December 18, 2004
Kenyan Rape Law Reform
The Court of Appeal of Kenya has held that corroboration of female testimony is no longer required in rape cases. According to the three judge court in Mukungu v. Republic,
“We think that the time has now come to correct what we believe is a position which the courts have hitherto taken without a proper basis, if any basis existed for treating female witnesses differently in sexual cases such basis cannot properly be justified presently. The framers of the Constitution and Parliament have not seen the need to make provision to deal with the issue of corroboration in sexual offences. In the result, we have no hesitation in holding that decisions which hold that corroboration is essential in sexual offences before a conviction are no longer good law as they conflict with section 82 of the Constitution”.
More here. [Jack Chin]
CrimProf Spotlight: GW's Orin S. Kerr
Kerr writes: "I graduated from Harvard Law School in 1997, clerked on the Court of Appeals for a year, and then entered the Justice Department Honors Program in the Criminal Division. Most of my legal scholarship has been inspired by the terrific experience I had working at DOJ in the Computer Crime and Intellectual Property Section, also known as “CCIPS,” from 1998 to 2001. CCIPS was a crash course in the new world of computer crime law. My experience included directing investigations in computer hacking, child pornography, and other computer crime cases; writing the 2001 edition of DOJ’s manual on Searching and Seizing Computers; drafting and commenting on legislation; and serving as a legal advisor to other prosecutors and law enforcement agents in a wide range of computer crime cases.
While at DOJ, I realized that a new branch of criminal law was developing that the academic world had not yet noticed: computer crime law. Computer crime law asks all of the traditional questions of criminal law and criminal procedure in the new factual setting of computers and the Internet. I had been interested in computer crime law as far back as law school; I came to law school following engineering graduate school at Stanford, so I was interested in technology, and I wrote a case comment on a computer crime case as a 2L. But at DOJ I began see the various strands of computer crime law as parts of a surprisingly coherent whole.
Specifically, the field has both its own complex doctrinal puzzles – including the interpretation of difficult statutes such as the Computer Fraud and Abuse Act, the Stored Communications Act, the Pen Register Statute, and the Wiretap Act, as well as the applications of the Fourth Amendment to computer search and seizures – and also raises a number of deep and interconnected questions about the relationship between law and technological change. Further, it seemed like a safe bet that the field would grow more important in the coming years. At a time when many academics were debating whether “cyberlaw” existed, I realized that a distinct field of computer crime law already had emerged and that a growing number of prosecutors around the country already were practicing it.
I left DOJ in the summer of 2001 and accepted a position as an Associate Professor at George Washington University Law School. I taught at GW for two years, and then took a one-year leave of absence to clerk for Justice Kennedy at the Supreme Court. I returned to GW this past summer, and this year I am teaching Criminal Law, Criminal Procedure, and Computer Crime. As you might guess, my scholarship since leaving DOJ has focused on what I see as the basic questions of computer crime law. No one has written on most of these questions, and the courts have had trouble with them (to the extent they have addressed them at all). Most of the important questions are still open.
My articles published in the last two years cover topics such as the proper interpretation of computer crime statutes (in the Nov ’03 NYU Law Review); how digital evidence will change criminal procedure (forthcoming in the Jan ’05 Columbia Law Review); the role of the Fourth Amendment in protecting privacy in new technologies (in the Mar ’04 Michigan Law Review); and the USA Patriot Act (in the Winter ’03 Northwestern Law Review). [For a list of Kerr's Publications click here, and for links to Kerr's recent publications, click here.]
Right now I am working on an article on the Fourth Amendment and the computer forensics process. The question is, what rules should regulate the retrieval of evidence from a seized computer hard drive? So far it’s a fun paper, as computer hard drives are hard to categorize from a Fourth Amendment perspective. Is searching a hard drive just like searching a physical box? Or is it more like searching a virtual home? Or perhaps more like wiretapping a telephone? The doctrinal answer is a mystery at present, but the questions raise a number of interesting and important questions about the nature of the Fourth Amendment.
