December 11, 2004
Indiana: Fetal Drug Delivery Bill
Two Indiana legislators plan to introduce a bill criminalizing mothers who take drugs and thereby deliver them to their fetuses. Under current law, infants born with drugs in their system can be removed, but no criminal charges are possible. [Jack Chin]
Supreme Court Grants Cert. in Two Criminal Cases
In Medellin v. Dretke, No. 04-5928, the question presented is: "In a federal habeascorpus proceeding filed by a Mexican citizen who was convicted of capital murder by a Texas state court, did the Fifth Circuit err in holding that the petitioner's claim, based on the state's conceded failure to notify him of his right under the Vienna Convention to contact the Mexican consul, was procedurally defaulted, and that even if the claim were not procedurally defaulted, the Vienna Convention does not confer an individually enforceable right?" MSNBC.com has full coverage of this case here.
In Wilkinson v. Austin, No. 04-495, the question presented is: "Did the Sixth Circuit err in holding that when prisoners have a state-created liberty interest in avoiding transfers to a super-maximum security facility, the adequacy of the procedures afforded to prisoners to be transferred is measured by the due process balancing test of Mathews v. Eldridge, rather than the more deferential test of Hewitt v. Helms?" [Mark Godsey]
CrimProf Spotlight: Tulane's Pamela Metzger
"I am the oldest of three children raised in a Reform Jewish household in Atlanta. Judaism’s emphasis on social justice and learning remains a profound influence in my life and it played a major role in my decision to pursue a career that combines rigorous scholarship with the Jewish concept of tikkun olam: repairing the world.
As an idealistic teenager, I thought that being a public defender was the noblest thing a person could do. I left Atlanta for Dartmouth College at the end of Dartmouth’s first decade of co-education. I became extremely involved in social action: I spent most of one winter camping out on the college green in a shanty town as part of a (successful) divestment campaign. I also served as a crisis intervention worker at the local battered women’s shelter. In addition, I was a Senior Fellow of the College: I got an office, a budget, and the green light for a yearlong project on feminist theory.
After college, I spent a year in Massachusetts working as the Assistant to the Chief Counsel of the Committee for Public Counsel Services, the statewide public defender organization. There, I organized training programs for lawyers on topics as diverse as representing clients with AIDS and assisting minors in obtaining judicial consent for abortions. That experience confirmed that I wanted to attend law school, so I headed off to New York University School of Law.
At NYU I found a vibrant intellectual community, filled with ‘true believers’ like me, who wanted to put theory into practice. I arrived in the midst of a support staff strike and quickly became involved with a group of progressive students who supported the workers. Later, I served on the staff of the Review of Law and Social Change and the Moot Court Board. The National Moot Court Competition convinced me (as if I’d had any doubt) that I wanted a trial practice.
Upon graduation, I went to work at the Federal Defender’s Office in New York City. My years at Federal Defenders were challenging, often heartbreaking, but wonderful. I loved my clients and I loved the work: giving voice to the poor ennobles not only the lawyer, but also the system. Still, I was frustrated by the limits necessarily imposed by the criminal defense model; I wanted an opportunity to think about, and write about, systemic problems and their potential solutions.
After a brief stint in private practice, I found my first teaching job as a visitor at Washington & Lee. There, I taught criminal procedure (bail to jail) and directed the Alderson Legal Assistance Project, a clinic serving the legal needs of women incarcerated at the federal facility in Alderson, West Virginia. However, my family and I longed for a more urban environment and one with a significant Jewish community. The challenge was finding a position that would enable me to ‘triangulate’ my work so that I could give significant attention to scholarship, teaching, and practice.
I found that position in 2001 when I joined Tulane’s law faculty as Associate Professor of Law and Director of the Criminal Law Clinic. In addition to directing the clinic, I teach an Advanced Criminal Practice seminar and Constitutional Criminal Procedure.
Tulane has offered me opportunities that other professors can only imagine. We have a unitary tenure track, so my scholarship is actively supported with both time and money. My clinical teaching support is unparalleled and our clinic’s diverse caseload continues to stretch my lawyering skills. Our two most exciting projects are (1) our developing Louisiana Supreme Court practice; and (2) our holistic representation of battered women charged with crimes. Through our Domestic Violence project, our clinic handles not only criminal cases brought against battered women, but also related civil matters. I now lecture around the country, teaching defense attorneys and prosecutors about battered women charged with crimes, and about the collateral consequences of their arrest or conviction.
