December 25, 2004
Criminal Law Related Centers
If your school has a criminal- law-related center, program, LL.M., fellowship, concentration, or the like, would you send me an email, ideally with a link? I'd like to post a list, and I'd hate to miss any of them. [Jack Chin]
CrimProf Blog Spotlight: Brooklyn Law's Michael Cahill
Cahill writes: "I was delighted to come to Brooklyn in 2003, in part because I am a Northeast native. I grew up in northern New Jersey and lived in Manhattan for two years after finishing college at Yale in 1993. Between my two periods living in New York, though, I spent eight years bouncing around the upper Midwest.
The first four of those years were in Ann Arbor, Michigan, where I was working toward a joint degree from the University of Michigan’s Law School and School of Public Policy. I entered graduate school hoping to join the legal academy someday, but I initially planned to focus my scholarship on property law or health-care law — two subjects that remain interests of mine, and both of which I currently teach. It was only in my final year that I developed a strong interest in criminal law, thanks to a fortuitous collaboration with Paul Robinson, who was visiting Michigan that year from Northwestern (he is now at Penn). Paul and I wrote an article together, which proved to be the first of several joint projects; we are currently finalizing a book, entitled Law Without Justice, due out from Oxford University Press next year.
After graduation, I spent a year in Minneapolis clerking for Judge James B. Loken of the U.S. Court of Appeals for the Eighth Circuit. Minnesota was delightful, although the winter tested the mettle (and commitment) of my then-girlfriend Rosalyn, who grew up in Arizona and California. But she survived very well, as did the relationship; we’re now married. To further test Ros’s tolerance for cold weather, after my clerkship I accepted a job in Chicago, working as staff director for a commission charged with revising the Illinois Criminal Code. The experience proved an invaluable opportunity to acquaint myself, on at least a basic level, with the full breadth of the substantive criminal law. As the commission was completing its final report, I was fortunate enough to obtain a position teaching at Chicago-Kent for a year, after which I came to Brooklyn Law School.
After graduation, I spent a year in Minneapolis clerking for Judge James B. Loken of the U.S. Court of Appeals for the Eighth Circuit. Minnesota was delightful, although the winter tested the mettle (and commitment) of my then-girlfriend Rosalyn, who grew up in Arizona and California. But she survived very well, as did the relationship; we’re now married.
To further test Ros’s tolerance for cold weather, after my clerkship I accepted a job in Chicago, working as staff director for a commission charged with revising the Illinois Criminal Code. The experience proved an invaluable opportunity to acquaint myself, on at least a basic level, with the full breadth of the substantive criminal law. As the commission was completing its final report, I was fortunate enough to obtain a position teaching at Chicago-Kent for a year, after which I came to Brooklyn Law School.
My current scholarship deals mainly with punishment and sentencing. At the moment, I am particularly interested in two sets of issues that are frequently discussed in their constitutional dimension, while their equally important substantive or policy dimension is ignored. The first relates to the allocation of sentencing and other punishment-related authority between the jury, the judge, and other institutions — a hot constitutional issue after Apprendi and Blakely, but one whose underlying policy considerations have received less direct attention. I have a forthcoming article in the Chicago Legal Forum dealing with one aspect of this set of concerns. The other group of issues surrounds the question of when (and how much) liability is appropriate for multiple offenses at once, which is typically seen through the constitutional lens of double jeopardy, but also relates fundamentally to issues of punishment theory and how criminal offenses are formulated and defined. [To read abstracts to Cahill's scholarship, click here.]
I find these topics fascinating, though not nearly as fascinating as my seven-month-old son, Rowan, who also occupies a lot of my time these days."
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.
