Thursday, November 25, 2004
As an early New Year's Resolution, I hope more CrimProfs will undertake to do what Vanderbilt's Owen Jones did: Upload older articles on SSRN. At the beginning of November, I happened to notice, he posted some papers dating back to 1997. It is great for authors to have a full set of articles accessible to any interested reader with an internet connection (even if the reader doesn't have access to, or want to pay for, Westlaw or Lexis), and for readers to benefit from a large body of free, full-text papers (Westlaw and Lexis printouts are much harder to read anyway, I think). [Jack Chin]
Supreme Court of Florida Holds that Officer Retaining License to Run Warrant Check Does Not Convert Consensual Encounter Into Unlawful Detention
In the recently-issued State v. Baez decision, the Supreme Court of Florida held that a consensual encounter, in which the officer asks to see the citizen's identification, is not turned into a unlawful seizure when the officer extends the encounter by taking the identification to his patrol car and running a warrants check. The dissent criticized the majority decision for "appearing to create a category of police-citizen encounter that is neither fish nor fowl--neither a wholly consensual encounter nor a detention supported by reasonable suspicion of criminal activity." [Mark Godsey]
Wednesday, November 24, 2004
What came across the wires as just another mass murder turns out to be much more complicated. Chai Vang, a 36 year old Hmong immigrant charged with killing six hunters in Wisconsin, says he shot at them only after they shot at him first and hurled racial epithets. The dispute began after Vang used a tree stand on private property but adjacent to public hunting lands. Vang is a U.S. Army veteran and evidently was arrested before, but AP reports no convictions. With the race angle, complicated facts and a huge sentence upon conviction (although Wisconsin does not have the death penalty), it is perfectly foreseeable that there will be no plea, but instead a major trial. Here's the NY Times story. [Jack Chin]
Tenth Circuit Rejects Constitutional Challenges to "Clear and Convincing" Standard Pertaining to Post-Trial Civil Commitment Proceedings of Insanity Aquittees
Facing an issue of first impression, the Tenth Circuit held in U.S. v. Weed that requiring an insanity aquittee who seeks release to prove by clear and convincing that his release will not pose a substantial risk of bodily injury to another person, as set forth in 18 U.S.C. § 4243(d), does not violate due process or equal protection. The court ruled that the heightened showing is "justified by the government's strong interest in safeguarding society from insanity acquittees, and that the defendant's assertion of an imperiled liberty interest is somewhat undercut by the fact that the defendant chose to avail himself of the insanity defense in the first place." More... [Mark Godsey]
In London, jurors convicted Andrew Pearson of robbery 11 years after the crime. The crucial evidence consisted of 25 flakes of dandruff found in the stocking-mask worn by the perpetrator. The DNA profile found in the dandruff flakes matched the DNA profile of Pearson's saliva swab taken after his June 2004 arrest. More... [Mark Godsey]
MSNBC.com reports that:
"More than 7,400 hate crime incidents occurred nationwide last year, more than half of them motivated by racial prejudice, most often against black people, the FBI reported Monday.
Hate crimes motivated by anti-black racial bias totaled 2,548 in 2003, more than double such crimes against all other racial groups combined. There were 3,150 black victims in these cases, including four who were murdered, according to the annual FBI report.
