Monday, February 28, 2005
The Denver District Attorney's policy is to seek forfeiture of property used in crimes, including sex crimes. When a man lured a 9-year old into his home and attempted to assault her, he was not only sent to prison but had his house forfieted. The proceeds will go to the victim. [Jack Chin]
The Sixth Circuit held last week in U.S. v. Yoon, 03-5875, 2005 WL 427883, (and here) that once a civilian informant gains permission to enter a suspect's home and establishes probable cause that contraband is present, the informant may signal the police to enter the house as well and the police may then conduct a search. The court held that the permission given by the homeowner/suspect to the informant to enter the home constitutes "consent once removed" for the police to then search the home, even if the homeowner/suspect is not aware that the civilian is a police informant. The scope of the police search is limited to areas where the informant was granted access under the consent initially given to him, and of course, the police can seize any contraband in plain view in those areas. In so holding, the Sixth Circuit agreed with the Seventh Circuit's decision in United States v. Paul, 808 F.2d 645 (7th Cir.1986).
Although the justification given by the Sixth Circuit is thin, the rationale seems to be that once a suspect has granted access to his home to a confidential informant, he has voluntarily limited his expectation of privacy in the home. Thus, having the police then enter and search does not intrude upon any privacy interest not already abandoned by the homeowner through consent. This seems like a stretch to me. Granting access to a "friend," although the friend turns out to be not such a good friend, and in fact is a police informant, is a far cry from consenting to a police search of your home. I guess one could argue that the homeowner "assumes the risk," as in White, Hoffa, Lewis and Lopez, etc., that the person he allows to enter his home is working for the police, and thus, forfeits part of his expectation of privacy. But then again, those cases involved conversations, not the home per se, where the Fourth Amendment's protection is at its zenith. And beyond an assumption of the risk theory, a reasonable person who gives consent to his friend to enter his home probably believes he still has an expectation of privacy that includes the right to exclude the police. In other words, granting access to a friend or civilian on the one hand, and granting access to the police on the other, are not the same or even remotely similar from the perspective of the subjective expectation of the homeowner. [Mark Godsey]
A Texas study examined data from the records of over 1,000 Texas law enforcement agencies; the findings show that: 1) in 2003, two out of three of these agencies searched black and Hispanic motorists more often than white motorists; and 2) during searches of white motorists, law enforcement officials were just as likely to find illegal items than when searching black or Hispanic motorists. Executive director of the TX Police Chiefs Association believes that studies such as this are typically flawed for failing to account for time of day, location of the stop/search, and other such varying factors. The study also made the following recommendations:
- Adopting uniform reporting standards for racial profiling data;
- Requiring extra data to be collected by police agencies;
- Establishing an independent statewide repository for reports; and
- Banning consent searches (The study pointed out that three of five Texas police agencies were more likely to ask blacks and Hispanics than whites for a consent search).
Based on a new Massachusetts law, six people have filed claims for compensation for wrongful conviction. In Ohio, a woman called 911 claiming she was being assaulted and held at gunpoint in her apartment; an investigation showed she was at work the whole time and the alleged assailant was miles away the whole time. Police report a spate of false sexual assault claims from a high school in Maryland. In Boston, a lawsuit is proceeding by a person wrongfully implicated in an attack fabricated by a stressed-out cop who has since resigned. [Jack Chin]
Sunday, February 27, 2005
The deaths of two New York inmates sparked the New York Times to investigate prison health care in New York. Brian Tetrault was a 44-year old Parkinson's sufferer and former nuclear scientist jailed in 2001 for stealing skis and other items from his ex-wife's house. He was denied his medication for Parkinson's after his tremors were dismissed as "fake." After his death, corrections officers doctored his records to make it appear that he died after he was released. Victoria Williams Smith was a 35-year old, jailed for smuggling drugs, who died of a heart attack after being given nothing more than Bengay for chest pains. The nurse claimed that her pleas for hospitalization were a scam to get drugs. The New York Times writes: "In these two harrowing deaths, state investigators concluded, the culprit was a for-profit corporation, Prison Health Services, that had moved aggressively into New York State in the last decade, winning jail contracts worth hundreds of millions of dollars with an enticing sales pitch: Take the messy and expensive job of providing medical care from overmatched government officials, and give it to an experienced nationwide outfit that could recruit doctors, battle lawsuits and keep costs down. A yearlong examination of Prison Health by The New York Times reveals repeated instances of medical care that has been flawed and sometimes lethal. The company's performance around the nation has provoked criticism from judges and sheriffs, lawsuits from inmates' families and whistle-blowers, and condemnations by federal, state and local authorities. The company has paid millions of dollars in fines and settlements. In the two deaths, and eight others across upstate New York, state investigators say they kept discovering the same failings: medical staffs trimmed to the bone, doctors underqualified or out of reach, nurses doing tasks beyond their training, prescription drugs withheld, patient records unread and employee misconduct unpunished. Not surprisingly, Prison Health, which is based outside Nashville, is no longer working in most of those upstate jails. But it is hardly out of work. Despite a tarnished record, Prison Health has sold its promise of lower costs and better care, and become the biggest for-profit company providing medical care in jails and prisons. It has amassed 86 contracts in 28 states, and now cares for 237,000 inmates, or about one in every 10 people behind bars." The full story: "Private Health Care in Jails Can Be a Death Sentence" [Mark Godsey]
