December 21, 2004
Influential Manhattan DA Urges New York to Drop Death Penalty
At a hearing to consider whether New York should continue its ten-year experiment with capital punishment, Robert Morgenthau, the long-serving DA in Manhattan, urged lawmakers in New York to abandon it. He argued: ""The penalty exacts a terrible price in dollars, lives, and human decency. Rather than tamping down the flames of violence, it fuels them....I urge all of our lawmakers, in the strongest possible terms, not to reinstate the death penalty in New York." More . . . [Mark Godsey]
U Maryland Clemency Win
NPR profiled Walter Arvinger, who served 36 years for a crime he did not commit. Arvinger was granted clemency based on the work of students and faculty at the University of Maryland Law School at a clinic headed by CrimProf Michael Millemann. More here.
Criminal Background Checks for Students
UNC is implementing a criminal records check for applicants after two students failed to disclose criminal convictions on their applications and then killed classmates. One had a larceny conviction, the other a conviction for a sex offense. [Jack Chin]
December 20, 2004
Strange Defendants in Indian Porn Case
There are two interesting defendants in a case in India where child porn was allegedly sold on India's eBay. First, the head of eBay India was arrested and held without bail on the ground that it was his company that distributed the tapes. I always told my students that the UPS delivery person was not criminally responsible for possession or transportation if, unbeknownst to them, a package they delivered contained drugs, guns or pornography--am I wrong? Second, one of the participants in the activities, himself a minor, was arrested. While it is not clear that this is a kiddy porn case rather than an ordinary porn case, it does raise the issue of whether a minor is liable for producing their own child porn. The compelling case that kiddy porn can be criminalized, consistent with the First Amendment, rests on exploitation of and injury to the child herself or himself, and it hardly seems to protect the innocence and dignity of children to charge them as adults and send them to prison for the crime of exploiting themselves. (Of course, whatever defense a minor might have to child porn charges would be inapplicable to others who possessed or sold child-produced materials.) UPDATE: Here's an article about a statement by the defendant. [Jack Chin]
CrimProf Blogger Makes Good: Mark Godsey Profile
Disproving the old slur "those who can, do, those who can't, blog," Cincinnati CrimProf Mark Godsey has notched another remarkable success in his legal career: Through the Ohio Innocence Project he directs, his students obtained parole for Gary Reece, a convict who served 25 years. CrimProf blogged the case earlier; Mark's students argued actual innocence, and the evidence of innocence was cited by the Parole Board as the reason for Reeces' release. Gary Reece is not the first person Mark claimed was innocent who is now free. In 2003, when Mark was Faculty Supervisor of the Kentucky Innocence project, along with Northern Kentucky U. CrimProf Mark Stavsky, his students exonerated Herman May. Mark and his students are also working on a number of other cases, including the conviction of a former Akron police captain serving life for a murder he claims he did not commit.
This year has been good for Mark in other ways; he won Cincinnati's Goldman Prize for Excellence in Teaching, its prize for support of public interest work, the Ohio State Law School's Outstanding Recent Alumnus Award, and a Superstar of Criminal Law '04 award by the Ohio Association of Criminal Defense Lawyers. He helped land a $1 Million gift to endow the Innocence Project, and has a major piece coming out in the California Law Review on confessions to join his Duke and Georgetown publications (available here).
Mark is a graduate of Northwestern University and Ohio State Law School, where he was an editor of the law review and graduated second in his class. He clerked for Judge McKay on the 10th Circuit, spent some time at Jones, Day and then five years at the U.S. Attorney's Office in the Southern District of New York where he prosecuted organized crime cases, among others. After two years of teaching at Northern Kentucky University, Salmon P. Chase College of Law, he joined the University of Cincinnati, where he is now in the middle of his second year.