Meanwhile, my scholarship continues to focus on Sixth
Amendment issues; in particular, I am engaged by the ‘disconnect’ between
constitutional doctrine and real world practices. I have just completed an article addressing ‘constitutional
cheating’ – systemic practices that ‘cheat’ the constitution by legislating
around constitutional protections, such as the Confrontation Clause and the Winship
rule. My current project critiques a
complex web of right-to-counsel doctrines which give prosecutors control over
defendants’ right to counsel." (For publications, 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.
ABA Innocence Committee Reports
Led by Southwestern CrimProf Myrna Raeder and Case Western CrimProf Paul Giannelli, the ABA Ad Hoc Committee to Ensure the Integrity of the Criminal Process has written a number of recommendations and reports, some of which have been made official ABA policy by the ABA House of Delegates, including recommendations regarding crime laboratories, eyewitness identification, investigative procedures, standards for prosecutors, and false confessions. The committee included prosecutors, defense lawyers, judges, scientists and CrimProfs Andy Taslitz of Howard, Vic Streib of Ohio Northern and Jack Chin of Arizona. Additional recommendations are pending. [Jack Chin]
Washington Chief Justice to Retry Indian Chief Hanged in 1858-UPDATED
Chief Leschi of the Nisqually tribe in Washington was hanged by state authorities in 1858 for killing a militia officer. The U.S. Army refused to do it because it believed it violated the law of war to execute a combatant for a battlefield killing. Last year, the state legislature called on the state Supreme Court to vacate the conviction, but the execution took place when Washington was a territory (and thus the conviction was technically federal), and, of course, there are standing problems with reopening a criminal case where the defendant is dead. Accordingly the Chief Justice of Washington convened a Historical Court of Justice, which will render a symbolic verdict after trial next week by state prosecutors and lawyers for the tribe. Chief Leschi's historical reputation is already rehabilitated; streets, schools and neighborhoods in Washington bear his name.
UPDATE: Not Guilty. [Jack Chin]
December 10, 2004
NY Legislature Votes to Reduce Mandatory Sentencing Under Rockefeller Drug Laws
Yesterday, New York's legislature voted to reduce the impact of some of its notorious Rockefeller drug laws. These laws, which carry mandatory minimum sentences, greatly influenced the spread of mandatory minimums across the country when they were passed more than 30 years ago. To listen to the NPR report on this issue, click here. [Mark Godsey]
Chicago Tribune Investigation Team Uncovers TX Man's Execution was Based on Faulty Forensics
Cameron Todd Willingham declared his innocence one last time before he was executed, having been convicted for starting a fire that killed his three children. In his final statement he said, "I am an innocent man, convicted of a crime I did not commit...I have been persecuted for 12 years for something I did not do." Since his execution on February 17, 2004, a Chicago Tribune investigation team uncovered that the arson theories set forth by the prosecution's winning argument have since been disproven by scientific advances.
The Chicago Tribune reports: "According to four fire experts consulted by the Tribune, the original investigation was flawed and it is even possible the fire was accidental. Before Willingham died by lethal injection on Feb. 17, Texas judges and Gov. Rick Perry turned aside a report from a prominent fire scientist questioning the conviction.
The author of the report, Gerald Hurst, reviewed additional documents, trial testimony and an hourlong videotape of the aftermath of the fire scene at the Tribune's request last month. Three other fire investigators--private consultants John Lentini and John DeHaan and Louisiana fire chief Kendall Ryland--also examined the materials for the newspaper.
'There's nothing to suggest to any reasonable arson investigator that this was an arson fire,' said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. 'It was just a fire.'"
More... [Mark Godsey]
Waiting Years for Trial
In Gwinnett County, Georgia, some defendants have spent years in jail waiting for trial. There are decent explanations for some of these cases, but it does seem excessive. [Jack Chin]
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December 9, 2004
What Percentage of Rape Accusations are False?
Several interesting articles on sexual assault. The first is by CrimProf Michelle J. Anderson of Villanova, one of the legal academy's most perceptive and prolific scholars in this area. Her latest work The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault proposes a number of reforms to make institututional discipline more efficient. (CrimProf blogged an expose of UVa's system). One startling point in the paper was that no reliable statistics exist on the frequency of false rape claims: "As a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown." (See pages 33-35). Professor Anderson's conclusion is noteworthy in light of the often repeated claim of advocates that this information is known definitively: "false accusations account for only 2% of all reported sexual assaults. This is no higher than false reports for other crimes." Although the article asserts that "no study has ever been published which sets forth an evidentiary basis for the ‘two percent false rape complaint’ thesis," even universities repeat this statistic, and it shows up in such important venues as the legislative history of VAWA. Pub. L. 102-199, S. Rep. 102-197 n.48 (Oct. 29, 1991).
