White-Collar Crime

Motions To Dismiss For Everyone!

We can do a lot to reform the criminal justice system with one simple step.

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Is there anything more delightful than the Green Bag?

I was first introduced to it when John Elwood was writing his “What were they thinking” summaries of the Supreme Court’s terms.

Check out this sort of recent gem (with Eric White):

There is a word for people who accurately predicted the Court would uphold the Affordable Care Act’s “Individual Mandate” by a 5-4 vote with the Chief Justice providing the decisive vote and Justice Kennedy in dissent: liars. Most people who predicted a win for the Individual Mandate thought the Chief would be a “bonus” who came along for the ride only if Justice Kennedy were already going that way, thus furthering the Chief’s goal of reducing 5-4 decisions and engaging in damage limitation by assigning the opinion to himself, see Dickerson v. United States, 530 U.S. 428 (2000). There’s also a word for those who additionally predicted that the Mandate would be upheld as an exercise of the taxing power: damned liars. Having sat through the full 3,428 hours of oral argument, it is only a slight exaggeration to say that anyone momentarily enraptured by Justice Ginsburg’s jabot might have missed the entirety of the questioning on Congress’s taxing authority.

Or,

It is said that just before a car accident, those involved perceive events occurring in slow motion. October Term 2009 was a lot like that. I don’t mean to suggest that a car accident has much in common with the recently completed Term as a general matter. Far from it. One is a traumatic event, a wrenching collision of forces that will scar those involved for years to come, leaving hideous, deforming wounds that will heal slowly, if at all. The other just involves banged-up cars.

See also this and this.

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The Green Bag also has the coolest subscriber swag in the legal world — Supreme Court Justice bobbleheads.

Just when I thought the Bag could get no cooler, I saw the most recent issue and James Burnham’s article “Why Don’t Courts Dismiss Indictments?”

The problem he is addressing is one I’ve written about frequently here — there are too many federal criminal statutes and their reach is either overbroad or uncertain. And, unlike in civil cases, there are precious few mechanisms to allow the government’s legal theory to be challenged before trial.

Burnham’s piece advocates a very simple change — modify our understanding of the Rules of Criminal Procedure so that judges can dismiss indictments pretrial.

Here’s how he puts it:

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Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints. Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

Burnham writes, usefully, about the colossal waste of time and money that was the Newman decision. The sole issue there was about the government’s legal theory of insider trading. Instead of just briefing the legal issue then having the district court and court of appeals decide it, both the government and the defense had two teams of lawyers go through a trial, just to get an issue to the Second Circuit. Leaving aside how massively stressful this is for the guy charged with a crime and facing prison, this is a crazy use of resources.

There’s talk of criminal justice reform in Congress. Perhaps a nice way to accomplish some real reform that helps everyone quickly would be to amend the Rules of Criminal Procedure to make it clear that judges should have — and exercise — more power to dismiss indictments that fail to make out criminal conduct, and to require indictments to provide more factual specificity.

Why Don’t Courts Dismiss Indictments? [Green Bag]

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