CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Wednesday, November 26, 2014

More commentary on Ferguson grand jury

At Slate, "Shadow Trial": 

This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown’s family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch’s decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights—ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson’s trial was it. Instead, we have a post-hoc document dump.

At, Jeffrey Toobin writes under the headline "Decision to announce grand jury verdict at night devastating":

[Prosecutor] McCulloch started his announcement late, and he was not finished until around 9 p.m., local time. His tone was icy and divisive. His sympathy for the Brown family was perfunctory. He seemed more angry at the news media than about the death of a young man.

The predictable reaction ensued. Protests began, some of them violent. Police responded with tear gas. Fires burned. Cars were destroyed. Gunshots were heard. The full scale of the damage was difficult to assess last night.

November 26, 2014 | Permalink | Comments (0)

"Cleveland video shows police shot boy within seconds"

From Reuters:

Cleveland officials on Wednesday released a video of the fatal police shooting of a 12-year-old boy that shows him pointing a pellet gun around a park before police arrive and shoot him within two seconds.

Tamir E. Rice was shot by a patrol officer on Saturday after a 911 call reported someone pointing a gun at people at the Cudell Recreation Center. The caller said the gun could be a fake.

November 26, 2014 | Permalink | Comments (0)

When the ham sandwich speaks: "Suspect testimony in the grand jury room"

Orin Kerr has this incisive post discussing the Ferguson grand jury and co-blogger Paul Cassell's view at The Volokh Conspiracy. In part:

Paul writes: “Only if there was good reason to discount [Wilson's] testimony, should the grand jury have returned a true bill.”

I’m not so sure. Isn’t there always “good reason” to discount a suspect’s exculpatory grand jury testimony? A guilty suspect has an obvious incentive to lie. It’s particularly easy to lie in a homicide case where the other participant is dead. The grand jury proceeding isn’t adversarial, or at least ordinarily is not, so the suspect is not cross examined and the holes in his story will remain unknown. And the fact that Wilson’s testimony seems so well-tailored to self-defense law could be seen as highly suspicious, rather than highly exculpatory.

November 26, 2014 | Permalink | Comments (0)

Meares on Stop and Frisk as a Program

Meares_tracey(1)Tracey L. Meares (Yale University - Law School) has posted Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident on SSRN. Here is the abstract:

This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.

November 26, 2014 | Permalink | Comments (0)

Leighton with a case study of corporate wrongdoing

Paul Leighton (Eastern Michigan University - Dept of Sociology, Anthropology & Criminology) has posted Mass Salmonella Poisoning by the Peanut Corporation of America on SSRN. Here is the abstract:

In late 2008, the Centers for Disease Control and Prevention first noted an outbreak of salmonella that would ultimately kill nine, hospitalize 166, cause up to 20,000 illnesses and lead to the recall of 4,000 products. Behind this mass poisoning was the Peanut Corporation of America (PCA) and CEO Stuart Parnell. This article provides a background about salmonella and the operations of PCA so readers can understand the criminal wrongdoing and outcome of the criminal trial. Using news reports and information from a former assistant plant manager, it documents the unsanitary conditions and the violation of virtually all Good Manufacturing Practices. These conditions cause widespread salmonella, thus adultrating their product and leading to fraud to cover up the problem.

November 26, 2014 | Permalink | Comments (0)

Lott on Deterring Crime Through Private Security Efforts

John R. Lott Jr. (Crime Prevention Research Center) has posted Comment on 'The Deterrence of Crime Through Private Security Efforts: Theory and Evidence' on SSRN. Here is the abstract:

Unfortunately, many who have examined the impact of so-called "shall-issue" or "right-to-carry" laws assume that the adoption of such laws causes a large, immediate increase in the number of permits. But that is often not the case, for states differ widely as to how easily permits can be obtained. This problem is particularly problematic for studies that have looked at the period after 2000. In fact, the share of the adult population with permits increased less during the 1999-2010 period in the states that adopted right-to-carry laws than the states that they are being compared against.

November 26, 2014 | Permalink | Comments (0)

Tuesday, November 25, 2014

"Woman Who Faked Son's Cancer Gets Probation [and 90 nights in jail]"

From the Colorado Springs Gazette:

Nguyen pleaded guilty in September to one count each of charitable fraud and child abuse.
Police say she convinced her son, family and others in the community that the boy had leukemia and had been receiving treatment since about September 2012.
. . .

Various community and school fundraisers raised about $25,000 for the family. According to her arrest affidavit, police said $23,000 in cash was found in her closet and Nguyen had used other money to pay for a family trip to Disneyland.

November 25, 2014 | Permalink | Comments (0)

"Rand Paul: The Politicians Are To Blame in Ferguson"

From Time:

In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America. The War on Drugs has created a culture of violence and put police in a nearly impossible situation.

