November 17, 2004
In Moscow, City Council Employs Regular Citizens to Fight Crime
The Washington Post reports that the Moscow city council has appropriated $3 million dollars to create "Public Order Councils" in the city's 676 subdistricts. The Public Order Councils consists of regular citiens who are entrusted with the job of fighting crime in their neighborhoods.
“Without the help of the citizens it is impossible to have security,” said Inna Svyatenko, the bill’s legislative sponsor. “And our goal is to promote the people’s participation.”
But critics say this effort is an "attempt to return to Soviet-style monitoring of the citizenry and the resurrection of the feared stukach, or informer, in Russian life." Says Lev Ponomarev, executive director of the All-Russia Public Movement for Human Rights. “It’s very Soviet, and it exploits the fact that some people will inform on their neighbors with pleasure.”
To see the article, click here.
2004 Marijuana Ballot Initiatives
Several marijuana initiatives passed in the 2004 election. Montana voted to allow medical marijuana; now 3/4ths of the Western states have such laws; Oregon rejected an initiative. Voters in Ann Arbor, MI, Columbia, MO and various localities in Massachusetts also supported decriminalization or other reform, but those measures are either expressly advisory or of questionable enforceability. Jack Chin
November 16, 2004
Tenth Circuit Extends Buie "Protective Sweeps" To Areas Outside of House and to Include Preventative Detentions of Individuals Discovered During Sweep
In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court authorized the police practice of making a "protective sweep" of a home in which the police arrest a defendant in order to protect the police against the possibility of the arrestee's cohorts staging an ambush. In U.S. v. Maddox, issued yesterday, the U.S. Court of Appeals for the Tenth Circuit applied the rationale of Buie to authorize protective sweeps of the area outside of the home, and also authorized the detention of individuals found outside the home during such a sweep for whom the officers have formed a reasonable suspicion might present a danger to them.
The defendant in the case, Maddox, had been found outside in the carport while the police arrested the target defendant in the home. The police detained Maddox while the arrest of the target defendant was being made, and then arrested him when he later admitted that he possessed a firearm (he had previously been convicted of a felony) and narcotics. The court found that the officers had a reasonable suspicion that Maddox was dangerous, due to his location close to the place of arrest and his "erratic" behavior. The court further held that the fact that Maddox was found outside the home during an in-home arrest did not render the "officer safety" rationale of Buie inapplicable. Thus, the area outside of a home, the court held, can fall within the "arrest scene" discussed in Buie in which sweeps are authorized.
White Collar Crime Prof blogs about Senate hearings on the insurance industry, and the growing problem of identity theft from information in online court records. Sentencing Law and Policy has a collection of written testimony before the Sentencing Commission. Jack Chin
Brits To Experiment With Trials on the Telly
According to Law.com, the British public will have a chance to decide whether it wants its trials to be televised like in the U.S. The Lord Chancellor, Lord Falconer, recently issued a public consultation paper on the matter, and announced a practice run of video recording of trials. Falconer noted, however, that he did not want the televised trials to turn into "U.S-style media circuses."
For more, click here.
U. of Texas Capital Punishment Clinic Wins Second Case This Year at U.S. Supreme Court
A press release issued by the University of Texas School of Law yesterday states:
"Today the Capital Punishment Clinic at The University of Texas School of Law won its second U.S. Supreme Court case in five months. The U.S. Supreme Court issued a per curiam opinion reversing the death sentence of Laroyce Smith in Smith v. Texas, No. 04-5323. In the opinion, the Court found that Smith's jury did not have an adequate vehicle for considering Smith's mitigating evidence, including evidence of organic learning disabilities and low IQ.
'It's extremely rare for the Court to issue such an opinion without the benefit of argument,' said Professor Jordan Steiker who represented Smith in the Court and works with Professor Rob Owen as a faculty advisor to the clinic. 'The opinion is important because it makes clear that death sentences must reflect a reasoned moral judgment that the defendant deserves to die. Unfortunately, in Smith's case, the jury was never asked whether death was the appropriate punishment,' Steiker said. Professor Owen added that 'it's gratifying after so many years of challenging the patent defects of the former Texas scheme for the United States Supreme Court to forcefully insist on fairness in capital sentencing.'
Capital punishment clinic students and professors won their first case at the U.S. Supreme Court this May in Tennard v. Dretke, No. 02-10038.
In Tennard v. Dretke, the Court ruled in a 6-3 decision that a death-sentenced inmate could continue with his claim that his jury was unable to give effect to evidence of his 67 IQ as a mitigating factor in the penalty phase of a capital trial. Before 1991, Texas juries were not directly asked to consider mitigating evidence in deciding whether a defendant should live or die.
UT Law professors Rob Owen and Jordan Steiker along with law students took a leading role in that Texas death penalty case, challenging the fairness of Texas death row defendant Robert Tennard’s 1986 trial. Owen, an adjunct professor and director of the Capital Punishment Clinic, argued before the Supreme Court on March 22 that the punishment phase jury instructions prevented the jury from giving meaningful consideration to Tennard’s extremely low IQ of 67. Had the jurors been properly instructed, he and his co-counsel Steiker contended, they might have concluded that Tennard did not deserve to die.
Six law students: Kimberly Carter, Leslie Conant Thorne, Heather Fraley, Haverly Rauen, Amanda Tyler, and Mitria Wilson conducted legal research and drafted arguments for Tennard’s opening brief filed last December in the Supreme Court. Richard Burr, a nationally respected capital defense specialist, joined Steiker and Owen in representing Tennard.