The overall total of 7,489 hate crime incidents reported in 2003 was slightly above the number reported in 2002. Nearly two-thirds of the crimes involved in such cases are intimidation, vandalism or property destruction." [Mark Godsey]
Tuesday, November 23, 2004
Studies show that jurors are often confused by legal jargon when the judge instructs them on the law at the end of a criminal case. NPR reports on the controversy surrounding California's attempt to simplify these instructions. To listen, click here. [Mark Godsey]
The DuiBlog reports that breathalyzers don't actually measure alcohol content. They simply measure the amount of compounds in the breath that absorb energy--alcohol being a common one. But many other compounds in the breath can also absorb energy, causing falsely high readings. For example, being on a diet that causes low blood sugar can also cause a breathalyzer to reach a high "blood alcohol" content. Since the Atkins diet works by dramatically lowering-blood sugar, be careful before driving under the influence of Atkins. [Mark Godsey]
The Protect Act, enacted last year, allows federal prosecutors to go after Americans who travel overseas to molest children. Last week, John Seljan, an 86-year old California man, became the first American to be convicted after trial for violating this law. A federal agent testified that Seljan had confessed to having "sexually educated" young girls in the Philippines with their parents' consent since 1983, and that he believed it was "legal and culturally accepted in that country." Seljan was arrested when boarding a flight from LA to the Phillipines, and had in his possession more than 100 pounds of chocolate, presumably to be used in seducing young girls. Seljan faces a minimum term of ten years' imprisonment, and a maximum of 270 years. More ... [Mark Godsey]
Rutgers CrimProf Sherrie Colb writes on CNN about why it is a search and/or seizure to shave the hair off a suspect, criticizing a decision of the 3d Circuit. I really would love someone to explain to me how she could be wrong. The 3d Circuit's view is that because hair is in plain sight, there is no reasonable expectation of privacy. That's true as to seeing the hair, but not to cutting it off and incinerating it in a test. My diamond ring and car are in plain sight too; does that mean the government can just take and destroy them? [Jack Chin]
Monday, November 22, 2004
The above-titled paper by Cornell Prof Theodore Eisenberg recently posted on SSRN addresses the question: "Why do black defendant-black victim cases receive by far the lowest rate of death sentences?" The abstract states:
"One hypothesis is that prosecutors devalue black victims' lives and do not regard black-victim murders as seriously as white victim murders. A second hypothesis, one that need not preclude the first, posits that black communities' aversion to the death penalty leads prosecutors to seek it less, or juries to impose it less, in minority communities. The first view represents a version of old-fashioned stereotypical racism. The second hypothesis could be regarded as democracy at work. Communities more hostile to the death penalty elect officials and process criminal cases in a manner that reflects local community values. This Article finds that, in addition to the number of murders, three other demographic factors influence the death sentence rate at the county level. The rate of death sentences decreases as a county's black population percent increases, as a county's per capita income increases, and as a county's homicide rate increases." [Mark Godsey]
On November 20, a day after Sri Lankan High Court Judge Sarath Ambepitiya and his police body guard were shot and killed outside the judge's Colombo home, Sri Lanka reactivated the death penalty for rape, murder, and drug trafficking. In his career as a High Court Judge, Ambepitiya ordered life sentences for many members of the organized underworld of crime in Sri Lanka, and a drug gang is suspected of murdering him. Sri Lanka has not executed anyone since 1976. More... [Mark Godsey]
Citing a poll indicating that 70% of Texans believe innocent people have been executed, a Texas representative proposed a moratorium on executions pending study of the DNA and capital punishment system; attending the press conference was Kirk Bloodsworth, the first death row inmate exonerated by DNA. Another bill will be introduced in Texas to allow compensation for the wrongfully convicted. The Maryland Board of Public Works has approved $1.4 million for Michael Austin, who spent 27 years in prison for a murder he did not commit. In Michigan, Kenneth Wymienko was exonerated by DNA after being sentenced to 40-60 years for rape. According to a Detroit Free Press report on his civil suit against the authorities, a police informant who was a key witness at the criminal trial admitted that he was part of a police set-up. More here. Cardozo CrimProf Peter Neufeld criticized the Monroe (NY) County prosecutor for objecting to DNA testing in two murder cases. More here. The family of Welshman Timothy Evans, executed in 1950 for a double murder, won a judicial declaration of innocence. Evans, an adult with a mental age of 11, confessed to killing his daughter and wife but the actual perpetrator was John Christie, a downstairs neighbor who was a key witness against him. Christie killed at least six other women before confessing in 1953. The story was made into the movie Ten Rillington Place starring Richard Attenborough, and Evans' wrongful execution contributed to the abolition of the death penalty in the UK. [Jack Chin]
Sunday, November 21, 2004
A 12 year old Tennessee girl was charged with falsely claiming she had been raped; in fact the sexual encounter with several football players was consenual. Becasue she was below the age of consent, the boys have been charged with a criminal offense. I suppose technically the false statement was material because it would affect the nature of the charge, but given that the age of consent is meant to represent the dividing line between responsibility and irresponsibility, it seems quite harsh. [Jack Chin]
Police Departments in Chicago, Evanston and Joliet are experimenting with the sequential line up protocol recommended by some social scientists to improve the accuracy of identification procedures. Line-ups will be administered by officers who do not know which of the participants is the suspect, and witnesses will not look at the lineup all at once, but will view suspects one at a time, being required to give a yes or no before moving on to the next. This procedure will be used in half of the lineups. [Jack Chin]
Saturday, November 20, 2004
Stuart Green of the Louisiana State University Paul M. Herbert Law Center is the first professor featured in the Crim Prof Blog Professor Spotlight.
Professor Green is the Director of the Pugh Institute for Justice and the Louis B. Porterie Professor of Law at Louisiana State University, where he teaches courses in Criminal Law, Criminal Procedure, White Collar Crime, Punishment and Sentencing, and Legal Ethics.
