November 13, 2004
U.S. Seeks Death Penalty For "Last Don"
Federal prosecutors in Brooklyn have announced that they will seek the death penalty for Bonanno Crime Family boss Joseph Massino. After the Bonanno's nearly collapsed in the 1980s following the infiltration of FBI Agent Joe Pistone, depicted in the film "Donnie Brasco," Massino orchestrated the family's comeback. In the process, he committed murder, extortion and arson--or at least a jury believed so when it convicted him of these charges and more in July.
Prior to his recent conviction, Massino had been the only head of of one of NYC's five crime families not to be under federal charges, earning him the nickname "the Last Don."
The feds will seek the death penalty specifically for Massino's role in the 1999 murder of Gerlando Sciascia, a captain in the family who worked under Massino.
For more, click here.
Secret Police (Settlements in Brutality Cases)
In Secret Police and the Mysterious Case of the Missing Tort Cases, Marc Miller of Emory and Ron Wright of Wake Forest "consider the mysteriously conflicting evidence on whether civil suits against the police can have a meaningful effect on police misconduct. . . . Legal and practical barriers to successful tort claims, joined with the near absence of successful plaintiff verdicts affirmed on appeal in reported judicial decisions, suggest that tort suits have no regular effect on police behavior. Lawyers also talk and act as if successful tort suits against the police are rare events. On the other hand, numerous news accounts describe recoveries by plaintiffs against police departments, although the stories normally do not describe the particular police misconduct at issue or the terms of any settlements. Government litigation statistics also point to a healthy number of successful tort claims against the police." The article is available here:
November 12, 2004
Online extortion rings are becoming more prevalent and capable of inflicting increasing amounts of damage. Alan Paller, of the SANS institute, a security training organization, calls this new phenomenon an "epidemic."
Card Services International, a Kentucky-based credit-card processing firm, found out the hard way. The firm received an email giving an ultimatum: "You can ignore this email and try to keep your site up, which will cost you tens of thousands of dollars ... or you can send us $10K by Western Union to make sure your site experiences no problem. If you choose not to pay for our help, then you will probably not be in business much longer, as you will be under attack each weekend for the next 20 weeks." Card Services International didn't pay the $10K ransom and, sure enough, it lost a week's worth of income before blocking the attack and prompting an FBI investigation.
Skepticism of such computer "hijackings" exists because the news of such extortion claims often comes from companies specializing in the sales of software designed to protect against such attacks. Nevertheless, some companies that are dependant on their web pages for their income, such as online gambling companies, end up bowing to the threats and making the payoffs, reluctant to take the risk.
To read more about this 21st Century crime, click here.
New Book By Economist Analyzes Costs Of Drug Prohibition
Jeffrey A. Miron, economist at Boston University, has published a new book with the Independent Institute titled DRUG WAR CRIMES: THE CONSEQUENCES OF PROHIBITION. The abstract of the book states:
"Many people believe that the huge cost of drug prohibition is an acceptable price to pay for its purported benefits—reduced drug use and associated health problems, fewer traffic and industrial accidents, and less crime and poverty. According to economist Jeffrey A. Miron, however, most of the ills typically attributed to drug consumption are due not to drugs per se but to drug prohibition. In Drug War Crimes: The Consequences of Prohibition, Miron shows that prohibition increases violence, creates new health risks for drug users, enriches criminals, and diminishing our civil liberties. Prohibition, he forcefully argues, is a poor method of reducing drug use and an inappropriate goal for government policy."
For more information on this new book, click here.
Boston Immigration/Criminal Conference
Suffolk Law School will hold a conference on Thursday, November 18, entitled The Critical Impact Of Avena On Criminal And Immigration Cases Rights and Remedies Under the Vienna Convention on Consular Relations. Details here.
Sentencing Law and Policy reports on a proposed study of capital punishment in Ohio, and on the Federal court funding crisis. White Collar Crime Prof blogs on Eliott Spitzer's investigation of the insurance industry. On the Stewart beat, Martha's requesting reimbursement of her legal bill, and Lynne finished testifying on her own behalf.
Crimprof Peter Neufeld on NPR
Cardozo professor Peter Neufeld was on NPR talking about expanding DNA databases. File here: http://www.npr.org/templates/story/story.php?storyId=4152449
November 11, 2004
The New Face of Justice--Bush Nominates Alberto Gonzales
If the Senate approves Bush's choice to replace John Ashcroft, Alberto Gonzales, the current White House legal counsel and former Bush-appointed Texas Supreme Court Justice will be the first Hispanic-American Attorney General.
Democratic Senator Charles Schumer of New York calls Gonzales "less polarizing" than Ashcroft. So far, Bush's choice seems to be receiving approval by the Democratic Party and may symbolize Bush's efforts to materialize his November 3, 2004 Election-victory speech pledge to earn the favor of those who supported Kerry in the presidential election.