The clinic has been involved in several other Supreme Court cases since Owen and Steiker arrived at UT in 1989 and 1990, respectively."
Confession of Seven Year Old Questioned
A newspaper report discusses questions raised about a 7 year old in Pennsylvania who allegedly confessed to setting a fatal fire. Relatives claim that the boy was miles away when the fire started, that the victim was burining trash in his yard before the house fire started, that the police offered the child treats to confess, and falsely told him that a videotape showed him starting the fire. Jack Chin
Forensic Scandal Brewing in Tennessee?
First degree murder charges against a mother accused of killing her daughter were dropped in Franklin County Tennessee. The mother was believed to have administered a fatal dose of drugs to her disabled teenager, but the toxicological tests were performed by "forensic pathologist Charles Harlan, a former Metro and state medical examiner who is under a threat of having his medical license revoked by state officials who say he has conducted questionable autopsies." Jack Chin
November 15, 2004
AG Nominee Gonzales' Texas Clemency Memos To Governor Bush
An article that appeared last year in the Atlantic Monthly about clemency memos written by Alberto R. Gonzales to George Bush while he was Governor of Texas is of renewed importance after Bush last week nominated Gonzales to take Ashcroft's post as AG.
The article deals with the 57 clemency memos that Gonzales wrote to Bush while Gonzales served as Bush' legal counsel in Texas. The author, Alan Berlow, obtained the confidential memos through Texas' public information laws, and found that they ''repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.''
For example, Berlow cited the case of Terry Washington, a mentally retarded man who was executed for the murder of a restaurant employee. Washington's jury was not informed of the degree of his retardation or of the severe abuse he received growing up. Washington's lawyers did not retain mental health experts for Washington's defense.
While Washington's 30-page clemency petition focused on his retardation and his ineffective counsel, Gonzales presented Bush instead with a three-page document that mentioned Washington's petition only to state that it had been denied by the state Board of Pardons and Paroles.
In another case, Gonzales failed to apprise Bush that the State's key witness had recanted, and also failed to mention that law enforcement officials had lied at trial about the favorable deal they had given another witness in exchange for him implicating the defendant.
For more, click here.
Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors
In the above-titled article to be published in the Journal of Law and Economics, Cheryl X. Long, economics professor at Colgate, and Richard T. Boylan, economics professor at Alabama, argue that the ability of a defendant to obtain a favorable plea bargain in a federal case is dependent in part on the salary offered in that locale to attorneys in private law firms. The higher the pay differential between what an AUSA makes in her current job compared to what she could make in a private firm in her locale, the more likely it is that she became an AUSA primarily to obtain some quick trial experience before entering a high-paying big firm job. Thus, such an AUSA is less likely to cut favorable plea deals so that more of her cases will go to trial.
Their conclusion is backed up by emperical research showing a direct correlation between the salary in big firms in a given locale, and the percentage of cases that go to trial in that locale.
To get a copy of the article, click here.
Death Sentences At 30-Year Low
The number of prisoners in the United States on death row dropped for the third consecutive year in 2003, resulting in the lowest total number of death row inmates in 30 years, according to a report by the Justice Department's Bureau of Justice Statistics.
Only 144 defendants sentenced in 2003 were sentenced to death, well below the average of 297 between 1994 and 2000.
Robin M. Maher,
director of the American Bar Association’s Death Penalty Representation
Project, told the Washington Post that, “The declining figures probably indicate a loss of
confidence in the fairness and reliability of the death penalty.” Maher added that “juries overall . . . seem more
cautious about imposing a death sentence,” perhaps because of the recent DNA exonerations that have exposed flaws in the criminal justice system.
For more, click here.
Utah is considering controlling prison population by incarcerating fewer drug offenders. The Miami Herald editorialized in favor of automatic restoration of voting rights for released prisoners; at current rates of disposition under the existing case-by-case-hearing approach, the existing backlog will take 30 years to clear. Jack Chin
A British convict was exonerated 50 years after the crime; an eyewitness recanted. In October, a Pennsylvania man was sentenced to 5 to 10 years in prison in spite of a recantation by the complainant at sentencing; the issue will evidently be revisited in a post-conviction hearing. The Washington Post editorializes about a settlement in a case where three Arizona women were arrested after America's Most Wanted showed video of them allegedly using the ATM card of a recently murdered person; they supposedly confessed, but were released after one of the arrestee's parents obtained bank records showing they had used their own ATM card, and therefore there was no evidence connecting them to the crime. The Virginian Pilot profiles the late Mary Jane Burton, whose careful preservation of evidence while working with the Virginia Division of Forensic Science led to the exoneration of three long-term convicts, when scientific tests were developed that could prove their innocence. Peter Rose, a California man convicted of raping a 13 year old in 1994 was released after being exonerated by a DNA test; the San Diego Union Tribune posted the first of a two-part story on a similar case. The New York Times reports on a juror's effort effort to overturn a conviction she now believes was mistaken, and on Robert McLaughlin's struggle to adjust, two decades after spending 6 years in prison for a crime he didn't commit. The St. Petersburg Times has a similar story on another former inmate. A Louisiana man, exonerated by DNA in a 1987 rape, pleaded guilty to a 1985 rape but the plea bargain provides he will serve no time, getting credit for the 17 years he served on the vacated conviction. Jack Chin
November 14, 2004
Possibly Useful SPAM
If you don't feel you are getting enough spam, you can sign up for email updates from the Bureau of Justice Statistics, the National Criminal Justice Reference Serviceand the National Law Enforcement and Corrections Technology Center. Their emails are full of interesting news and announcements of publications and events. Jack Chin