My next big project is completing the Computer Crime Law casebook that I am writing for West Publishers. I completed a draft in the summer of 2003, and it was used last year at about a dozen law schools. The casebook presents my basic take on the field. It covers topics such as computer hacking, viruses, cyberstalking, Internet frauds, child pornography laws, sentencing cybercriminals, online entrapment, Internet surveillance law, wiretapping, e-mail privacy, federal and state limits on investigating and prosecuting crimes, international cooperation and the EU Cybercrime convention, and the Foreign Intelligence Surveillance Act. Coming soon."
Kerr also co-edits The Volokh Conspiracy blog.
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.
Breaking Case News: Kansas Supreme Court Strikes Down State's Death Penalty Law
CNN.com reports: "Six inmates will be resentenced and avoid execution after the Kansas Supreme Court ruled Friday that the state's death penalty law is unconstitutional. In its 4-3 opinion, the state high court said the 1994 law is flawed because of a provision about how jurors should weigh death penalty arguments during sentencing. The Kansas law states that when juries find arguments for and against execution equal, their decision should favor a death sentence. But a majority of the justices said such a requirement violates the Eighth and 14th amendments of the U.S. Constitution, according to court officials.
The Kansas statute's 'express language was clearly intended to mandate the imposition of a death sentence when the existence of aggravating circumstances was not outweighed by any mitigating circumstances,' the opinion states."
December 17, 2004
Court Holds PDs Lack Standing to Intervene in Death Case
From Kirby's Reports: The State Division of Public Defender Services will appeal yesterday's decision by Superior Court Judge Patrick Clifford ruling that the Public Defenders lacked standing to intervene in the death penalty case of convicted serial killer Michael Ross. Gerard Smyth, the chief public defender, said that the public defenders will file a writ of error with the Connecticut Supreme Court and that Smyth hopes that Supreme Court will rule on the appeal before a December 28 hearing to determine if Ross is competent enough for the execution to proceed. Earlier this year, Ross fired his public defenders and hired a private attorney, T.R. Paulding Jr., to help him proceed with the execution. Ross has previously stated that he no longer wishes to challenge the execution and that the time for appeals has passed.
The Public Defenders are arguing that Ross is incompetent and attempting to commit state assisted suicide. "It is our belief that he is depressed and he doesn't want to fight anymore; that he's affected by the many, many years he's spent in isolation on death row and that he's happy to have the state put him to death," said Smyth, "Effectively it's suicide on his part."
According to the New Haven Register, "Smyth's office also sought to intervene on behalf of other clients on death row, arguing that Ross's execution could make it more acceptable for the state to proceed with other executions. They also said it could have a 'contagious' effect that would result in other death-row inmates ending their appeals." [Mark Godsey]
Breaking Case News: Internet Seduction of Minors
Title 18 U.S.C. 2422(b) makes it a federal crime to use the Internet to knowingly attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity. The Eleventh Circuit broadly interpreted this statute this week in U.S. v. Hornaday. In Hornaday, the court held that the statute can be violated even when a defendant does not make direct Internet contact with a minor, but rather, contacts another adult over the Internet for the purpose of enlisting that adult to arrange a sexual encounter between the defendant and a minor. The court looked to the policy behind the statute, and held that allowing a defendant to circumvent the spirit of the statute by using an adult intermediary would frustrate Congressional intent. The court also believed that the use of an adult intermediary could qualify as an act of "inducement" of a minor, which is one of the prohibited acts listed in the statute. To read the opinion, click here. [Mark Godsey]
2001 Law Grad Convicted of Using Credit Card Scam to Pay for Law School
Christian Ehlers, a 2001 graduate of Loyola Law School who is admitted to practice in California, was convicted this week in federal court of bilking credit card companies out of $1.2 million in a scam that was used to pay for Ehler's law school education. The charges carry up to 175 years' imprisonment. More . . . [Mark Godsey]
New Article Spotlight: Reforming the U.S. Sentencing Guidelines after Blakely
CrimProf Stephanos Bibas of Iowa, previously spotlighted here, has posted the above-titled essay on SSRN. The abstract states:
In Blakely v. Washington, the Supreme Court all but held that juries must find beyond a reasonable doubt facts that raise sentences under sentencing guidelines. This essay, originally prepared as testimony before the United States Sentencing Commission, explores the legal and political hurdles to reforming the federal Sentencing Guidelines. While removing all maxima from the existing guidelines (the so-called Bowman proposal) may work as an interim solution, it also may distort plea-bargaining behavior. Another proposal, to invert the Guidelines by rephrasing all aggravators as mitigators, is too gimmicky and would likely be held unconstitutional. The best long-term solution is to simplify and streamline the Guidelines down to a handful of the most commonly applied enhancements and to broaden sentencing ranges, to allow moderately more flexibility while retaining the Guidelines' binding force. This solution would track the best features of successful state guideline systems. The Commission should add more procedural protections to sentencing and limit but not abolish the relevant-conduct rules. These measures would best restore the balance of plea-bargaining power, empowering appellate and sentencing judges to check unilateral prosecutorial decisions.