In Ferguson, the precipitating crime was not drugs, but theft. But the War on Drugs has created a tension in some communities that too often results in tragedy. One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.

Three out of four people in jail for drugs are people of color. In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?

November 25, 2014 | Permalink | Comments (0)

Luther on Felon Firearm Rights Restoration

Robert Luther III has posted The Quiet Army: Felon Firearm Rights Restoration in the Fourth Circuit (23 William & Mary Bill of Rights Journal 237 (2014)) on SSRN. Here is the abstract:

This article discusses the restoration of firearm rights for felons and specifically addresses the methods by which individuals convicted of felonies under state law may be relieved of collateral federal firearms disabilities in the Fourth Circuit, with a particular emphasis on the practice in Virginia. It concludes by calling on the Fourth Circuit to make clear in an appropriate case that “a defendant’s ‘civil rights’ have been restored under state law for purposes of 18 U.S.C. § 921(a)(20) if the state has also restored the defendant’s right to possess firearms.” Due to the Supreme Court of Virginia's interpretation of the Virginia Constitution in Gallagher v. Commonwealth, which concluded that the governor lacked the authority to restore firearm rights and that only the state trial court could do so, the Fourth Circuit’s failure to construe 18 U.S.C. § 921(a)(20) as suggested will have the unintended and disparate effect of failing to relieve all state-convicted felons in Virginia from their collateral federal firearm disabilities. To read 18 U.S.C. § 921(a)(20) not to remove a federal firearms disability when the felon has received the unrestricted restoration of his firearm rights by a Virginia trial court would yield a perverse result because the purpose of this statute was to redirect the restoration process to the states.

November 25, 2014 | Permalink | Comments (0)

Oehme, Stern & Mennicke on Women Law Enforcement Officer and Campus Sexual Assaults

Karen Oehme Nat Stern and Annelise Mennicke (Florida State University College of Social Work, Institute for Family Violence Studies , Florida State University - College of Law and Florida State University - College of Social Work) have posted A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers (38 Harvard Journal of Law and Gender, 2015, Forthcoming) on SSRN. Here is the abstract:

The federal government has taken a range of measures to combat the scourge of sexual assault afflicting college campuses across the nation. Whatever the efficacy of these policies, however, they fail to address a major obstacle to curbing sexual violence on campus: the chronically low rate of reporting of this crime to the police. Research has produced data showing that reporting of sexual assault against women increases as female representation among officers increases. Yet, most university campus law enforcement agencies include strikingly few female officers. This Article proposes an increase in women’s representation in campus police agencies to foster more reporting by victims, and argues that schools failing to demonstrate consistent, ongoing, and genuine efforts to hire female officers are contributing to a hostile environment for complainants in Title IX litigation.

November 25, 2014 | Permalink | Comments (0)

"It’s Incredibly Rare For A Grand Jury To Do What Ferguson’s Just Did"

This post is at FiveThirtyEight. In part:

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.

November 25, 2014 | Permalink | Comments (0)

Monday, November 24, 2014

"California man's conviction in 1978 murder overturned on DNA evidence"

From Reuters:

A California man who spent more than 30 years in prison for a 1978 murder was ordered released on Monday by a judge who overturned his conviction based on DNA analysis and investigative reports that were withheld from his defense.

. . .

Hanline, who worked security at the motorcycle sale events, and was romantically involved with McGarry's ex-girlfriend, was arrested on an unrelated charge that month after traveling to Northern California and using McGarry's credit card.

He was charged with murder by prosecutors who suggested his motive was jealousy over McGarry's on-again, off-again relationship with the ex-girlfriend.

But DNA analysis conducted at the request of the California Innocence Project found it matched the profile of an unidentified male, not Hanline. A magistrate judge also found that prosecutors at the time had failed to turn over relevant material to the defense.

November 24, 2014 | Permalink | Comments (0)

"Will Texas Kill an Insane Man?"

Doug Berman at Sentencing Law & Policy links to and excerpts this piece from The New York Times. In part:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

. . .

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”


November 24, 2014 | Permalink | Comments (0)

Gibson & Lain on Death Penalty Drugs

James Gibson and Corinna Lain (University of Richmond School of Law and University of Richmond - School of Law) has posted Death Penalty Drugs and the International Moral Marketplace (Georgetown Law Journal, Vol. 103, 2015 (Forthcoming)) on SSRN. Here is the abstract:

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing have little interest in being merchants of death. But closer inspection reveals that European governments are the true instigators of the shortage. For decades, those governments have tried — and failed — to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was to stop exporting their drugs.

