Wednesday, December 29, 2004
From the newswire: "An independent commission of prominent and diverse experts in criminal justice has begun a two-year project to review and reform the Illinois Criminal Code. Former Governor James R. Thompson and former Illinois Appellate Court Justice Gino L. DiVito will co-chair the Criminal Law Edit, Alignment and Reform (CLEAR) Commission. The 22-member commission, which met for the first time Monday, includes four legislators chosen by Democratic and Republican leaders in the General Assembly, Attorney General Lisa Madigan and a designee of Gov. Rod Blagojevich. Other members of the commission are prosecutors, defense attorneys, judges and law enforcement officers.
'For the past 40 years, the Illinois Criminal Code has been changed in piecemeal fashion, and today's lengthy code is far more complex, confusing and sometimes inconsistent,' Thompson said. 'Not only is it difficult for most citizens to follow, but even experienced lawyers and judges can find it hard to comprehend. We must make the code more readable, understandable, consistent and just.'
'The complexities of the Illinois Criminal Code increase the likelihood of lengthy appeals that are expensive to defendants and to government,' Justice DiVito said. 'We must reform the code and reduce the likelihood that technical mistakes will allow criminals to escape punishment and reduce the chance that innocent people will be incarcerated.'
The CLEAR Commission will identify redundancies and inconsistencies in the code and will make recommendations for a simpler, balanced Code. The Commission expects to complete its work by December 2006. It will operate independent of state government and the court system and is funded through grants and in-kind donations.
For the full newswire report click here. [Mark Godsey]
Tuesday, December 28, 2004
Arbitrary and Capricious blogs the remarkable case of a California public defender (and former DOJ attorney and 8th Circuit Clerk) who, although a graduate of the University of Pennsylvania Law School, was apparently never admitted to the bar. You might think that this would be unusual, but it happens so often that there is an ALR on the topic. See Jay M. Zitter, Criminal Defendant's Representation by Person Not Licensed to Practice Law as Violation of right to Counsel, 19 A.L.R.5th 351. Occasionally prosecutors also don't bother to get admitted. See, e.g., People v. Carter, 77 NY2d 95 (1991). Some false lawyers are outright con artists, especially, it seems, in New York, although this convict on supervised release operated his fake law firm from Florida, and there are fake solicitors in Britain. Better than being a fake lawyer, obviously, is being a fake partner in a big firm. More interesting are the people who are really trying in spite of a lack of legal training, or those who can't pass the bar, such as (presumably) this Wilson Sonsini associate. My recommendation: Ignore any law blog entry unless you can verify the author's bar admission. [Jack Chin]
The Missouri Supreme Court overturned Brandon Hutchinson's death sentence in a case where co-defendant Freddy Lopez received 10 years based on ineffective assistance of counsel in the penalty phase. However, the court also noted that during the trial, Lopez's sister won the lottery, and used $230,000 of her winnings to settle a wrongful death action with the victims' family, in exchange for their agreement to recommend that the prosecutors accept a 10 year sentence. According to the court, which found no error on this ground, "Under the settlement agreement entered into evidence at the hearing, Lopez would pay the victims' family $230,000.00 if: the family recommended to the prosecutor that Lopez receive no more than ten years in prison and the judge actually sentenced Lopez to a prison term not to exceed ten years." The prosecution and court went along; Lopez got 10 years, Hutchinson was sentenced to death. Some people can afford to hire better lawyers than others, and the sentence can turn on that, but can it really be that death can turn on how much you have to pay the family? Here's the decision. [Jack Chin]
According to TechNewsWorld, "Phishing" is a new type of internet fraud that aims to "deceive consumers into going to phony Web sites through forged or 'spoofed' spam e-mails. Once there, consumers unwittingly input personal financial information such as credit card numbers and passwords, because they think they are on a legitimate financial Web site." The "Phishermen" then use the financial information to rip-off the unwary. The FBI and Secret Service have teamed up with top banks and internet service providers to create Digital Phishnet, which "creates a single, unified line of communication between industry and law enforcement. It enables both groups to gather and distribute the critical data needed to fight phishing in real time."
"'The key to stopping phishers and bringing them to justice is to identify and target them quickly,' said Dan Larkin, unit chief at the FBI's Internet Crime Complaint Center (IC3). Phishers create and dismantle these phony sites very, very fast, stockpiling credit card numbers, pass codes and other personal financial information over the course of just a couple of days, in order to avoid detection.
