December 4, 2004
Richmond Times Dispatch Series on Executions
Reporter Frank Green has written an interesting series taking an historical look at Virginia's death penalty, including an article on the Martinsville Seven, the racial aspect of capital punishment, and a 1931 rape trial. [Jack Chin]
CrimProf Blog Professor Spotlight: Aya Gruber
"I am a native of Miami, FL, so I was very excited to join the FIU College of Law as a member of the founding faculty in 2002. I received my B.A. in Philosophy summa cum laude from the University of California at Berkeley in 1992, and my J.D. magna cum laude from Harvard Law School in 1997. During law school, I was an editor for the Women’s and International Law Journals, a member of the trial advocacy team, founder of the Interracial Law Student Association, and a research assistant for Professor Alan Dershowitz during the O.J. Simpson trial.
After graduation from law school, I clerked for the Honorable James Lawrence King, on the U.S. District Court for the Southern District of Florida and then spent a year doing free-lance travel journalism in China, Laos, Vietnam, Cambodia, Thailand, Malaysia, Indonesia, and India. Before coming to FIU, I was a felony trial attorney with the Public Defender Service in Washington, D.C. and Federal Public Defender in Miami. I served as defense counsel in a number of criminal cases ranging from first degree murder to drug distribution, securing approximately an 80% acquittal rate.
My scholarship involves criminal law and procedure both substantively and with ancillary focuses on race, civil rights, and national security. One overarching project of mine is to delve into the transactional nature of criminal incidents, focusing specifically on the culpability of both those deemed victims and those labeled criminals. In addition, I have recently authored an article examining race and gender anti-subordination projects in the post-intersectionality movement for the LatCrit IX symposium. The article I am currently working on discusses the continued relevance of cautionary invocations of the Japanese internment despite the civil libertarian “success” of the Hamdi decision. This project is very close to my heart, as my mother and her family were interned during World War II. (To read abstracts of Gruber's other articles click here.)
I currently teach Criminal Law, Criminal Procedure, and Advanced Criminal Procedure. I am a frequent public speaker on civil liberties and criminal law and have done commentary for Fox News International, PBS, the Miami Herald, and Ft. Lauderdale Sun Sentinel. In my spare time, I enjoy writing music and singing and playing guitar at venues in South Florida with my band, FALLZ."
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.
New Article Spotlight: Does the Constitution Require the Feds to Pay For Homeland Security?
In our federal system of government, who is responsible for securing the homeland? Although Congress has made available to states and cities some funding for overtime and equipment, it has not taken responsibility for covering all of the security costs incurred locally. While deploying some federal personnel for domestic security, the Executive branch relies largely on state and local officials for the necessary manpower. . . . Ratified in an age of insecurity, the Constitution of the United States provides clear guidance on the issue of responsibility for homeland security. The key is the largely forgotten - or lost - Protection Clause of Article IV. The Protection Clause requires the national government to safeguard states and their cities from attack, either by deploying federal personnel to provide the necessary security or paying the costs of security measures implemented locally. . . . In fulfilling its security obligations under the Protection Clause, the national government may enlist the assistance of state and local personnel so long as it pays the costs of doing so.
Paper here. [Jack Chin]
December 3, 2004
Rape at UVA
Here's an article about rape at the University of Virginia reporting that some students found guilty of rape receive such punishments as being banned from the dining hall and gym. [Jack Chin]
Talkleft has a story on demotion of two Dallas police supervisors in the wake of a 2001 drug-frame scandal; informants, paid by the quantity of drugs recovered as a result of their tips, manufactured fake drugs, planted them on innocent people, and turned them in. The report of the investigation is available here. Coincidentally, Sentencing Law and Policy has an interesting post about the problems with quantity based sentencing in drug cases. Criminal Law has a series of posts about a week in the life of a criminal defense lawyer--this will bring back memories for about half of us CrimProfs. Crime and Federalism has a nice series on pay for Massachusetts panel attorneys--follow-ups here and here. WhiteCollarCrimeProf has a post on an SEC civil enforcement action against KMart. [Jack Chin]
U.S. Argues Evidence Obtained Through Torture Can Be Used in Military Tribunals
In a hearing in federal court in a suit brought by 550 prisoners held in Guantanamo Bay, Cuba, challenging their detentions by the U.S. in its "War on Terror," U.S. District Judge Richard J. Leon asked if "a detention would be illegal if it were based solely on evidence gathered by torture, because 'torture is illegal. We all know that.' Principal Deputy Associate Attorney General Brian Boyle replied that if the military's combatant status review tribunals (or CSRTs) 'determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.'
Leon asked if there were any restrictions on using evidence produced by torture.