Professor Green also serves as a legal advisor to the ACLU of Louisiana, and a member of Louisiana’s Indigent Defense Assistance Board, and has previously served as Chair of the Association of American Law School’s Sections on Criminal Justice and Comparative Law.
During the 2002-03 academic year, he served as a Fulbright Distinguished Scholar to the United Kingdom, in residence at the University of Glasgow School of Law. He has also taught at the University of Arizona and American University law schools.
Professor Green is a 1988 graduate of the Yale Law School, where he was a Notes Editor of the Yale Law Journal. Following graduation from law school, he clerked for Judge Pamela Ann Rymer of the U.S. Court of Appeals for the Ninth Circuit and U.S. District Court, in Los Angeles. From 1990-95, he practiced law with the firm of Wilmer, Cutler & Pickering, in Washington, D.C.
His work on topics such as regulatory crime, criminal enterprise liability, criminal law codification, white collar crime, comparative criminal law, victims’ rights, strict liability, justified homicide, theft, fraud, perjury, obstruction of justice, bribery, extortion, plagiarism, deception, cheating, and the criminal law’s Special Part has appeared (or is forthcoming) in a wide range of peer- and student-edited publications, including Michigan Law Review, Hastings Law Journal, University of Illinois Law Review, North Carolina Law Review, Emory Law Journal, American Criminal Law Review, Journal of Criminal Law & Criminology, Law and Philosophy, Criminal Law Forum, Criminal Justice Ethics, Revue Internationale de Droit Pénal, Buffalo Criminal Law Review, and the book, Appraising Strict Liability (OUP). He frequently offers commentary on criminal justice issues in the national and local media, including in op-ed pieces in the Los Angeles Times, Houston Chronicle, and Detroit Free Press, and he has lectured widely throughout the United States and Europe.
He is currently completing two books that are under contract with Oxford University Press. The first, entitled A Moral Theory of White Collar Crime, will be published as part of OUP’s series of Monographs on Criminal Law and Justice. The second, co-edited with philosopher R.A. Duff, is entitled Defining Crimes: Essays on the Criminal Law’s Special Part. For a more complete list of his scholarly works and links to abstracts click here.
Professor Green and his wife Jennifer Moses live with their three children (Sam, Rose, and John), their dog (Marion) and their bird (Skipper) in Baton Rouge.
Each Saturday, CrimProf Blog will spotlight on one of the 1500+ criminal justice professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community. Please email us suggestions for future CrimProf profiles, particularly new professors in the field.
University of Arizona psychology professor Robert Bechtel recently revealed to his colleagues and students that 50 years ago he shot and killed a fellow student at Swarthmore. He had been bullied by a group of students over time, and finally decided to kill one of them. Professor Bechtel was hospitalized, tried and found not guilty by reason of insanity. Never asked about his criminal record when he was hired decades ago, he went public, he said, to highlight the dangers of bullying.
Professor Bechtel is not the only faculty member recently revealed to be a killer; in 2003, a Penn State education professor, Paul Krueger, was found to be on parole for a 1965 triple murder. Meanwhile, Kansas State English professor Thomas Murray is facing murder charges in connection with the death of his wife; Villanova history professor Mine Ener, in jail on charges of killing her young daughter, committed suicide in August.
In October, a Macon State professor was fired based on prior convictions for resisting arrest and possession of a firearm; it seems unfair as he disclosed them when he was applying for the job. [Jack Chin]
The alleged prejudicial nature of a prosecutor's 20-minute trial re-enactment of a grisly stabbing scene, complete with blood-soaked props, is at issue on appeal in a Texas homicide case. The defense attorney argues that the prosecutor, who portrayed the victim in the skit, sacrificed the defendant's right to a fair trial "on the altar of high drama." More ... [Mark Godsey]
Vikramditya S. Khanna of Boston University School of Law writes in the Spring issue of Regulation that "The recent spate of alleged corporate fraud has led to calls for new corporate crime legislation. Interestingly, there are already many such laws; before the passage of the Sarbanes-Oxley Act in 2002, some 300,000 federal corporate criminal offenses were already on the books. How did so much corporate crime legislation get enacted, given the lobbying strength of corporate interests?" The article, Politics and Corporate Crime Legislation, is available here. 300,000 corporate criminal offenses--simply amazing.
UPDATE: Professor Stuart Green in a comment to this post calls the 300,000 figure a likely "urban myth." This claim is supported by the site overcriminalized.com, which cites a 1998 ABA report identifying a mere 3,000 federal crimes in Appendix C. Jack Chin