The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp, Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he
review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone. In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.
As the article notes, this issue will be decided this term by the United States Supreme Court. Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.
In a stunning and unprecedented decision, a federal district judge in Louisiana vacated the convictions of five New Orleans police officers who were convicted of killing civilians in the aftermath of Hurricane Katrina. Judge Kurt Engelhardt, in a 129-page opinion, found that the “grotesque” misconduct of several federal prosecutors who posted inflammatory online comments using fictitious names that viciously attacked the New Orleans police department and the individual police officers as “racist,” “delusional,” and “inept” was such flagrant misconduct and so likely to have prejudiced the jury that a new trial was warranted.
Material witness orders give prosecutors the power to detain uncooperative witnesses in the rare circumstance in which they might flee. However, recent wrongful conviction cases reveal that NY prosecutors may be misusing such orders to coerce testimony from reluctant witnesses. The law may be clear but prosecutors may be bypassing the required judicial review, detaining witnesses, and coercing testimony that is ultimately unreliable.
Margaret Colgate Love specializes in tracking the use and abuse of the executive power to pardon. In her 2010 article The Twilight of the Pardon Power she points out how, since 1980, the presidential pardon power has fallen into disuse.
[I]ts benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction.
Ms. Love urged President Obama to revive the pardon power and to use it wisely, but that doesn’t seem to have happened. Professor Bennett Gershman writes about the case of Donald Seligman, ex-governor of Alabama, who was convicted of bribery under troubling circumstances after an earlier indictment had been dismissed by a judge who characterized it as “completely without legal merit” and “the most unfounded criminal case over which I presided in my entire judicial career.” Over 100 attorneys general from both political parties have condemned the legality of Seligman’s criminal prosecution. The politics behind this prosecution continue to have a major impact on the case because of the political nature of the pardon power. For more on this case click here.
You can also read more about the pardon power, as well as sentencing and the collateral consequences of sentences at Ms. Love’s website.