*Lock-up the semester with FedSoc’s Over-Criminalization event: “
Lock-up the semester with FedSoc’s Over-Criminalization event featuring Radley Balko and Prof. McNeal
The event will address the large influx of federal laws and what it means for American citizens. Lunch will be served in the Appellate Court room @12:30pm on Monday, November 14th.
Radley Balko is currently a senior writer for Huffington Post, where he focuses on civil liberties and the criminal justice system. His prior experience includes senior editor at Reason magazine, policy analyst for the Cato Institute covering civil liberties and the drug war, and biweekly columnist with FoxNews.com. On a personal side, Balko identifies himself as “a music buff, an amateur photographer, and an admitted ‘dog person.’” Read more about Radley Balko on his website.
Pepperdine’s Prof. McNeal is a national security specialist with expertise in national security law and policy, transnational crime, global policy studies, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba.
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On Friday November 4, 2011 The Florida International Law Review will host their Fall 2011 Symposium. The topic is What the Future Holds: Balancing Law, Liberty and National Security. I will be participating in Panel III- Looking Back to Shape the Future: How Foreign Policy will Affect Law, Liberty and National Security.
Here is the symposium teaser:
The rise of transnational terrorism and evolving threats to the national security of the United States has forced remarkable changes in United States foreign and domestic policy. The United States’ various strategies and policies for coping with these threats are celebrated by some and rejected by others. This symposium will focus on the law as well as related policy, political, and societal implications of national security policy. How do we balance liberty and individual freedoms with national security in today’s America? Where do we go from here?
The full schedule appears after the break.
On Tuesday, October 25, 2011 I will be presenting my paper Collateral Damage and Accountability at Santa Clara University School of Law. The event will take place at noon and is open to the public.
On Tuesday, October 4th I will be part of a panel at Mercer University School of Law. The panel discussion will explore the differences between President Obama and President Bush’s national security policies, specifically as they relate to counterterrorism. Some issues we will explore are:
- Commentary on how successful the current program has been in achieving its objectives
- Changes that might need to be implemented to make the terror policy more effective and/or efficient
- Specific weaknesses that make the program less effective than it might otherwise be
- The continued viability, legality, and future of holding terror suspects at Guantanamo Bay and even other “black sites” in some European nations
- How do we balance the needs to secure ourselves with the freedoms we enjoy as citizens.
In light of the recent news that the CIA has killed al-Awlaki, I thought I’d flag my essay at CATO entitled “The Federal Protective Power and Targeted Killing of U.S. Citizens“
Here is an excerpt:
My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:
That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.
While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”
Read the whole thing here, and contributions from others here.
Maryland DUI attorney Gary S. Bernstein’s website and license plate have provided the opening for our discussion of plea bargains in my Ethical Criminal Practice class. Why? Well, Bernstein’s web address is http://www.noplea.com and on his webpage he features this picture of his license plate:
If you can’t read what that says, it reads “No Plea.” Now of course, I doubt Mr. Bernstein’s url and license plate reflect his actual approach to cases. I think it’s more likely that this is clever advertising intended to reassure clients that he will fight for them, not take their money and plead out their case. Nevertheless, his advertising provides a fun opening for discussion. Should a defense attorney explore the possibility of a plea? Must they?
The ABA provides us a helpful guide in ABA Criminal Justice Standard 4-6.1, The Defense Function. Specifically that standard reads:
Standard 4- 6.1 Duty to Explore Disposition Without Trial
(a) Whenever the law, nature, and circumstances of the case permit, defense counsel should explore the possibility of an early diversion of the case from the criminal process through the use of other community agencies.
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.
Would an attorney be sanctioned for failing to explore the possibility of a plea agreement? The ABA Criminal Justice Standards alone probably aren’t enough, given their intended purpose:
Standard 4- 1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Nevertheless, an interesting question is whether a policy of not accepting a plea can supersede one’s obligation to explore a plea. I think it can’t because one cannot adequately advise their client about the consequences of going to trial without also informing their client about the alternatives. That failure might mean a successful claim for ineffective assistance of counsel. Cf. Christopher F. Pittman v. South Carolina, Case No. 07-CP-12-00444 Related News Story here.
On September 14, 2011 Pepperdine University will be hosting its Inaugural Technology & Learning Faculty Conference. I will be presenting on Increasing Student Engagement and Measuring Learning with Clickers.
Here is an excerpt from the program:
Professor of Law Gregory McNeal is no novice to teaching with technology. Professor McNeal, who teaches in a traditional lecture style, talks about using clickers to gain feedback from students and engage with them in the classroom. In this session you will experience what his students experience as he takes you through a lesson focused on the-beyond-a-reasonable-doubt standard in a homicide case. This interactive presentation will demonstrate how clicker technology facilitates learning and critical thinking, and allows for immediate assessment. If you are interested in using clickers in your classroom, you should consider attending this session.
My presentation will demonstrate the use of Turning Technologies clickers (pictured at right).
The full agenda appears below:
Today at Chapman University School of Law I will be presenting at an event entitled “9/11 Ten Year Anniversary: Terrorism & Counter-Terrorism Since the Attack.” The event will begin at 11:45am in Room 142 and is sponsored by the Federalist Society.
From the promotional materials:
Gregory S. McNeal, legal scholar and specialist in terrorism and homeland security, will be discussing the decade since 9/11, reviewing U.S. policies as they have developed in response to and in anticipation of a dynamic and interconnected world rife with terrorist threats. We will also explore possible reasons why there have been no successful, major, sophisticated terror attacks on U.S. soil since 9/11
On Thursday, September 15th I will be presenting a paper entitled “Drones, Targeting, and Civilian Casualties” at Loyola University New Orleans- College of Law and at the Louisiana State University- Paul M. Hebert Law Center. 