VA Attorney General Seeks to Increase the Availability of the Death Penalty
Besides Texas, Virginia has executed more people in the modern era of the death penalty than any other state. But VA Attorney General Jerry Kilgore hopes to increase its availability by dissolving the "triggerman" requirement, which limits the sentence's availabilty to the actual killer in a homicide case as opposed to offenders who are involved on some other level. Kilgore says his legislative proposal for the upcoming General Assembly in VA is a response to the sniper trial, in which the brains of the operation, John Allen Muhammad, appears not to have actually fired the shots. As a result, the prosecutors in the trial had to rely in part on an anti-terrorism law to ensure the death penalty's availability for Mr. Muhammad, because VA's triggerman requirement precluded its applicability. A spokesman for Kilgore, Timothy Murtaugh, noted that "23 of 38 states with the death penalty lack comparable restrictions"...and Kilgore hopes to "bring [Virginia] into the majority of death penalty states" by allowing prosecutors and juries to decide on a case-by-case basis if convictees are culpable enough for death, based on their level of involvement in each case. More... [Mark Godsey]
December 24, 2004
Sex Crime Victim's Mental Health Records Sought by Government
Eric Sarsfield served 10 years for rape before being exonerated by DNA evidence. His accuser entered therapy after the exoneration, feeling responsible for the miscarriage of justice. She now supports his federal lawsuit against the City of Marlborough, Massachusetts, saying that the police pressured her to identify him. In response, the city is seeking the records of her therapy, on the ground that it may show she is an unreliable witness. Said the city's lawyers: "Without the requested communications and records, the Defendants will not be able to effectively refute (her) testimony or determine her credibility. . .The information is vital to the outcome of the case." A lawyer for Sarsfield stated: "The victim in this case is being punished because she came forward to rectify this miscarriage of justice. It's a sad irony that this is being done by the very people who were sworn to serve and protect her in the first place." [Jack Chin]
Martha Stewart's Holiday Message: Sentencing Reform
Martha Stewart has posted a Holiday message on her website advocating sentencing reform for non-violent first-time women offenders. In her post, Stewart writes:
"I beseech you all to think about these women -- to encourage the American people to ask for reforms, both in sentencing guidelines, in length of incarceration for nonviolent first-time offenders, and for those involved in drug-taking. They would be much better served in a true rehabilitation center than in prison where there is no real help, no real programs to rehabilitate, no programs to educate, no way to be prepared for life "out there" where each person will ultimately find herself, many with no skills and no preparation for living." [Mark Godsey]
Breaking Case News: Tenth Circuit Says Charge for Lesser Included Offense Cannot Be Conditioned on Abandoning Inconsistent Defense
The Tenth Circuit held this month in U.S. v. Trujillo (also available here) that a district court may not condition a jury instruction regarding a lesser included offense on the defendant's agreement to abandon a defense inconsistent with that lesser offense. The defendant was charged with possession of cocaine with intent to distribute, and requested a charge to the jury for mere possession, a lesser included offense. The district court declined to give the instruction because the defendant had refused to abandon his inconsistent defense that he was not aware of the cocaine found in his car. [Mark Godsey]
Canadian Therapeutic Jurisprudence Manual for Judges
One of the most successful ideas to come out of my university is therapeutic jurisprudence, pioneered by David Wexler. (Can you possibly guess what the students nicknamed him?) TJ is defined as follows: "Therapeutic Jurisprudence concentrates on the law's impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognized and systematically studied." A number of judicial systems around the world have found this approach compelling; one of them is Canada, which, according to this press release, is trying to integrate TJ into its processes: "Canada's National Judicial Institute(NJI) has just published an important judicial problem solving/therapeutic jurisprudence manual. It is short, meaty, very readable, and ought to be of great value internationally. The manual is available online and , according to the publisher, non- commercial reproduction is encouraged. To access it, go to the NJI's website at http://www.nji.ca and click on 'education' and then 'publications', and finally on the title of the manual itself, Judging for the 21st Century: A Problem-solving Approach." For more information, here's the website of the International Network on Therapeutic Jurisprudence. [Jack Chin]
December 23, 2004
Blog Buzz: Bush the Grinch When it Comes to Pardons--UPDATED
Doug Berman at Sentencing Law and Policy and Orin Kerr at The Volokh Conspiracy have interesting posts about Bush's grinchly use of pardons. [Mark Godsey] So do Crime and Federalism, DeNovo and White Collar Crime Prof, which notes that 80% of pardons have gone to white collar criminals. Cited in the Berman blog is my friend and colleague, Margaret Colgate Love, who among other things was the U.S. Pardon Attorney, Ethics 2000 committee member, Kennedy Commission member, and Chair of the ABA Task Force on Collateral Sanctions; she is the leading expert on this topic; some of her thoughts are available here and here. [Jack Chin]
New Article Spotlight: Some Common Confusions About Consent in Rape Cases
Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what consent means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman's part, an expression by her, or both; it can consist of facts about a woman's mental state or expressive conduct that do not necessarily constitute a defense to rape or consist only such facts as do constitute a defense to rape; and it can consist of facts about a woman's mental state or expressive conduct or a legal fiction of such facts. In so far as we are unaware of the ways in which this conceptual framework structures the way we think about consent, we risk confusing ourselves and others in undertaking to make the law of rape more just. Some examples are (1) confusion as to whether the defense of consent ought to be deemed to consist of a mental state on a woman's part or an expression; (2) confusion about the relationship between consent to sexual intercourse and resistance to it; and (3) confusion about the relationship between force and non-consent. To obtain a copy of the paper, click here. [Mark Godsey]
Breaking Case News: Idaho Search Incident to Arrest Decision
The Idaho Supreme Court held this month in State v. Lamay that the area within an arrestee's "immediate control" is determined at the time he is arrested, not at the time he is first approached by the police. In Lamay, the police encountered the defendant next to his backpack, but arrested him in another room 15 feet from the backpack. Despite the fact that the arrestee's hand was inches from the backpack when the police first found him, the backpack was considered outside of the area of his immediate control by the time the officers placed him under arrest. The court ruled that the flexible "recent occupant" rule of Belton v. New York does not apply outside the automobile context. [Mark Godsey]
CrimProf Scheck: We Are On Verge of Historic Reforms in Eyewitness Identification Procedures
Cardoza CrimProf Barry Scheck, president of the National Association of Criminal Defense Attorneys, writes this month's column in the magazine Champion: "Soon, the single greatest
cause of the conviction of the innocent -- mistaken eyewitness
identification -- will be significantly redressed by a series of
historic reforms: We will see photo arrays and lineups conducted by a
blinded examiner (the person running the procedure doesn't know the
identity of the suspect); proper admonitions to witnesses that the real
perpetrator may not be present; proper selection of fillers so they
meet the description of the perpetrator, not the suspect; confidence
statements from witnesses at the time of identification in their own
words; and sequential presentation at identification procedures with an
adequate number of fillers (at least five). Based on strong scientific
proof that these reforms substantially reduce error and increase the
capacity of police to find the real assailant, courts, legislatures,
and prosecutors will adopt them because it's just good law enforcement.
But they will also act because there is a constitutional imperative at
work: The heart of the Supreme Court's due process jurisprudence in
this area is to prohibit systemic practices that unnecessarily increase
These reforms will move on three different tracks simultaneously. On one track, state and federal courts will reverse and revise Manson v. Braithwaite, instructing juries that failure to follow procedures that demonstrably reduce error must be held against the prosecution. Similarly, courts at pre-trial hearings will consider expert testimony and assess the taint from improper suggestiveness in light of new scientific evidence. On a second track, where trains are already in motion, police and prosecutors will voluntarily implement these reforms, following the lead of New Jersey, North Carolina, Minneapolis, Boston, Santa Clara (Calif.), and Northhampton (Mass.). And finally, state legislatures and Congress will follow the lead of Illinois, as well as suggestions from the American Bar Association, and enact bills funding pilot projects, research, and training." Full column here. [Mark Godsey]
December 22, 2004
Two Illinois men pleaded guilty to a 1986 murder of a medical student; four teenagers had been imprisoned for the killing before being cleared by DNA. A Rollins College student who claimed she had been raped admitted that the story was fabricated and could soon face charges. Texan Brandon Moon, 43, was cleared by DNA after serving 17 years for rape, another Barry Scheck exoneration; the El Paso DA formally apologized. Moon, a veteran, had been a college student in ROTC at UTEP when he was misidentified. Two California men exonerated after serving 14 years for murder were denied compensation by a California board; although the prosecutor concluded they were innocent, the men could not rule out the possibility that they were involved. In a strange episode, a New York Police Officer's claim that she was raped by two men led to no charges being filed against them as they reportedly produced a videotape showing that the sex was consensual; no charges were brought against the officer, although it was suggested that she seek counselling. A Palo Alto man, Jorge Hernandez, who confessed to a nursing home rape after being told he was caught on videotape but was later cleared by DNA evidence, settled a federal lawsuit against the city for $75,000. A Florida judge who overturned a double murder and sodomy conviction based on concealment of exculpatory evidence has nevertheless ordered that the defendant remain in prison while the state appeals. A Virginia woman was convicted of filing a false rape report and sentenced to community service. [Jack Chin]
Breaking Case News: Maryland High Court Holds Canine Sniff at Door of Residence Is Not a Search
The Maryland Court of Appeals, the state's highest court, recently held in Fitzgerald v. State (also here) that a canine sniff of the front door of an apartment is not a search and thus does not implicate the Fourth Amendment. In doing so, the court held that U.S. v. Karo and Kyllo v. U.S. do not require sniffs of homes to be treated differently than sniffs of luggage. Courts are currently split on this issue, but the Maryland court's position joins the majority. For a list of cases that hold a canine sniff of the exterior of a residence implicates the Fourth Amendment, click here. [Mark Godsey]
