Copyright (c) 2009 All rights reserved. http://works.bepress.com/george_thomas Recent documents in George C Thomas III en-us Sun, 31 May 2009 06:09:36 PDT 3600 http://works.bepress.com/george_thomas/5 http://works.bepress.com/george_thomas/5 Wed, 08 Nov 2006 12:51:56 PST The Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to answer this question. George C. Thomas III Criminal Law and Procedure http://works.bepress.com/george_thomas/4 http://works.bepress.com/george_thomas/4 Wed, 08 Nov 2006 12:51:55 PST Miranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart's book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, but he does not persuade that they played a critical part in shaping the future that became Miranda. He omits entirely Yale Kamisar, even though Kamisar's 1965 article provided the conceptual basis for the Miranda approach to the interrogation problem. Beyond his odd choices about what to include and what to omit, Stuart tells a messy, sometimes erroneous, and pretty trite story about the importance of Miranda in the American scheme of justice. He is so absorbed in telling this story that he misses what is, in my judgment, the real story: Miranda has had precious little effect in the police interrogation room. George C. Thomas III Criminal Law and Procedure http://works.bepress.com/george_thomas/2 http://works.bepress.com/george_thomas/2 Wed, 08 Nov 2006 12:51:54 PST Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call "mundane" in the essay. I defend the proposition that mundane acts of discretion should not be condemned because they are simply the residue of what it means to be human. Even the decision of a police officer not to arrest a speeder because the officer is too lazy or too near the end of her shift is, I argue, value neutral because it is not based on any characteristic of the suspect. Once we realize that most types of discretion are either good or mundane, it is easier to think about the problem of remedy for bad types of discretion. On that score, the essay is not optimistic that effective remedies can be designed to counter discretion based on race, sex, or class but some remedies are considered. George C. Thomas III Criminal Law and Procedure http://works.bepress.com/george_thomas/3 http://works.bepress.com/george_thomas/3 Wed, 08 Nov 2006 12:51:11 PST Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court's lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury reach a verdict without pressure from the judge, but giving voice to that principle has resulted in a bewildering array of approved instructions. This article argues that the law of 1824, manifested in Justice Story's opinion in United States v. Perez, was superior to today's morass. In 1824, judges had virtually uncontrolled discretion to decide when to declare a hung jury. We argue for a return to 1824 with one twist: that judges give deadlocked juries the instruction: "Please continue to deliberate." This simple change will result in fewer hung juries and far fewer appeals about whether the instructions were too coercive. George C. Thomas III Courts