November 27, 2004
CrimProf Blog Professor Spotlight: Stephanos Bibas
"I was born in New York, the oldest of three children, and spent my summers growing up working in Dad's restaurants (like every other Greek-American kid, it seems). Starting in high school, I became very involved in debate and public speaking and enjoyed constructing and analyzing arguments. I continued to develop my public speaking/debate skills through Parliamentary Debate at Columbia University, which proved to be a rewarding experience in many ways. I took these skills with me to Oxford University where I earned my Masters in jurisprudence and a 1st place Speaker Award in the World Debate Championships. It was throughout college that I started thinking about teaching law. But, since I had no lawyers in my family, it took me a while to figure out what kind of law I would want to do.
I headed off to law school at Yale where I was the Symposium Editor for the Yale Law Journal and very involved in Moot Court. I decided to clerk directly out of law school in the U.S. Court of Appeals for the Fifth Circuit, but after two years, I moved from Dallas to Washington, D.C. to become a litigation associate at Covington & Burling. I litigated predominately white-collar criminal defense, appeals, First Amendment, employment discrimination, toxic torts, and insurance cases. But after a few years with the firm, I didn't let the chance to clerk for Justice Kennedy of the US Supreme Court pass me by.
After clerking for Justice Kennedy, I went off to the U.S. Attorney's Office for the Southern District of New York to gain some trial experience and become a real lawyer. And it was there that I discovered I loved criminal law. The human drama, the fast-paced excitement, the morality play, and the tragedies in victims' and defendants' lives all fascinated me.
There, I saw a lot of things that professors and appellate judges missed. Litigation on the ground looks a lot different from litigation viewed from the ivory tower. The parties are most certainly not fully informed, rational actors. Poverty, variable lawyer quality, intelligence, and myriad other factors influenced the way cases came out. And very few cases involved trials; most of the action was in charging, plea bargaining, and sentencing. The process of plea bargaining, moreover, looked a lot different from the abstract models that economists hypothesized.
When I left prosecuting and went to Yale for a research fellowship, to prepare for the teaching market, I began writing my first article about Apprendi v. New Jersey and all of these ideas began to jell. I saw that everyone had been proposing and analyzing rules suited for an ideal world of jury trials, in part because cases that are tried are the ones that are appealed and result in appellate precedents. But in the real world of guilty pleas, where 95% of cases are plea-bargained, these rules looked very different. So that's how I started to focus on the rules of charging, plea bargaining, and sentencing, examining how the actors used their power to manipulate these rules to serve their interests."
For a list of Bibas' forthcoming articles and published articles with links, click here.
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.
Ninth Circuit Holds That Search Incident to Arrest May Take Place Before Actual Arrest
Last week, the Ninth Circuit held in U.S. v. Smith that an officer may proceed to search a suspect incident to arrest even if the suspect is not yet under arrest, as long as the officer has the requisite probable cause to arrest the suspect when the search took place. The court stated: "A search incident to arrest need not be delayed until the arrest is effected. Rather, when an arrest follows 'quickly on the heels' of the search, it is not particularly important that the search preceded the arrest rather than vice versa. So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical." [Mark Godsey]
November 26, 2004
Drug Diversion and Recidivism
UCLA researcher David Farabee reports that drug defendants diverted from jail thanks to a 2000 ballot initiative are more likely to be rearrested for drug offenders than those who were incarcerated. More here. Meanwhile, a survey reports that a majority of Canadians support decriminalizing personal use of marijuana; 45% report using marijuana at some point in their lives. More here. [Jack Chin]
Eleventh Circuit Holds That Witness Testimony By Two-Way Video Teleconference Violates Confrontation Clause
The Eleventh Circuit ruled this week in U.S. v. Yates that witness testimony via two-way video teleconference violates the Sixth Amendment right to confrontation. In doing so, the court rejected the government's arguments that the procedure was necessary because the witnesses were "essential" to the prosecution's case, were located in Australia and thus beyond the subpoena power of the U.S., and had refused to travel to the U.S. to testify. [Mark Godsey]
DUI + Death = Murder
An Alabama man was convicted of murder for killing three people while driving drunk; he received 25 years; another Alabama man was sentenced to life. A California woman is also facing murder charges for a hit and run incident that occurred while she was allegedly drunk. It does not seem that long ago that a death during a DUI was thought of as a tragedy, but not murder. (Meanwhile, a Florida DUI prosecutor was arrested after blowing a .23; her three children were in the car, a circumstance which in that county often leads to felony charges; in October, a Sunnyvale, CA police officer was "arrested for allegedly driving under the influence of alcohol with a slew of firearms and a dead pig in his truck.") [Jack Chin]
November 25, 2004
The Amazing, Searchable, Free SSRN
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]
November 24, 2004
Get Ready For The Next Trial of the Century
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]
11-Year Old Crime Solved by Analyzing Dandruff
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]
FBI Says Number of Hate Crimes Rose in 2003
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]
November 23, 2004
California Revamping Jury Instructions in Criminal Cases
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]
Nepali Women Pardoned for Abortions
12 women in Nepal were pardoned for having had abortions; abortion was illegal until 2002. Their sentences ranged from 3 years to life. Nepal has one of the highest maternal mortality rates in Asia. Jack Chin
Can the Atkins Diet Get You Arrested?
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]
First Conviction For "Sex Tourism"
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]
Colb on Hair
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]
November 22, 2004
Death Sentence Rates and County Demographics: An Empirical Study
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]
Sri Lanka Reactivates the Death Penalty After High Court Judge's Murder
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]
November 21, 2004
Statutory Rape Victim Charged With Making False Statement
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]