The other articles in this area which caught my attention are about an Ohio case in which my co-blogger Mark Godsey is counsel. A man is serving a long sentence for rape in spite of the absence of any physical evidence connecting him to the crime. According to a Cleveland Plain Dealer editorial on Sunday supporting an expedited parole hearing, the inmate has passed a voice stress test while asserting his innocence and the victim has repeatedly failed the same test, and the victim's former boyfriend "has come forward to say she has a history of self-mutilation in attempts to gain attention." According to the paper, the victim now claims that "she actually died during the attack and was brought back to life by Snow White," which suggests she may be an unreliable reporter.
In my monitoring of this month's worth of Google News archives, I found stories about admitted or proved false rape allegations from California, Indiana, Louisiana, Michigan, New Jersey, North Carolina, two from New York, South Dakota, Tennessee, Texas, Virginia, Canada, England, New Zealand, and the Philippines; an alleged asylum fraud ring in the Washington area also employed apparently false rape claims.
There were many, many more stories about actual sex crimes, and these anecdotes hardly show that false claims are common. The stories also may suggest that law enforcement successfully identifies most false claims; here's the chapter on "Unfounded Cases and False Allegations" from the training manual Successfully Investigating Acquaintance Sexual Assault, written by the National Center for Women and Policing. However, the stories also suggest that false accusations do sometimes occur, and in the absence of any reliable information about how often, it seems that additional research would be worthwhile. [Jack Chin]
Players and Fans Charged in NBA Brawl
Five players and five fans were charged with assault and battery for their roles in the infamous brawl that took place during an NBA game in Detroit a few weeks ago. The misdemeanor charges carry up to 3 months' imprisonment and a $500 fine. One fan who was charged with felony assault for throwing a chair faces up to four years in prison. To listen to the NPR story, click here. [Mark Godsey]
Breaking Case News: Leader of Conspiracy Guilty of "Carrying" Firearm Even Though Firearm Was Located in the Car of Co-Conspirator
In U.S. v. Lindsey, decided December 2, the Tenth Circuit held that the leader of a drug trafficking conspiracy could be convicted of '"carrying" a firearm in violation of 18 U.S.C. 924(c), even though the firearm was found not in the car defendant was driving, but in the car of a co-conspirator. In so holding, the court expanded the Supreme Court's decision in Muscarello v. United States,
524 U.S. 125 (1998), which held that a gun found in the glove compartment or trunk of a car in which the defendant was an actual occupant could provide a basis for convicting under Section 924(c). [Mark Godsey]
Fingerprinting at the US/Canadian Border to Begin by the End of 2004
On December 7, officials from the Department of Homeland Security announced that fingerprinting of foreigners entering the U.S. from Canada will begin by the end of 2004. Fingerprinting technology has already been implemented at border crossings from Mexico into Arizona and Texas, and will be implemented at all land border crossings by the end of 2005. And in further efforts to improve the security of the border, deserted stretches of land will be monitored by motion-detecting sensors as well as land and air based surveillence. More... [Mark Godsey]
New Article Spotlight: 'The Power to Govern Men and Things': Patriarchal Origins of the Police Power in American Law
CrimProf Markus Dirk Dubber of Buffalo has posted an interesting paper with the above title on SSRN. The abstract states:
This article explores the genealogy of the most expansive, and yet least scrutinized, of governmental powers: the police power. The power to police, as "the power to govern men and things," is invoked in support of a vast expanse of legislation and regulation at all levels of governance, from the national government through the states and down to the smallest municipalities, including American criminal law in its entirety. At the same time it is a commonplace of American constitutional law that the police power "is, and must be from its very nature, incapable of any very exact definition or limitation."