Boyle replied the United States would never adopt a policy that would have barred it from acting on evidence that could have prevented the September 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power." More . . . [Mark Godsey]
Killer Captured After Leaving Parole Information at Crime Scene
A burglar, paroled from prison after serving time for first-degree robbery, fatally stabbed a Queens man and injured his son on December 1. But fortunately, he didn't evade the police for long. The suspect, Albert Massie of Brooklyn, apparently dropped an envelope at the crime scene containing his parole information--including his name, address, and time and day of his next parole appointment. So when Massie arrived at his parole appointment the next day, he was immediately arrested. More... [Mark Godsey]
Evidence in Assault of Cop Suppressed for "Knock and Announce" Violation
Judge Michael Wilkinson of Maricopa County Superior Court in Arizona suppressed evidence offered to prove Michael Wayne Coffelt, an alleged gang member, assaulted an officer during a raid on a Hell's Angels Clubhouse. In July 2003, at around 5 a.m., as part of a multiagency sweep across Arizona, agents knocked on the door of the house where Coffelt was, announced their presence, and waited only 6 seconds before using a diversionary grenade and breaking a window to enter the premises. Coffelt then arrived at the door with a handgun and aimed it at the officer, who shot Coffelt. The judge determined that the agents' behavior violated the Fourth Amendment knock and announce rule, and that Coffelt's reaction of aiming a handgun at the officer was reasonable given the agents' behavior and the time of day. The full story... [Mark Godsey]
Ohio Senate Blocks Death Study
Republican Senators in Ohio blocked an amendment which would have authorized a study of the state's death penalty. The study had previously been authorized by the house. There are 204 people on the state's death row. [Jack Chin]
ACLU Seeks Police Files on Activist Groups
According to NPR, the American Civil Liberties Union is trying to get confidential documents of Joint Terrorism Task Forces around the country. The group thinks law enforcement officers are using the resources of the task forces to spy on protest groups in ways that would have otherwise been forbidden. To listen to the story, click here. [Mark Godsey]
December 2, 2004
Prosecutors and Defendants in the News
Hawaii prosecutor Russell Uehara was prosecuting a homicide suspect who claimed the shooting was accidental--the gun unexpectedly went off. Uehara hired a firearms expert with his own money whose analysis supported the conclusion that the shooting was an accident. Accordingly, the defendant was allowed to plead guilty with an 8 year sentence instead of 20. The case is back in the news because the victim's family was not informed about the plea bargain, in violation of the victims' rights law.
Meanwhile, in New Orleans, a prosecutor was charged with rape and fired after allegedly luring a defendant to his private office on the presense that he could get her cleared of pending traffic charges. [Jack Chin].
Innocence Project of the San Diego District Attorney's Office
In 2000, the San Diego district attorney started reviewing pre-DNA convictions, particularly of those defendants who maintained their innocence, to ensure that justice had been done. 766 cases were reviewed (in both homicide and other cases); in cases where DNA evidence might have made a difference, and the evidence was available, inmates were asked whether they wanted a test done. So far, the handful of tests actually performed have come back positive, or the inmate has declined the offer. Indeed, when a former CHP officer in for a murder he claimed he didn't commit nevertheless declined to have his DNA tested pursuant to the program, the refusal was used as a basis to deny parole. [Jack Chin]
Drunk Pilot Convicted of Reckless Endangerment After Drunk Driving Charges Thrown Out: Legislators Move to Enact Drunk-Flying Law
According to MSNBC.com: "A drunken pilot who buzzed his single-engine plane near a nuclear power plant and crossed the flight paths of six airliners was sentenced to six to 23 months in prison. John V. Salamone had a blood alcohol level of 0.15 percent when he landed after an erratic, four-hour flight on Jan. 15 over the Philadelphia region, authorities said. The legal limit for drivers in Pennsylvania is 0.08 percent. But Pennsylvania doesn’t have laws concerning drunken flying, and drunken driving charges against Salamone were thrown out. Instead, Salamone was convicted of risking a catastrophe and reckless endangerment.
After the case garnered attention, lawmakers tried to rectify the legal loophole by passing a bill — now awaiting the governor’s signature — that makes flying drunk over the state a crime. More . . . [Mark Godsey]
NIJ Reports: Violence Against Women, Parental Consent to Search
Click here for a new research report on risk factors for violence against women. And here is a report on a program where parents were asked to consent to searches of homes where juveniles were suspected of having guns. [Jack Chin]
New Article Spotlight: The Civilization of the Criminal Law
This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to reduce it.
The ultimate objective of this article is to present a defense of a prevention system as a replacement for - rather than (as with sexual predator statutes)an addition to - our current criminal justice system. Such a defense of a purely preventive regime has been rare in the legal literature since the 1960s, when just deserts philosophy became popular and preventive approaches fell into disrepute. Since then, a number of conceptual and empirical advances have made the issue even more complex. The case for a preventive regime nonetheless deserves serious consideration in the twenty-first century, as an increasing number of jurisdictions adopt harsh determinate sentencing based on desert principles, and in the wake of the American Law Institute's recent announcement that its planned revision of the Model Penal Code will forsake the original Code's focus on reform of prisoners and instead endorse a just deserts approach to sentencing.