He said Digital PhishNet is a powerful response to this type of online fraud because it facilitates critical data collection between a large number of the targets of these crimes. This information pipeline will let law enforcement agencies identify phishers before they have time to disappear back into the anonymity of cyberspace.
Participants in Digital PhishNet are actively and aggressively seeking out phishing Web sites and identifying the origins of the spam e-mails designed to deceive consumers into visiting these phony Web sites."
For the full story, click here. [Mark Godsey]
The San Fransisco Chronicle reports that Brazil's sexual assault laws, written in the '40s, limit their application to assaults against "honest women." The term "honest women" is defined to include only unmarried virgins or another man's wife. The implication of these laws "was that only those women deserved protection, whereas the others deserved what they got. Judges ruled accordingly, dismissing the complaints of 'unchaste' women -- those who dared have sex outside marriage -- and exonerating their attackers. The men, the thinking went, must have been provoked or somehow ensnared by the brazen women."
With many Brazilians realizing that these laws are wrong, legislation is now pending in the Brazilian Congress to change such mysoginistic distinctions in the sexual assault laws. To read the story, click here. [Mark Godsey]
From Sunday's Editorial page: "The mandatory sentencing fad that swept the United States beginning in the 1970's has had dramatic consequences - most of them bad. The prison population was driven up tenfold, creating a large and growing felon class - now 13 million strong - that remains locked out of the mainstream and prone to recidivism. Trailing behind the legions of felons are children who grow up visiting their parents behind bars and thinking prison life is perfectly normal. Meanwhile, the cost of building and running prisons has pushed many states near bankruptcy - and forced them to choose between building jails and schools.
Seldom has a public policy done so much damage so quickly. But changes in the draconian sentencing laws have come very slowly. That is partly because the public thinks keeping a large chunk of the population behind bars is responsible for the reduced crime rates of recent years. Studies cast doubt on that theory, since they show drops in crime almost everywhere - even in states that did not embrace mandatory minimum sentences or mass imprisonment. In addition, these damaging policies have done nothing to curb the drug trade."
To read the full editorial click here. [Mark Godsey]
Monday, December 27, 2004
Check out CrimLaw's video and audio blog entries. Sentencing Law and Policy and Criminal Appeal notes that California law criminalizes viewing of the new Megan's Law wesbite by sex offenders. Sentencing Law and Policy's Year in Review is also a must-read. White Collar Crime blogs the DOJ's new focus on government corruption. Arbitrary and Capricious has a good blog on heroes of 2004, including a number of actors in the legal system. [Jack Chin]
A government review of British cases in which parents were convicted of killing their children revealed nearly 10% where further investigation was warranted on the ground of possible innocence; most of the cases involved dubious forensic testimony. The Associated Press reports on Darryl Hunt's life after exoneration. Massachusetts is close to passing legislation to compensate the wrongly convicted; the daytona Beach News edotorialized in favor of compensation for a Floridian wrongly convicted of rape. Arizona death row inmate Bobby Lee Tankersley, convicted in part on the testimony of a discredited forensic dentist, won a new sentencing hearing but not a new trial based on what the trial judge called inconclusive dna tests. The Texas House Research Organization has released a report (pdf) on crime labs in that state and whether the state should do more to regulate them after a series of high-profile errors, including the forensic error in the Brandon Moon case. A Michigan man who spent 99 days in jail accused of a fatal shooting spree before being cleared by DNA evidence has sued the city of Detroit claiming he was framed. [Jack Chin]
Breaking Case News: Guilty Plea Stands Despite Fact That Defendant Incorrectly Advised He Could Get Death Penalty
In Johnson v. Pinchak, also available here, a man who pleaded guilty to murder after his lawyer and prosecutors mistakenly told him that he risked being executed if he didn't confess is not entitled to relief, the Third Circuit holds. The court summarized the case and its holding as follows: "When petitioner, George Johnson, pled guilty to felony murder under the
misapprehension that he was eligible for the death penalty for that
crime, felony murder in New Jersey was not in fact a capital offense.
However, after receiving a sentence of life imprisonment with thirty
years parole ineligibility and after exhausting his state remedies,
Johnson sought federal habeas corpus relief alleging ineffective
assistance of counsel and involuntariness of his guilty plea. The
District Court ultimately granted relief on grounds that the state
court's mistake about Johnson's death eligibility for felony murder was
structural error, and thus, per se reversible.
The threshold question on this appeal is whether Johnson's claim is procedurally defaulted. Johnson did not raise the death penalty eligibility claim in his direct appeal to the New Jersey Superior Court, Appellate Division, nor did he address it in his first Post Conviction Relief (PCR) petition to the New Jersey courts. He first raised the claim in his petition for certification to the New Jersey Supreme Court; however, this petition was summarily denied. Over a year later, Johnson raised the death penalty eligibility claim in a second PCR petition, but that petition was filed more than five years after his sentence was handed down, and thus was time-barred under New Jersey Rule of Court 3:22-12. Rather than barring Johnson's claim on procedural grounds, however, the District Court invoked the "actual innocence" exception to the procedural default rules, which allows consideration of the merits of a claim, notwithstanding procedural default, to avoid a miscarriage of justice.
We conclude that, in so doing, the District Court misconstrued the scope of the actual innocence exception by applying it where the petitioner wrongly was led to believe he was death eligible, but where the death penalty was not actually imposed. Rather, we hold that the touchstone of the actual innocence inquiry is innocence of the sentence actually imposed, not innocence of a sentence for which the petitioner was merely eligible. We also conclude that Johnson's death-eligibility claim was procedurally defaulted because of his failure to bring the claim before the New Jersey state courts in accordance with their procedural rules. Supporting the procedural default conclusion are the facts that: (1) the New Jersey courts considering Johnson's application clearly relied on such procedural default as a separate and independent basis for their denial of relief, and (2) the five-year time bar under N.J.R. 3:22-12 is an adequate state ground, as it is strictly and consistently enforced in all but the most exceptional cases.
Accordingly, we will reverse the order of the District Court and remand with directions to dismiss Johnson's habeas petition as procedurally defaulted." More . . . [Mark Godsey]
Two men were sentenced last week to 25 years' and 19.5 years' imprisonment and ordered to pay $23 million in restitution for cutting corners and faking tests in an asbestos removal operation that put thousands at risk. At their trial, former employees testified the company did "rip and run" cleanups and performed as many as 75,000 phony tests, leaving thousands unknowingly exposed to asbestos. Prosecutors said the scheme was among the "longest, most serious environmental crimes in United States history." More . . . [Mark Godsey]
Robbers walk off with $39 million in one of history's most successful bank heists. Story here. [Mark Godsey]
UPDATE: MSNBC.com reports: "The thieves will have a hard time using the currency because almost all of the notes were specially produced by Northern Ireland banks. More than $24.5 million worth were new notes bearing Northern Bank’s own design and destined for ATMs, while most of the rest were used notes printed by Northern and three other local banks. Such notes, though denominated as British pounds, aren’t readily accepted in other parts of the United Kingdom or other countries.
Jeffrey Robinson, author of the book 'The Money Launderer,' said the gang took too much cash, and of too conspicuous a design, to spend or even hide. 'They obviously did not count on there being so much money, and Northern Irish notes,' Robinson said. “The money is fundamentally useless. I suspect they know that by now.'" Story . . . [Mark Godsey]
Sunday, December 26, 2004
Apparently, jurisdictions making it easier for private citizens to carry weapons have not seen the expected upsurge in applications. The article includes data from Michigan, Minnesota and Ohio, which recently enacted legislation. [Jack Chin]
Here's an article about counties allowing anonymous reporting of rapes and sexual assaults for women who do not wish to make a formal report. The jane doe report evidently allows police to collect evidence, in case the complainant changers her mind and wishes to go forward. [Jack Chin]
On December 23, President Bush announced that when Congress reconvenes in January, he will renominate 12 candidates to the federal courts of appeal, all of whom were previously denied confirmation in Bush's last term. Senator Arlen Specter (R-PA), who is expected to become chairman of the Judiciary Committee, fears that the submission of these 12 names will lead to early judicial gridlock and filibusters rather than compromise. Specter "would have preferred to have some time in the 109th Congress to improve the climate," but plans to work towards getting Bush's nominees approved. Some Democratic Senators, such as Charles Schumer (NY) see Bush's choice of making the judicial appointment issue first on the agenda for the 109th Congress as a sign that he is not interested in bipartisanship after all. More... [Mark Godsey]