ACLU Reports that Bush Authorized Inhumane Interrogations of Detainees in Iraq
TalkLeft reports: "A document released for the first time today by the American Civil Liberties Union suggests that President Bush issued an Executive Order authorizing the use of inhumane interrogation methods against detainees in Iraq. Also released by the ACLU today are a slew of other records including a December 2003 FBI e-mail that characterizes methods used by the Defense Department as 'torture' and a June 2004 'Urgent Report' to the Director of the FBI that raises concerns that abuse of detainees is being covered up. 'These documents raise grave questions about where the blame for widespread detainee abuse ultimately rests,' said ACLU Executive Director Anthony D. Romero. 'Top government officials can no longer hide from public scrutiny by pointing the finger at a few low-ranking soldiers.'" [Mark Godsey]
CrimProf Beale Appointed Reporter to the Judicial Conference Advisory Committee on Criminal Rules
CrimProf Sara Sun Beale, Charles L. B. Lowndes Professor of Law at Duke, has been appointed reporter to the Judicial Conference Advisory Committee on Criminal Rules, which drafts rules of federal criminal procedure. In his letter of appointment, Chief Justice William Rehnquist of the United States Supreme Court called Beale a “superb choice” for the position, citing her extensive writing on criminal law and procedure, as well as her public and private experience as an attorney. More . . . [Mark Godsey]
Clever Jail Break: Inmate Switches Clothing With Twin Brother and Walks Free
When his twin brother came to visit him in prison, a Swedish inmate changed clothes with his twin and walked free. Faced with serving out his brother's sentence, the visiting twin later gave up the ruse to prison guards. Story . . . [Mark Godsey]
New Evidence in JonBenet Ramsey Case Points to Unknown Intruder
Talkleft has an interesting post about new DNA evidence and other evidence in the JonBenet Ramsey case that points away from the parents as the culprits and toward an unknown intruder. Go here for the post. [Mark Godsey]
December 21, 2004
Cincinnati Seeks New Dean
Nominations, expressions of interest, and requests for the comprehensive position description should be emailed to the Witt/Kieffer executive search firm here.
Legal Aid Society of New York Avoids Bankruptcy
The New York Times reports that a deal has been struck to save the Legal Aid Society of New York from bankruptcy. The Society had suffered from lax financial managment in recent years, in spite of a board populated by lawyers from the city's most prominent firms. The Society, which acts as the public defender for the City of New York, is the oldest legal aid organization in the country. [Jack Chin]
Breaking Case News: Ninth Circuit Reverses District Court and Holds Law Banning "Material Support" to Terrorist Organization Constitutional
Handing a major victory to the Bush Administration, the Ninth Circuit on Monday in U.S. v. Afshari overturned a lower court decision and held Title 18 U.S. C. 2339B(a)(1) constitutional. This statute provides criminal penalties for providing "material support" to a designated terrorist organization. The statute provides that an organization is designated as a "terrorist organization" under the statute by the Secretary of State. The further statute provides that an organization labeled by the Secretary as a "terrorist organization" can challenge this finding only in the D.C. Circuit.
The lower court had held that the statute was facially unconstitutional because it restricted judicial review to the D.C. Circuit alone. Rejecting that position, the Ninth Circuit stated: "Many administrative
determinations are reviewable only by petition to the correct circuit
court, bypassing the district court, and that procedure has generally
been accepted. Many are reviewable only in the D.C. Circuit, or the Federal Circuit, and those restrictions have also been generally accepted. The congressional restriction does not interfere with the opportunity
for judicial review, as the MEK's extensive litigation history shows.
And this scheme avoids the awkwardness of criminalizing material
support for a designated organization in some circuits but not others,
as varying decisions in the different regional circuits might."
The Court also rejected the defendants due process arguments against the statutorily designated procedure for judicial review. In rejecting the defendants' First Amendment arguments, the court stated: "It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization. Thus, we hold that § 2339B does not impermissibly restrict the defendants' First Amendment right of association."
According to the
indictment, the defendants solicited charitable contributions at the
Los Angeles International Airport for the "Committee for Human Rights,"
gave money and credit cards to the Mujahedin-e Khalq ("MEK"), and wired money from the
"Committee for Human Rights" to an MEK bank account in Turkey. They did
all this after participating in a conference call with an MEK leader,
in which they learned that the State Department had designated the MEK
as a foreign terrorist organization. The MEK leader told them to
continue to provide material support despite the designation. All told,
according to the indictment in this case, the money they sent to the
MEK amounted to at least several hundred thousand dollars.
The MEK was founded in the 1960s as an Iranian Marxist group seeking to overthrow the regime then ruling Iran. It participated in various terrorist activities against the Iranian regime and against the United States, including the taking of American embassy personnel as hostages in 1979. After the Iranian regime fell and was replaced by a clerical, rather than a Marxist, regime, MEK members fled to France. They later settled in Iraq, along the Iranian border. There they carried out terrorist activities with the support of Saddam Hussein's regime, as well as, if the indictment is correct, the money that the defendants sent them. [Mark Godsey]