Congratulations, Mark, on all of your accomplishments in the service of justice! [Jack Chin]
Criminalizing the Killing of the Unborn
The Washington Post has an an article today about the trend in the states toward criminalizing acts that result in the death of a fetus. Virginia's new law is called "Connor's Law," after the unborn son of Laci Peterson. Pro-choice supporters sees the trend as another attempt by pro-lifers to undermine Roe v. Wade. Full story.... [Mark Godsey]
New Article Spotlight: Unraveling Unlawful Entrapment
"This Article attempts to advance a new and superior interpretation [of the entrapment defense] by focusing on the relevancy of the entrapper's governmental status. In this manner, the puzzle of entrapment can be neatly unraveled. First, the article presents the basic contours of the doctrine. Second, it reviews a variety of theories of entrapment and exposes their shortcomings as explanations for why the entrapped should be exonerated. Third, the Article introduces and defends a new theory of entrapment-- entrapment as unfairness. According to this theory, entrapment is neither an excuse, a justification, nor a public policy defense, as those categories have traditionally been understood. Rather, entrapment is fatally unfair to its target in the following sense: For society to impose criminal sanctions on an entrapped person would be to place on her a disproportionate share of the cost of general crime prevention and control, violating the well-established norm of distributive justice that, to the extent possible, the cost of an activity should be shared among all its beneficiaries. After elaborating this thesis, the Article considers and responds to a number of potential objections to entrapment as unfairness. Finally, the Article applies the theory to a number of current controversies concerning entrapment."
To read the article, click here. [Mark Godsey]
Can Saddam Hussein Get a Fair Trial?
Report: More Research Needed on Gun Control
MSNBC.com reports: "An analysis of efforts to control violence by restricting guns released Thursday concludes there is not enough evidence to reach valid conclusions about their effectiveness. The National Research Council said that a major research program on firearms is needed. 'Policy questions related to gun ownership and proposals for gun control touch on some of the most contentious issues in American politics,' Charles Wellford, chairman of the committee that wrote the report, said in a statement.
Among the major questions needing answers are whether there should be restrictions on who may possess firearms, on the number or types of guns that can be purchased, and whether safety locks should be required, said Wellford, a professor of criminal justice at the University of Maryland. 'These and many related policy questions cannot be answered definitively because of large gaps in the existing science base,' he said. “The available data are too weak to support strong conclusions.'
Thirty-four states have 'right to carry' laws that allow certain adults to carry concealed weapons. However, the report found no credible evidence that such laws either decrease or increase violent crime.
Citing another example, the report said there is almost no evidence that programs aimed at steering children away from guns have had any effect on their behavior, knowledge or attitudes toward firearms. The report does not address gun policy itself, only the quality of available research data on firearm violence, control and prevention efforts.
Many studies linking guns to suicide and criminal violence produce conflicting conclusions, have statistical flaws and often do not show whether gun ownership results in certain outcomes, the report said. A serious limit in such analyses is the lack of good data on who owns firearms and on individual encounters with violence, according to the study. Research scientists need appropriate access to federal and state data on gun use, manufacturing and sales, the study urged."
More . . . [Mark Godsey]
December 19, 2004
Washington Post on Murder of Mothers
Here's an important news article, first of a series, on homicide of pregnant women or new mothers. The article quotes a study of maternal deaths in Maryland which reports that such women are more likely to die of homicide than any other cause. "Homicide accounted for 50 of 247 maternal deaths in Maryland over a six-year period — more than 20 percent. It had caused more deaths than cardiovascular disorders, embolisms or accidents." (Here are the second and third parts of the series, and a critical review from Slate.) [Jack Chin]
Homicide Based on Unfenced Cows
A Montana rancher who habitually failed to secure his cattle was charged with manslaughter after a cow wandered on to a highway and was hit by a car, killing the driver. The rancher had been cited dozens of times for failing to fence his livestock. The victim was travelling on an unlighted highway at night and hit the black cow. The Billings Gazette reported: "According to the warrant, [Defendant] Kunzler once told two UHP troopers "words to the effect, 'I don't care if my cows are hit by cars. I make more money claiming them on my insurance than selling them at the auction."'" Meanwhile, the owners of three dogs in Arizona face second degree murder charges after the animals attacked and killed a five year old girl; the owners had been cited earlier in the month when the animals attacked another dog. [Jack Chin]
Grateful Dead Lyricist Challenges Search
NPR's All Things Considered recently aired an interesting story on an attempt by John Perry Barlow to suppress drugs found during a luggage search that he contends violated the Fourth Amendment. John Perry Barlow is a retired Wyoming cattle rancher, a former lyricist for the Grateful Dead, and co-founder of the Electronic Frontier Foundation. Since May of 1998, he has been a Fellow at Harvard Law School's Berkman Center for Internet and Society. To listen, click here. [Mark Godsey]