A structural, spectroscopic and theoretical study of the triphenylphosphine chalcogenide complexes of tungsten carbonyl, [W(XPPh3)(CO)5], X=O, S, Se

The series [W(XPPh3)(CO)5], X=O, S, Se has been structurally determined by X-ray crystallography and fully characterised spectroscopically to provide data for comparing the bonding of the Ph3PX ligands to the metal. The P-X-W angles are 134.3°, 113.2° and 109.2°, respectively, for X=O, S, Se. The bonding has been analysed using EHMO calculations which suggest that lower P-X-W angles depend on the relative importance of σ-bonding, which in turn depends on the chalcogen in the order X=Se > S > O. The effect is enhanced by lower energies of the metal σ and π orbital energies

Plea Bargaining, Sentence Modifications, and the Real World

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for the Commission for many years to come. In her opinion, Sotomayor suggests, in dicta, that the government can preempt future sentencing reduction claims through the insertion in plea agreements of waiver clauses. Should the Department of Justice adopt such a policy, the article warns of (and describes) the long-term adverse consequences that such a decision would have for criminal defendants and for ability of the Commission to achieve equity through guideline sentencing. As part of its critique of Freeman, the article also explains why the Freeman Court erred in its analytical approach. In so doing, it illuminates the real world of plea bargaining in the Freeman context, and explains why this plea negotiation truism provides a sounder, firmer, and clearer foundation to decide not only Freeman-type cases but any such case involving a sentence reduction claim. The article also uses Freeman to highlight and correct a common misunderstanding about the nature of plea agreement contracts. It explains why plea agreements have been erroneously construed as unilateral arrangements between the prosecution and the defendant, and why they should properly be interpreted as bilateral contracts involving three parties — the prosecution, the defendant and the court

Policing in the Era of Permissiveness: Mitigating Misconduct Through Third-Party Standing

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly over a Taser in Slager’s possession. A bystander began filming the confrontation at this point, capturing Slager firing his Taser at Scott, the two men tussling, something falling to the ground, and Scott subsequently attempting to flee. With Scott’s back to the officer, Slager, while in an upright, stationary position, fired eight shots in Scott’s direction, striking him several times and causing him to fall face down to the ground. After approaching Scott, Slager placed him in handcuffs before calling and reporting to dispatch that Scott was “down” and that “[h]e took my Taser.” About 90 seconds later, Slager contacted dispatch for a second time. This time, he reported that Scott was unresponsive and had suffered wounds to various parts of his body. Scott, who was African-American, died at the scene. He was 50 years old. On June 8, 2015, Slager, who is white, was indicted for first-degree murder. The Walter Scott shooting is but one of a steady stream of police misconduct cases of late involving white officers and black individuals that have generated significant media coverage and public conversation. The Staten Island, New York, chokehold case involving Eric Garner, the Cleveland, Ohio, death of Tamir Rice, who was 12 years old and was carrying a fake gun in a public park when he was shot by a police officer, the shooting death of Michael Brown at the hands of a police officer after a confrontation in Ferguson, Missouri, and the Sandra Bland incident in Hempstead, Texas, where she was stopped for a traffic violation, threatened by an officer with a Taser, and later found dead in her jail cell, are among the notable events that have thrust the issue of police misconduct back into the national spotlight. Whereas the Warren Court era was characterized, in part, by its expansive protections of individual constitutional liberties, the Supreme Court in the years since has steadily—and significantly—undermined many of these outcomes. With the weakening of constitutional safeguards has come an expansion of law enforcement’s authority to perform their investigative functions and a corrosive influence on police organizational culture. This article argues that the Court’s post-Warren era of investigative permissiveness has contributed to what Professor Barbara Armacost describes as “an overly aggressive police culture” that is increasingly emboldened by highly favorable search and seizure, interrogation, and identification laws and extremely limited—and forgiving—exclusionary rule jurisprudence. The goal of this article is to build upon the academic literature relevant to the issue of policing and offer a pragmatic, remedial measure that provides incentives to police agencies to improve their institutional culture and become more constitutionally compliant. By focusing on the Supreme Court’s jurisprudence in the Fourth Amendment exclusionary rule and standing contexts, this article demonstrates how the Court, over the course of many years, has contributed to this problematic police culture and thus to the associated problems of police malfeasance. In the end, the article proposes an unprecedented expansion of the standing doctrine. It argues that as more aggrieved individuals are empowered to challenge constitutionally questionable police conduct, institutional cultures will, in turn, adapt to this new reality, thereby producing a climate that fosters greater respect for constitutional liberties, discourages unnecessarily aggressive police behaviors, and improves relations between law enforcement and the majority and minority communities they serve