To obtain a copy of the essay, click here. [Mark Godsey]
New Flashlight Beating Rules in LA
Los Angeles authorities are planning to restrict LAPD use of flashlights as weapons. The videotaped beating that led to controversy is available here. Here's a police discussion board talking about how these things can be weapons or not. Meanwhile, San Francisco voters will be asked to approve a ballot measure banning most private ownership of handguns. [Jack Chin]
Acts and Omissions
In Mangano v. Commonwealth, the Court of Appeals of Virginia reversed a conviction of child abuse where a father supervising children failed to prevent one from shooting another with a gun. The case nicely illustrates the difficulty in distinguishing between acts and omissions, and the requirements for establishment of actus reus based on an omission. Here, the father saw his son with a rifle (which had been kept handy because of the D.C. sniper attacks) and told him to put it away; instead, the boy (who had taken a firearms safety course) accidentally shot his friend. The court explained that not every omission would substitute for a positive act, and concluded that there was insufficient evidence that the defendnt knew of a danger requiring action. Accordingly, while there was an omission, it was not willful, and thus could not be the predicate for criminal liability. One could argue that the defendant did act, by telling his son to put the gun away, and the question is whether that action was sufficient to discharge his duty to act. (The duty in this case could arise from being a parent, from voluntary assumption of a duty to supervise the other child, from being a host, or from being a risk-creator by owning a gun accessible to children.) A Virginia statute criminalizes allowing children to use guns unsupervised, but it applies only to children 11 and under. [Jack Chin]
December 16, 2004
California Megan's Law Website
Here it is. Jack Chin
A Texan who served 12 years in prison for rape was found actually innocent by the Texas Court of Criminal Appeals after the complainant recanted. (Here's another story.) A man in the Netherlands who has served 4 years of an 18 year sentence was cleared when a DNA test indentified a different perpetrator. In Florida, sexual assault charges against a doctor were dropped when the complainant admitted she had lied about her extensive history of mental illness. A Taunton, Massachusetts babysitter recanted a rape accusation against her employer, admitting she fabricated the story. An ABC story explores reentry into society of exonerated individuals. Murder charges against a California man who spent 10 months in jail were dismissed after a public defender persuaded the DA that the supposed eyewitness actually committed the crime and framed his friend. [Jack Chin]
Military Consensual Sodomy
Here's the opinion from the Army Court of Criminal Appeals holding that the consensual sodomy provision of the UCMJ is unconstitutional based on Lawrence v. Texas. Here's a news report by NYLS Prof Arthur Leonard. Jack Chin
The American Society of Victimology will hold its annual conference at Cal State Fresno in April 27-30, 2005. [Jack Chin]
Record Sentence for Computer Crime Handed Down to Lowes Hacker
Law.com reports: "One of three Michigan men who hacked into the
national computer system of Lowe's hardware stores and tried to steal
customers' credit card information was sentenced Wednesday to nine
years in federal prison. The government said it is the longest prison term ever handed down in a computer crime case in the United States.