"The Power to Govern Men and Things" argues that the essential limitlessness of the police power reflects its origins in the householder's patriarchal authority over his household, including "men" (animate household resources such as wives, children, servants, slaves, and animals) and "things" (inanimate resources such as buildings, tools, and land). In the words of Blackstone's much-quoted definition, the power to police is the power of the "pater patriae" to maintain "the domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and inoffensive in their respective stations." To obtain a draft of the article, click here. [Mark Godsey]
December 8, 2004
DNA identified the actual perpetrator, a convicted rapist serving life, of two Virginia rapes for which innocent defendants each spent over 20 years in prison; in spite of the DNA evidence, an eyewitness still insists that one of the men is guilty. The cases led the governor to order a review, expected to be completed soon, of DNA in cases where the evidence still exists. Canadian Thomas Sophonow, wrongfully convicted of murder and imprisoned for four years, received the last of his $2.6 million payment (report of official inquiry here). 76 year old Robert Coney spent 40 years in prison before convicing a judge that he was beaten into confessing; he was rearrested on a warrant charging him with a 1959 prison escape from Georgia. Californian Kevin Baruxes expects to receive $100 a day for his seven year wrongful imprisonment in a rape case; when the case fell apart, the court issued a declaration of innocence. A California fire captain had rape charges against him dropped when his 15 year old daughter recanted before trial; he still faces child pornography charges, and the county sheriff says that the complainant was under "tremendous pressure" to recant. Florida's Learie Leo Alford serving time for a 1973 rape/murder got the DNA test he wanted--guess what: he's guilty. Why, CrimProf asks, would someone who did it ask for a test? Three New Zealand girls wrongfully convicted of robbery and incarcerated for seven months declined an offer of $160K each and will go to court seeking more. A special prosecutor has been appointed to investigate whether there was culpable wrongdoing in the Kenneth Wyniemko case in Michigan; he served several years in prison before being cleared by DNA. [Jack Chin]
Changes in Murder Law in Australia; Abolition of Scotch Verdict
Australia is considering wide-ranging changes in the law of homicide, including abolition of the defense of provocation (what Americans would call heat-of-passion or extreme emotional disturbance), and changing the imminence requirement to "immediately necessary" to allow the defense more readily in battered spouse cases. The discussion is based on a report by the Victorian Law Reform Commission which has studied the issue for three years.
Meanwhile, Scotland is considering eliminating the famous "Scotch Verdict"--"not proven" as an alternative to guilty or not guilty. [Jack Chin]
ACLU Challenges DNA testing of Arrestees
The ACLU of Southern California has sued to challenge the recently passed Proposition 69, which allows testing of those who have been arrested but not charged or convicted, as well as those previously convicted who have fully completed their sentences. More here. [Jack Chin]
Supreme Court to Hear 4th Amendment Case Today
The Supreme Court will hear oral argument today in Muehler v. Mena, 03-1423, on appeal from the Ninth Circuit. The question presented: Whether a search warrant gives police the right to detain an arrestee in handcuffs at gunpoint for two or three hours while the police search the premises? More . . . [Mark Godsey]
Breaking Case News: When Suspect Opens Door to Home, Police May Not Enter to Effectuate Terry Stop
The Supreme Court of Idaho recently released its decision in Idaho v. Malland, in which the court held that when an officer has reasonable suspicion to execute a Terry Stop on a suspect who opens his door to the police, the police violate the Fourth Amendment if they enter the home to effectuate the stop. To read the decision, click here. [Mark Godsey]
New Article Spotlight: Sentencing Equality Pathology
This short article critiques the highly constrained notions of equality in modern sentencing reform. "Indeterminate" sentencing embraced formal outcome inequality: Different sentences for similar offenses were needed to serve the varied circumstances and characteristics of each offender. The past is a foreign country, and it is hard now to even imagine the mindset that allowed such formal outcome inequality to exist. While Congress made the reduction of unwarranted sentencing disparity a primary goal of the Sentencing Reform Act of 1984, the past two decades have not produced nuanced conceptions of disparity and equality in the federal system. The language of formal equality has continued to dominate the federal discussion of sentencing. The focus on apparent outcome equality in sentencing has become a pathology of federal sentencing reform for the past twenty years. The narrow focus of judges and the United States Sentencing Commission on achieving sentences that appear similar for offenders who appear similar - in other words, the absence of any context beyond formal outcome equality - has allowed Congress to shape federal sentences into a ready political tool.
The addition of detailed sentencing rules, procedures, and appellate review - basic elements of due process - might seem to offer a counterweight to the risk of sentences becoming unanchored from deeper conceptions of theory and justice. But detailed procedure, like formal equality, does not guarantee wiser outcomes in the absence of context. As Grant Gilmore once noted, "in Hell there will be nothing but law, and due process will be meticulously observed." Gilmore might have added there will be infinite formal equality as well.
Building on work by Professor Martha Fineman on the contextual nature of equality in other areas, this article suggests that fuller conceptions of equality in sentencing must reject narrow time-framing, account for the multiple screening and sorting functions of the criminal process (including sorting within and among criminal justice systems), attend to the justifications for punishment and evidence in support or against those justifications, and consider sentencing within the broader context of the causes and solutions to the social problem of crime. Functionally these goals can be advanced through continuing efforts at defining ideas and through comparative study of different places (including state and non-U.S. systems) and different times.
To obtain the article, click here. [Mark Godsey]