The Independent Counsel Statute: A Premature Demise

With the backdrop of the impeachment trial of President William Jefferson Clinton, Congress was confronted with the quandary of whether to reauthorize the independent counsel statute. As the statute approached its June 30, 1999 lapse date, lawmakers grappled with and bandied about an array of proposals, including statutory abandonment, in the midst of tremendous political tension and public fervor over the actions of the President, Independent Counsel Kenneth Starr, and members of Congress. Ultimately, Congress allowed the statute to expire, leaving the prosecution of high-ranking Executive Branch officials in the hands of the Department of Justice. Advocates of reauthorization could only hope that the issue of reauthorization would be revisited at a later time. As noted by Senator Thompson, a persistent shortcoming associated with the statute “over the last 20 years” had been the failure to effect a statutory balance which preserved prosecutorial independence and latitude, yet provided sufficient safeguards against the runaway exercise of prosecutorial discretion. Indeed, this objective underlied the statute\u27s enactment. With Watergate serving as the precipitous event, and after five years of legislative effort, the original version of the statute emerged in 1978. Perceived as a mechanism that would bolster public confidence with respect to the prosecution of high-ranking members of the Executive Branch, the statute removed the prosecutive function from the Justice Department and placed it in the hands of a judicially appointed independent counsel. However, despite repeated attempts at modification, many believed that the want of adequate safeguards with respect to independent counsel activity, inter alia, ultimately undercut the very purpose of the legislation. In this article, I dispute the contention that the statute\u27s arguable failures with respect to independent counsel accountability mandate statutory abandonment. By allowing the statute to lapse, Congress has necessarily subjected the public to the observance of a prosecutorial process strewn with conflicts of interest, as well as individual defendants to investigations and prosecutions pursued by interested prosecutors. Instead, through statutory modification, the coveted balance between independent counsel liberty and accountability can be effectively achieved. I will demonstrate how, through a proposal I initially presented in the Harvard Journal of Law and Public Policy, this balance can be achieved and the statute salvaged. To this end, I commence with a historical retracing of the statute, from its inception in 1978 through its last reauthorization in 1994. Thereafter, I will discuss and critique the leading argument presented in opposition to statutory renewal during the congressional reauthorization hearings in 1999. Finally, I will reintroduce my proposal for statutory reform and proceed to critique it in light of Morrison v. Olson, the United States Supreme Court case which upheld the statute\u27s constitutionality. Through a detailed dissection of the opinion, I will demonstrate not only the proposal\u27s constitutionality, but also how the proposal effectively regulates independent counsel activity, preserves independent counsel liberty, and ensures appearances of propriety

Plea Bargaining at The Hague

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before the court - a disadvantage further entrenched by defense counsel who are unfamiliar with the process of plea bargaining. The inadequacies of plea bargaining at The Hague are particularly important in light of the ICTY\u27s role in setting precedents for other international criminal tribunals. As such, the Article concludes by offering curative measures to ensure greater fairness in the international plea bargaining process. Most notably, the Article proposes that the ICTY should move toward an American-style plea bargaining system to ensure that pleas satisfy standards of procedural fairness

Police Culture in the Twenty-First Century: A Critique of the President\u27s Task Force\u27s Final Report

In response to a series of events involving police-citizen encounters, including those in Ferguson, Missouri, and Staten Island, New York, that have strained relations between law enforcement and the communities (primarily minority) that they serve, President Barack Obama established a task force charged with developing a set of recommendations designed to improve police practices and enhance public trust. Headed by Charles Ramsey, Commissioner of the Philadelphia Police Department, and Laurie Robinson, former Assistant Attorney General for the U.S. Department of Justice Office of Justice Programs, and currently a Professor of Criminology, Law, and Society at George Mason University, the eleven-member task force submitted its documented recommendations in May 2015. In a report entitled the Final Report of the President’s Task Force on 21st Century Policing (the Report), the task force sets forth in excess of sixty recommendations, which address, among other things: building community trust, police policies, employment of technologies, officer training, and officer wellness and safety. The Report suggests that effective policing and improved community relations can be achieved through redirected police policies, enhanced communication with—and involvement of—local communities in public safety matters, as well as improved and sensitized law enforcement training. Rather than engage in a comprehensive examination of the Report’s proposals, this Essay will address an important theme highlighted by the task force—the importance of reforming police culture—and explain why the well-intentioned recommendations proffered in the report associated with addressing cultural change will face substantial hurdles to successful implementation

Police Reform and the Judicial Mandate

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. McDonald was shot sixteen times. Dash cam footage revealed that McDonald was holding a small knife and, in contravention of reports prepared by Van Dyke and several other police officers, was walking away from the officers at the time of the shooting. Emanuel’s reform measures have been met with skepticism. It has been noted, for example, that CPD officers have carried tasers for many years, and despite theexpanded use of the devices since 2010, there has been no “immediate” decrease in police shootings. And while many experts deem police de-escalation training to be beneficial, they argue that without effective supervision and identifiable measures to ensure officer accountability, such training might be of limited value. Irrespective of the merits of these criticisms, police reforms, such as those announced by Emanuel, face a prospect for sustained success that is daunting. This Essay will explain why decisions rendered by the United States Supreme Court since the close of the Warren Court era in 1969, argue against the prospect of positive, sustained remedial change, and why meaningful, enduring police organizational improvements will be difficult to achieve absent the adoption of an expansive standing doctrine and a reinvigorated exclusionary rule. In making this argument, I will examine the DOJ’s employment of consent decrees as a mechanism to force positive remedial change, and explain why judicial oversight — an inherent aspect of the consent decree remedial process — is essential to the achievement of effectual police reform

Suspicionless Policing

The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it is people of color, and African Americans in particular, who bear the brunt of these practices. Through a review of the Supreme Court’s stop and frisk precedents and an examination of police practices in various contexts, this Article examines this phenomenon and explains why aggressive police practices, such as those observed in the McClain case, are unlikely to abate in the years to come

Prosecuting Executive Branch Wrongdoing

Attorney General William Barr\u27s handling of Robert Mueller\u27s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr\u27s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and Prosecutorial structure must be implemented that grants a Prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations-the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute