The Supreme Court is currently considering the Gill v. Whitford, the Wisconsin gerrymandering case about whether Republicans gave themselves a guaranteed GOP majority when they redrew the state’s legislative districts in 2011. A key aspect of the plaintiff’s argument is a new way to test for partisan gerrymandering — the efficiency gap. The Washington Post explains how it works:
In this imaginary state, there are 20 green voters and 30 purple voters. Even though there are more purple voters, a district plan can be drawn that stacks the odds for green lawmakers to control the state.
The partisan plan makes three cracked districts, putting four purplevoters with six green voters and making it difficult for purple candidates to win. Boundaries in a cracked district are drawn in a way that intentionally dilute the vote.
Nine purple voters are packed into the two remaining districts with one green voter, where purple candidates will easily win.
To measure the efficiency gap for this plan, researchers would first count how many votes are wasted by each party. Wasted votes are those cast that do not contribute to victory.
Green candidates can win with a six-vote majority in the cracked districts, so four purple votes in each district are wasted. One green vote is wasted in the packed districts. Three purple votes are also wasted, since the purple candidate has more than the six vote-majority they need to win.
Vote cast above the simple majority needed to win
Vote cast in a district this party didn’t win
The difference between the wasted votes on each side is divided by the total number of votes to get the efficiency gap:
2-18/100 = 16% efficiency gap benefiting the green party.
The efficiency gap measurement was created by Nicholas Stephanopoulos, a University of Chicago law professor who is representing the plaintiffs in the Wisconsin case, and Eric McGhee, political scientist at the nonpartisan Public Policy Institute of California.
Lara Bazelon in Slate this month describes the unique role of the prosecutor in the criminal justice system – “is not that [they] shall win a case, but that justice shall be done.” (Berger v. United States) She then calls out those prosecutors who don’t accept that role, who are “innocence deniers”:
“These prosecutors do not “do justice” as the Supreme Court defines it. Instead, they delay justice and in some cases actively work against it. When a prisoner is exonerated by a lower court, these prosecutors double and triple down, filing appeal after appeal. Or they indict and prosecute the exoneree all over again, sometimes under a wildly different theory at the expense of time and resources that should be used to pursue the crime’s actual perpetrator. They may also threaten endless legal challenges to wring “no contest” pleas from innocent prisoners in exchange for time-served sentences. The prisoners, desperate to be free, accept these Faustian bargains, which brand them convicts for life and allow prosecutors to proclaim their guilt and the state to deny them compensation. Some prosecutors are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them.”
In addition to listing a number of prominent examples of this phenomenon, Bazelon goes on to point out a little-discussed problem with innocence denying: the real criminals go unpunished, posing a threat to public safety. According to the Innocence Project, 353 people have been exonerated by DNA evidence since 1989. The group has identified 152 actual perpetrators in those cases who went on to commit “150 additional violent crimes,” including rape and murder.
In an article by that title in “The Crime Report,” Matthew Mangino examines the issue of the Double Jeopardy Clause in the case of José Ines Garcia Zarate, who was acquitted in a California court of Kate Steinle’s murder but convicted of being a felon in possession of a firearm. Garcia Zarate has now been indicted on two federal charges similar to those he was convicted of in state court. The state conviction and new federal charges raise the issue of violating the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.
As Mangino points out, this issue is virtually identical to Gamble v. United States, a case that the Supreme Court is currently considering for certiorari. Gamble was pulled over in 2015 by an Alabama police officer for a broken taillight. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. He was prosecuted for illegal possession of a firearm and served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.
The Federal District Court ruled against Gamble under the “dual-sovereignty” exception to the Double Jeopardy Clause, an exception created by the Supreme Court which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. The rule dates back many decades, to a time when there was little federal criminal jurisprudence and so little overlap between federal and state crimes. Gamble and many Amici, including some conservative voices such as the Cato Institute along with traditional criminal justice advocates like the ACLU, are now asking the Supreme Court to reconsider the rule in light of the expansion of federal criminal statutes – “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” according to Justice Thomas in 1992.
Justice Hugo Black argued in a 1959 dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.”
Yesterday the Texas Supreme Court overturned two murder convictions based on evidence that their constitutional rights were violated as a result of repeated misconduct on the part of the former prosecutor who handled both trials. Dennis Lee Allen and Stanley Mozeewere convicted in 2000 of murdering Jesse Borns, Jr., a local store owner and lay minister and sentenced to life in prison. They were freed from prison in a Dallas County district courtroom more than three years ago based on new evidence uncovered as the result of a joint re-investigation of the case by the Innocence Project, the Innocence Project of Texas and the Dallas County District Attorney’s Office.