Continue reading

November 24, 2014 | Permalink | Comments (0)

Steinhoff on Self Defense

Uwe Steinhoff (University of Hong Kong - Department of Politics and Public Administration) has posted What Is Self-Defense? (Public Affairs Quarterly, Forthcoming) on SSRN. Here is the abstract:

In this paper, I will provide a conceptual analysis of the term self-defense and argue that in contrast to the widespread “instrumentalist” account of self-defense, self-defense need not be aimed at averting or mitigating an attack, let alone the harm threatened by it. Instead, on the definition offered here, an act token is self-defense if and only if a) it is directed against an ongoing or imminent attack, and b) the actor correctly believes that the act token is an effective form of resistance or the act token belongs to an act type that usually functions as a means to resist an attack. While resistance is effective in making the attack more difficult, it can often be overcome and therefore does not necessarily stop or mitigate the attack. This concept of self-defense, I shall argue, not only matches ordinary language use and plausible accounts of self-defense in the legal literature but also has important practical implications in helping to avoid confusions about necessity and proportionality. In particular, it avoids the notorious problem of the “knowingly helpless rape victim” whose futile struggle against the rapist (futile in terms of averting or mitigating harm) counter-intuitively could not count as justified self-defense on an instrumentalist account.

November 24, 2014 | Permalink | Comments (0)

Prosecutorial discretion

Not surprisingly, a couple of posts: this one at The Volokh Conspiracy, and this one at ACSLaw.Blog.

November 24, 2014 | Permalink | Comments (0)

Sunday, November 23, 2014

Langos on Sexting

Colette Langos (University of South Australia - School of Law) has posted Sexting: Time for Some Changes to the Law? ((2014) 36 (10) The Bulletin, 18-20) on SSRN. Here is the abstract:

Policy makers have, quite rightly, approached management of sexting with a degree of caution. Knee-jerk responses to conduct emergent with the development in technology demonstrate how governments of today (on occasion) employ the criminal law not as a last resort, but as the first resort. Such policy reactions call into question not only the purpose of the criminal law, but can also lead to the over-criminalisation of conduct. This paper discusses briefly the criminal laws which potentially apply to regulate sexting in South Australia.

November 23, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 297 The Impact of Whistleblowers on Financial Misrepresentation Enforcement Actions 
Andrew C. CallGerald S. Martin,Nathan Y. Sharp and Jaron H. Wilde 
Arizona State University (ASU) - School of Accountancy, American University - Kogod School of Business, Texas A&M University (TAMU) - Department of Accounting and University of Iowa - Henry B. Tippie College of Business 
Date posted to database: 7 Oct 2014 [2nd last week]
2 286 Information Networks: Evidence from Illegal Insider Trading Tips 
Kenneth R. Ahern 
University of Southern California - Marshall School of Business 
Date posted to database: 18 Oct 2014 [3rd last week]
3 182 A Conceptual Framework for the Regulation of Cryptocurrencies 
Omri Y. Marian 
University of Florida - Fredric G. Levin College of Law 
Date posted to database: 15 Oct 2014 [6th last week]
4 151 Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances 
Anil Kalhan 
Drexel University Thomas R. Kline School of Law 
Date posted to database: 28 Sep 2014 [8th last week]
5 141 Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 1 Oct 2014  [7th last week]
6 135 Trial Bargaining 
Gregory M. Gilchrist 
University of Toledo College of Law 
Date posted to database: 18 Sep 2014 [[10th last week]
7 133 Laws of Cognition and the Cognition of Law 
Dan M. Kahan 
Yale University - Law School 
Date posted to database: 30 Oct 2014 [new to top ten]
8 125 Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane 
Brandon Buskey and Daniel Korobkin 
ACLU and ACLU of Michigan 
Date posted to database: 14 Oct 2014 [new to top ten]
9 121 Paperwork and Punishment: It's Time to Fix FBAR 
Allison Christians 
McGill University - Faculty of Law 
Date posted to database: 17 Oct 2014 [new to top ten]
10 120 A Plea for Funds: Using Padilla,Lafler, and Frye to Increase Public Defender Resources 
Vida B. Johnson 
Georgetown University Law Center 
Date posted to database: 8 Sep 2014 [new to top ten]

November 23, 2014 | Permalink | Comments (0)

Saturday, November 22, 2014

"[NC] Judge unseals info on secret cellphone spying" excerpts and links to this article from The Hill:

A judge Friday unsealed a trove of court documents that could shed light on a secret cellphone tracking program used by police nationwide.

. . .

Included are 529 requests from local Charlotte-Mecklenburg police asking judges to approve the use of a technology known as StingRay, which allows cellphone surveillance.

Together, the requests give the most complete account yet of the U.S. law enforcement tactic, about which little is known.

November 22, 2014 | Permalink | Comments (0)

"Thousands of Criminals, on the Way Back to Your Neighborhood"

Bill Otis has this post at Crime & Consequences. In part:

Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later.  But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street.  He'll do this via executive clemency.

The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach.  Those questions are now answered.  There will be no effective limit whatever.

November 22, 2014 | Permalink | Comments (0)