For more reactions to Bush's first major post-election nomination, click here.
Defense Attorney Not Prepared For Her Own Cross-Examination?
Lynne Stewart is a prominent criminal defense attorney who represented the "Blind Shiekh" in his trial for masterminding the 1993 bombings of the WTC. During her representation of the Shiekh, she allegedly helped him send messages from prison to his followers directing them to commit additional acts of terror. She is now being prosecuted for her role in sending these messages, and the Yin Blog reports that she made the following comments on cross-examination:
"Under questioning in federal court, Lynne Stewart said violence was necessary to reverse an 'entrenched ferocious type of capitalism' that breeds sexism and racism. She said civilians must not be targeted, but left unclear what kind of violence she meant.
'I'm talking about a popular revolution,' Stewart said. 'I'm talking about institutions being changed and that will not be changed without violence.'
* * *
When U.S. Attorney Andrew Dember pressed Stewart to explain what types of institutions she believed must be attacked, Stewart said the American Revolution was accomplished through violence and that the Civil War brought about an end to slavery in the U.S.
'We're not in those times yet,' she said. 'People will make the right decision about which to attack.'
The former school teacher and librarian added, 'The New York City Board of Education could be one to attack.' The remark received chuckles around the courtroom.
Stewart said violence that harms innocent people sometimes is unavoidable, even in Iraq.
'You can't always separate out the combatants from the noncombatants,' she said."
For more, click here.
Military Tribunals Continued This Week Despite Monday's Ruling
Military tribunals in Guantanamo Bay continued this week despite Monday's ruling by a district judge in Washington D.C. that the tribunals are unlawful.
Judge James Robertson had held on Monday that the military trial of Ahmed Hamdan, who served as the Yemini driver to Osama bin Laden, could not continue until the rules of the tribunal conformed to the established code of military justice. Robertson also held, among other things, that Hamdan was entitled to a hearing to determine whether he is a prisoner of war, and further ruled that Hamdan has a right to confront the witnesses against him.
The U.S. Government continued the military trials this week, stating that it would seek a stay of Robertson's order, and that it would file an appeal in the meantime.
For more, click here.
The truth of the observation that "the wheels of justice grind slowly but they grind exceedingly fine" is proved by a spate of pardons or applications for pardons on behalf of those excecuted decades and even centuries ago. Members of Scotland's parliament are seeking a pardon for Sir William Wallace who, they observe in the understatement of the day, was treated in an "appalling way"--hung, drawn and quartered, based on suspicion of treason. 81 executed Scots witches were pardoned, leading the Mayor of Salem, Massachusetts to consider a pardon for those executed during the 1692 witch trials. Efforts to obtain pardons for soldiers from Ireland, Scotland,and Canada executed during World War I are under consideration; the third strike for one Irish enlistee executed by the British Army was failing to put on his hat. New Zealand pardoned such soldiers a few years ago. Here's a group working on this issue.
Of course, there are posthumous pardons for non-capital cases, including Lenny Bruce's 2003 pardon for an obscenity conviction, President Clinton's pardon of Henry O. Flipper, the first African American West Point graduate, and Georgia's 1986 pardon of Leo Frank, lynched in 1915. Senators McCain, Hatch and Kennedy, among others, are currently seeking a pardon for fighter Jack Johnson, who was convicted of a Mann Act violation.
It is inspiring to see people who can't just overlook what they perceive to be injustice.
Hernandez Conference at U Houston
On November 19, the University of Houston Law Center will host a conference on the 50th Anniversary of the landmark jury selection case Hernandez v. Texas. It looks like it will be great; "conference participants will include Richard Delgado (Pittsburgh), George Martinez (SMU), Ian Haney-Lopez (Boalt Hall), Kevin Johnson (UC-Davis), Laura Gomez (UCLA), Juan Perea (Florida), Steven Wilson ( Prairie View A&M ), Thomas Russell (University of Denver), Neil Foley (University of Texas), Clare Sheridan (University of California, Berkeley), Sandra Guerra Thompson (Law, University of Houston), and Amilcar Shabazz (University of Alabama)." Details here.