In March 2017, A District Judge found that prosecutor in the case had withheld numerous items of exculpatory evidence relating to informants and eyewitnesses from both defendants and had also presented false testimony from these witnesses at both Mozee’s and Allen’s trials. The findings were entered with the support and agreement of Dallas County District Attorney Faith Johnson and her Conviction Integrity Unit. Yesterday the Texas Court of Criminal Appeals agreed with the district court’s findings and vacated both murder convictions on due process grounds.
So, what happened to the prosecutor who put two innocent men in prison for a decade? According to the Innocence Project, the ADA, Rick Jackson, “is no longer with that office.”
Two Fourth Amendment cases in the Supreme Court today:
1. Byrd v. United States:
Byrd was driving a rental car that was stopped and searched without a warrant. Byrd is arguing that drivers of rental vehicles have a reasonable expectation of privacy even if they are not authorized drivers on the rental agreement but have the renter’s permission to drive it. The U.S. Court of Appeals for the Third Circuit said that because Byrd was not on the rental agreement, he had no property interest in the car, no reasonable expectation of privacy in the locked trunk—which contained body armor and 49 bricks of heroin—and no Fourth Amendment protection from a suspicionless search. The case has significant implications beyond the technical “rental agreement” surface; as one amicus brief points out, “the connected car is a computer on wheels.” And if you look under the hood, “you will see that the warrantless search of a modern vehicle implicates far more privacy interests than the physical search of a ’66 Buick LeSabre.” What’s needed is a clear Fourth Amendment rule to limit police access to personal data stored in the vehicle.
2. Collins v. Virginia
Ryan Collins had a covered motorcycle in the driveway of his home that the police searched without a warrant. The Virginia Supreme Court held that the Fourth Amendment’s vehicle exception applied: no warrant needed when police have probable cause to believe a vehicle was engaged in illegality. Groups supporting Collins warn that the Virginia Supreme Court’s decision threatens the Fourth Amendment’s foundational protection of the privacy of the home. If that decision is endorsed, they say, the warrantless invasion of a home will be excused as long as the purpose of the invasion was to search an automobile parked on the property.
The Supreme Court has now decided not to grant review in either of the two prosecutorial accountability cases discussed in my post of Oct. 16, Woods v. Smith and Stein v. US. Its worth contemplating again for a moment what that means. In Stein the Eleventh Circuit held that defendants must show not only that the prosecution knowingly presented perjury, but also suppressed evidence of the falsity of the witness’s testimony from the defense team. The Solicitor General argued that “there is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object.” In short, the U.S. Government has argued that it can effectively shift the burden to the defendant to call out perjured testimony; the prosecution is free to knowingly elicit untrue statements, or at the very least, sit quietly if one of its own witnesses testifies falsely, and there is no ethical issue in that unless the defense objects. Remarkably, this view — a far cry from the the Supreme Court’s former lofty vision that a prosecutor is “not at liberty to strike foul [blows]” and that prosecutors have a duty to seek justice, not convictions — is described in the Solicitor General’s Stein brief as a “common-sense proposition.”
Please check out the new Voting Rights and Voter Suppression: Navigating State and Local Barriers to the Ballot from Access Democracy and Indivisible 435. The guide covers specific steps anyone can take to help make voting more accessible for every eligible person. Quoting a study by Charles Stewart, a political scientist at MIT, that found more than 1 million Americans weren’t able to vote in 2016 because of problems like long lines at the polls, mail ballots not arriving on time, and registration problems, the guide covers 4 specific areas of action:. That’s 1 million people who wanted to vote and couldn’t—in an election decided by fewer than 80,000 voters across 3 states.
The way elections are run is a mix of federal and state law. From Alaska to Florida, officials at the state and local level are charged with implementing voting laws and rules. These officials work year-round to set up and manage elections, not just on Election Day. You don’t often hear about these officials, and that’s because most of them just want to make sure elections run right. But state and local officials don’t always have access to the resources they need to drive the result we all want: fair, equal, and easy access to the ballot.
The challenges that voters face are often a result of decisions made by these election officials. Just like with any public official, it’s critical that the officials who implement your state’s voting laws and rules hear from their communities. By letting your state and local election officials know that you care about the right to vote, you can have an impact on the decisions they make to ensure fair, equal, and easy access to the ballot—for every voter in your state.
Your election officials need to know that we demand fair, equal, and easy access to the ballot. This guide covers 4 simple steps you can take today to change how elections are run in your community and protect the right to vote for every eligible American:
- Call your Statewide Election Official—so that you can better understand how elections are run in your state—and ask the official to use his or her power to make it easier for all eligible Americans to vote
- Call your Local Election Official—so that you can better understand how elections are run in your community—and ask the official to use his or her power to make it easier for all eligible Americans to vote
- Become a Poll Worker—a friendly knowledgeable poll worker can be the difference between a citizen successfully voting and a voter being inadvertently turned away from the polls
- Register, Register, Register—the first step towards participating in our democracy is to register; so register everyone you know, everywhere you go!