special Counsel Jack Smith might have in mind.

Amherst professor Austin Sarat points out that when death penalty abolitionists take up the cause of saving the lives of people accused of mass murder, they need also to keep reminding people that, in the many less notorious cases in which the state seeks death as a punishment, the death penalty continues to legitimize vengeance, intensify racial divisions, promise simple solutions to complex problems, and damage our political and legal institutions.