" More . . . [Mark Godsey]
DVDs Tell Drug Snitches Not to Cooperate With Authorities
Homemade DVDs are circulating in Baltimore that urge potential drug informants to keep silent. One, entitled "Don't Snitch," includes an appearance by NBA star Carmelo Anthony. Rep. Elijah Cummings (D-MD) is asking Anthony to denounce the DVD. To listen to the NPR report, click here. [Mark Godsey]
New Article Spotlight: Is it Wrong to Commute Death Row? Retribution, Atonement and Mercy
CrimProf Stephen P. Garvey of Cornell has post the above-titled paper on SSRN, to be published in the North Carolina Law Review. The abstract states:
Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an imperfect obligation. But such a theory cannot, I argue, justify mass commutations. Mercy so understood comes at the cost of doing justice. As such, at some point short of the last commutation the demands of mercy must yield to those of justice. The third theory, in contrast to the first two, locates mercy within a theory of punishment as atonement, not in relationship to a theory of punishment as retribution. This theory of mercy, which treats mercy as a means by which to preserve the possibility of eventual atonement between the offender and the family of the victim, can, I suggest, provide a plausible and morally attractive basis for permitting, though not requiring, the commutation in the name of mercy of the death sentences of every inmate on death row.
To obtain a copy of the paper, click here. [Mark Godsey]
TaxProf has a post on an injunction obtained by the IRS against the Taxbusters guide sold in 41 states. Sentencing Law and Policy has a great post on the rehabilitation of rehabilitation. Talkleft has a nice post on the cost of the Scott Peterson prosecution. [Jack Chin]
December 15, 2004
Crime and Federalism has a list of criminal blogs, including White Collar Crime Prof Blog, Sentencing Law and Policy, and us. [Jack Chin]
New Bill Makes Voyeuristic Use of Camera Phone a Federal Crime
CNN.com reports that in one of its last acts of 2004, Congress passed a bill that criminalizes the act of using camera phones to sneak photos of others in various stages of undress. The bill, which President Bush is expected to sign, would make it a crime to videotape or photograph the naked or underwear-covered private parts of a person without consent when the person has a reasonable expectation of privacy. Conviction could lead to a fine of not more than $100,000 or imprisonment for up to one year, or both.
While camera phone voyeurism probably won't be high on the list of federal crimes the FBI and other federal agencies pursue, "at least in theory there is now federal protection available so people can't unknowingly have their private parts photographed, downloaded and transmitted around the world," said Hanan B. Kolko, a New York civil liberties lawyer. For the full story, click here. [Mark Godsey]
Can Cops Use Threats to Get a Kidnapper to Disclose a Victim's Location?
A German prosecutor says no. In September, 2002, two officers threatened a suspected kidnapper to get him to disclose the location of the 11-year-old victim, the son of a wealthy banker. Upon hearing the threats, the kidnapper admitted the boy was dead, at the bottom of a lake. The kidnapper is serving a life sentence. The officers are now being prosecuted for the threats, which evidently violate the German constitution. The prosecutor is seeking fines against the officers. ``The door to a very dark room was opened and this door needs to be shut again,'' the prosecutor told the court. ``A person in custody has the right to be treated with human dignity.'' A verdict is expected later in December.
On a related topic, here is a paper by Minnesota CrimProf Oren Gross, "Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience" and here is "Torture" written by Loyola CrimProf Marcy Strauss. But of course, torture is not the precise problem presented in the German case, because there is a big difference between threats of torture and torture. See, e.g., Arizona Revised Statutes section 13-407(A) which permits threats of deadly force to terminate a trespass, but not the actual use of deadly force. In many cases, a successful, empty threat of deadly force would be better than actual use of lawful, non-deadly force; I'd rather have cops make peaceful arrests, for example, by threatening to shoot a resisting subject rather than requiring them to use a nightstick, mace or Taser. [Jack Chin]