The first part of the article looks at jurisprudential objections to a prevention regime, which all center on its perceived failure to do "justice." It contends that such a regime would neither slight human dignity nor undermine the general deterrence and character-shaping goals of the criminal law. The second part examines concerns about the feasibility of a preventive system, including questions about the accuracy of predictions, the efficacy of treatment, and the costs of a reform-oriented justice system. It concludes that these concerns are overstated, and in any event are less serious than the practical problems that afflict the punishment model. The third part describes one further reason for favoring prevention over traditional punishment: a preventive regime is much better at assimilating the proliferation of scientific findings that call into question humans' ability to control their actions, which is the central premise of a punishment system based on desert. The view taken in this article is exploratory, however. For a number of reasons, legal and sociological, one might be ambivalent about instituting a full-blown preventive regime, at least in the immediate future. Accordingly, the conclusion to the article suggests a transitional compromise, which maintains culpability as the threshold for government intervention, and reserves application of the preventive model for disposition, in what amounts to a modern version of indeterminate sentencing.
To obtain the full draft, click here. [Mark Godsey]
Students in Tulane Law Clinic Win Big Case in LA Supreme Court
In an opinion issued yesterday, the Louisiana Supreme Court handed a victory to the Tulane Law Clinic and to mentally ill criminal defendants throughout Louisiana. Relying on positions briefed and argued by student lawyers, under the direction of CrimProf Pamela R. Metzger, the Louisiana Supreme Court struck down La.C.Cr.P. 648(B)(2), a statute that applies to criminal defendants who (a) are permanently incompetent to stand trial; and, (b) do not pose a danger to themselves or others. The challenged law placed those defendants on probation for a period of a time that could extend up to the maximum punishment that could have been imposed on a competent defendant who was found guilty of the underlying crime.
The Tulane Criminal Clinic has represented the defendant, Ms. Denson, since her initial arrest. She was quickly adjudged permanently incompent to stand trial, and not dangerous either to herself or others. Nevertheless, Ms. Denson spent three years on probation and approximately two years in the general population of a women's prison, because there was no room for her in an appropriate psychiatric facility. The opinion can be found here.
The next step for Ms. Denson and her student lawyers
illustrates the intradisciplinary nature of the work performed in
Tulane's legal clinics, work that builds off of the theoretical work of
many fine CrimProf scholars. Students in Tulane's Legislation Clinic
are drafting a proposal for legislation that would meet the needs of
people like Ms. Denson. And, the Tulane Civil Clinic is evaluating the
viability of a lawsuit challenging the State's practice of using jails
to house mentally ill people when the State Forensic Hospital is full. [Mark Godsey]
Amnesty International Seeks Taser Suspension
On Tuesday November 30, Amnesty International requested suspended use of tasers by U.S. law enforcement officers, as well as an independent inquiry into the electric-shock weapons. The 50,000 volt shock caused by the weapon causes people contacted by the shock to lose control of their muscles. The device is supposed to be used as an alternative to deadly force, but according to Amnesty International, tasers have contributed to more than 70 deaths over the past four years (in U.S. and Canada combined) and have been used by U.S. law enforcement officers on unarmed people against whom the use of lethal force would never be justified. Amnesty International also reports that the devices have been used against children under the age of 16, the mentally ill, and the elderly. More... [Mark Godsey]
December 1, 2004
Check out the post on overcriminalization at White Collar Crime Prof Blog. Sentencing Law and Policy has an interesting post on race and sex discrimination in sentencing; TalkLeft also blogs the topic. Sentencing Law also has a post on a fascinating Ohio case in which the state supreme court reversed a death sentence for lack of jurisdiction, in that the murder at issue took place in Pennsylvania. [Jack Chin]
New Article Spotlight: Rethinking Miranda: Custodial Interrogation as a Fourth Amendment Search and Seizure
Many problems in the interpretation of Miranda v Arizona can be solved by recognizing that Miranda is actually a Fourth Amendment case dressed-up in Fifth Amendment clothes. Miranda does more than protect a suspect from coercion or compulsion; the right to remain silent reflects an autonomy interest better expressed through the 4th Amendment. Fourth Amendment values are reflected in the warnings themselves, the remedy for violations, and even in the Miranda exceptions. And contrary to Chavez v Martinez, the 4th Amendment views a Miranda violation as a constitutional violation that occurs in the interrogation room itself.
For the full draft, click here. [Mark Godsey]
A North Carolina man who served 14 years for sexual abuse was released when the victims recanted; a newspaper re-interviewed witnesses who said they had not been molested. In Brooklyn, a murder defendant won his case during jury selection when his lawyer, interviewing a potential alibi witness, got a confession instead. A Toledo man accused of kidnapping and fondling a hitchhiker was cleared when the complainant admitted fabricating the charges; the defendant was identified after surveillance tapes were broadcast on television, but when his accuser was confronted with receipts showing the defendant was shopping during the alleged kidnapping, she admitted making up the story. A California man filed suit seeking compensation for being imprisoned for 24 years for a murder he did not commit. Two Federal Protective Service officers in San Francisco pleaded guilty to falsely accusing a motorist of assault; a third officer is charged with helping conceal the crime. A Virginia man is appealing a ruling that a malpractice action against his defense attorney is barred by receiving $750K in government compensation for an 11-year stint for a crime he didn't commit. A North Carolina judge stayed an execution scheduled for Friday to give time to investigate a claim of innocence; the state is appealing. [Update: The state Supreme Court declined to lift the stay]. [Jack Chin]