November 10, 2004
Lawrence v. Texas and the Limits of the Criminal Law
Adil Ahmad Haque of Yale has posted an interesting working paper on SSRN dealing with Lawrence v. Texas and proportionality jurisprudence under the Eighth Amendment. The abstract of the paper, titled "Lawrence v. Texas and the Limits of the Criminal Law" states:
"This article looks to the Supreme Court's proportionality jurisprudence under the Eighth Amendment to substantiate four claims. The first claim is that the Lawrence Court was correct to hold that the enforcement of popular morality as such does not constitute a legitimate state interest in the context of criminal punishment. The second claim is that even if Lawrence is read to apply only rational basis scrutiny to laws regulating sexual intimacy, the Court has provided techniques by which to dismiss minimal and speculative harms as rationalizations for criminalization and punishment. The third claim of the article is that the Eighth Amendment provides an independent source of substantive limitations on the scope of the criminal law, alongside and in support of liberty and privacy concerns. The fourth claim is that important constitutional values, including the viability of proportionality review itself, would be compromised by endorsement of the enforcement of popular morality as an acceptable goal of punishment independent of retributive and consequentialist principles. To support these claims the article offers an original interpretation and application of the Court's Eighth Amendment cases, engages with objections to that line of cases by Justice Antonin Scalia, and refutes new and seemingly compelling arguments in favor of legal moralism emerging from the expressive theory of criminal law."
To get the paper, click here.
Lawsuit over Mob/FBI Frameup
The Associated Press reports that a man who died in prison after being framed by mobsters who were FBI informants has been posthumously exonerated by the Massachusetts courts. http://www.nytimes.com/2004/11/05/national/05mob.html
Judge Nancy Gertner of the District of Massachusetts recently ruled that a lawsuit against the United States based on the frame up may proceed. Opinion here:http://pacer.mad.uscourts.gov/dc/opinions/gertner/pdf/limonememosept04.pdf
Supreme Court Hears Two Important Criminal Cases Today
The Supreme Court will hear oral argument today in two important criminal cases.
In Illinois v. Caballes, a police officer used a narcotics canine during a routine traffic stop for speeding. When the canine alerted to the presence of drugs, the driver was arrested. At issue is whether reasonable suspicion is necessary before an officer may employ a canine sniff during a routine traffic stop. For more click here.
In Goughnour v. Payton, the question presented is: "Did the 9th Circuit violate 28 U.S.C. 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California’s "catch-all" mitigation instruction in capital cases is constitutional as applied to post-crime evidence in mitigation?" For more details, click here.
The Washington Post reports that a Virginia teenager actually convicted of making false accusations was vindicated when DNA tests and a videotape proved she had been raped by her stepfather, just as she claimed. (The girl's mother then killed her husband as he slept, pleaded guilty to manslaughter, and, with the consent of the prosecution, was sentenced to time served.)
November 9, 2004
The Old "Phony Release Order" Bit
The Smoking Gun reports on an Indiana inmate who created phony bail orders in a bid for early release; ironically, the underlying criminal charge was forgery. An Arkansas inmate succeeded with the same trick, as did a computer-savvy Rhode Island prisoner. It works in India too. And a judge and other officials in New Jersey pulled a similar stunt to help an inmate attend his father's funeral. But in my former home town of Cincinnati, we don't put up with that stuff; Maryland authorities also saw through a similar ruse.
Is it just me or is the frequency of this litigation strategy surprising? Thankfully, a California case makes clear that this sort of thing is illegal. See People v. Gaul-Alexander, 38 Cal.Rptr.2d 176 (Cal.App. 5 Dist.,1995).
A Non-DNA Exoneration
The Associated Press reports that an inmate who served 20 years of a life sentence was exonerated when the complainants, who had been six and four at the time they testified, revealed that they had been coached by a relative to offer false testimony. http://www.thebostonchannel.com/news/3892857/detail.html
Another blog reports that the case was prosecuted by the now-governor of North Carolina--although prosecutorial misconduct does not seem to loom large in the case.
As is so often the case, there is an article on SSRN offering insight into the general phenomenon: See Schuman, John Philippe, Bala, Nicholas C. and Lee, Kang, "Developmentally Appropriate Questions for Child Witnesses" Queen's Law Journal, Vol. 25, Pp. 251-304, 1999 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=198969
And here's an alleged exonerating DNA test of an Israeli inmate of a rape charge; he had previously pleaded guilty to an earlier rape.
Juvenile Death Penalty
Jeffrey Fagan at Columbia and Valerie West at NYU published "The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms" forthcoming in the Journal of Criminal Law and Criminology. Their article "presents results of analyses of empirical data on the use of the death penalty for adolescent homicide offenders in state courts in the U.S. since 1990. The data show that, since 1994, when death sentences for juvenile offenders peaked, juvenile death sentences have declined significantly." The paper, which was introduced into the record in the pending Supreme Court case of Roper v. Simmons, is available on line at http://papers.ssrn.com/paper.taf?abstract_id=602621 [Jack Chin]
Supreme Court Decision in Leocal
Doug Berman blogs the Leocal decision, holding that DUI is not a "crime of violence" for purposes of deportation.