In a story discussing the Ohio Innocence Project he runs out of the University of Cincinnati College of Law, Professor Godsey commented on the DNA revolution: “With the advent of DNA, people have been able to go back and re-look at old cases … kind of get a crystal ball into old cases and see what we didn’t know before and we’ve realized that many people who are in prison are actually innocent.” And here's a separate story about the release of one of Professor Godsey's clients and his visit with the law school students who achieved his release. [Jack Chin]
Kansas AG Phill Kline is seeking medical records from abortion clinics to identify and prosecute women who had late-term abortions, and also to identify underage girls who had abortions so he can prosecute the would-be fathers for statutory rape. Two clinics are fighting the records request in the Kansas Supreme Court on the grounds that such medical records are personal and private to the patients. Details here. [Mark Godsey]
On March 2nd, American Law School will host a panel discussion, "Lock 'em up? Should Reporters Go to Jail for Refusing to Testify Before the Grand Jury?" Panelists include:
- Matt Cooper, Time Magazine correspondent who has refused to comply with a grand jury subpoena
- Lucy Dalglish, executive director, Reporter's Committee for Freedom of the Press
- Joseph diGenova, former U.S. Attorney, District of Columbia; founder, diGenova & Toensing
- Geneva Overholser, professor, Missouri School of Journalism; Washington Bureau and former Washington Post ombudsperson
- Randall Eliason, former chief, Public Corruption/Government Fraud Division, U.S. Attorney’s Office; adjunct professor, AU Washington College of Law
- Steve Wermiel (Moderator), professor of law, AU Washington College of Law
Details here. [Mark Godsey]
Saturday, February 26, 2005
At its February, 2005 meeting the ABA House of Delegates adopted resolutions proposed by the ABA Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process on federal sentencing, ineffective defense counsel, informants and compensation for innocents. In 2004, the ABA passed resolutions on eyewitness identification, investigation procedures, crime labs, standards for prosecutors and false confessions, approved in 2004. The New York Court of Appeals (at p. 13 n.5) recently cited the ABA policy supporting recording of interrogations. [Jack Chin]
Guyora Binder of Buffalo has published a new article on the widely misunderstood origin of the American felony murder rule in the Stanford Law Review. The following is an excerpt from the introduction:
Felony murder liability is one of the most persistently and widely criticized features of American criminal law. Much of the criticism is directed at a sweeping doctrine holding felons strictly liable for any death resulting from any felony. Many commentators and courts assert or assume that this harsh doctrine long prevailed as the common law rule in England, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision.
Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. All of these texts imply that this harsh common law rule was incorporated into American law at independence, where it persists to this day, except where mitigated by judicial or legislative reforms. Similar accounts of the development of American felony murder rules appear in other treatises and texts, in court opinions, in scholarly articles, and in law review comments. Based on such accounts, critics attack modern rules as "anachronistic" legacies of a morally regressive age.
Yet none of these accounts manages to identify when this supposed common law rule of strict liability for all deaths resulting from felonies became the law in England. None identifies a single case in which it was applied in England before American independence. LaFave, for example, explains that as felonies proliferated, the English felony murder rule became broader in scope and harsher in effect, until it was finally thought necessary to restrict it. Yet he does not identify any examples of harsh applications of the rule. Indeed, he does not demonstrate that the rule was ever applied before it was thus "restricted." These accounts are equally hazy about early American law. None of them documents application of such a rule in colonial America, or in the early American republic. None of them troubles to show that such a rule ever led to the conviction of felons who had caused death truly accidentally, that is, without culpability.
In short, there is something suspicious about our received account of the origins of American felony murder rules. This Article vindicates such suspicion and exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules in order to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. [Mark Godsey]
Friday, February 25, 2005
CNN.com reports: "The BTK serial killer investigation in Kansas is being used as a teaching tool in college criminal justice courses around the country. The killer known as BTK -- which stands for 'Bind, Torture, Kill' -- has been linked to eight unsolved killings in Wichita from 1974 through 1986. BTK resurfaced last March with letters to Wichita media and police. Police have collected more than 4,000 DNA swabs in an effort to find the killer. 'It's a very compelling case,' said Volkan Topalli, an assistant professor in the criminal justice department at Georgia State University in Atlanta. 'There's a lot of material to work with.' Topalli said he will touch on the case next semester during the serial-murder portion of his course on aggression and violence. At Nebraska Wesleyan University in Lincoln, students in a master's-level forensics class are tackling the case much in the way that Wichita authorities have been investigating it since it first surfaced. Graduate student Jackie Hoehner is trying to recreate the crime scene and layout of the home where the serial killer struck first in 1974, strangling four members of the Otero family. 'It is extra exciting because of the way he has resurfaced,' she said. Hoehner said one of the key mysteries is what happened to BTK during all the years he was not communicating publicly. Her theory: He moved away, then returned. Jeri Myers, a forensic science coordinator at Nebraska Wesleyan, said her students treat the BTK case as if they were professionals solving the mystery. She said her students learn what they can about the initial investigation, then analyze communications and look for similarities to create a suspect profile." Story . . . [Mark Godsey]
From Law.com: "Tuesday's endorsement of the attorney-client privilege for government officials by the 2nd U.S. Circuit Court of Appeals may be a strong candidate for U.S. Supreme Court review. By agreeing that legal counsel for former Connecticut Governor John Rowland could assert the privilege applied to conversations about a federal investigation into quid pro quos for gifts the governor received, the panel admittedly staked out a position it said was in conflict with one other federal appeals court and 'in sharp tension' with decisions in two other circuits. Unlike other circuits, including the D.C. Circuit when it ordered Deputy White House Counsel Bruce Lindsey to testify about former President Bill Clinton's relationship with Monica Lewinsky, the 2nd Circuit in United States v. John Doe, 04-2287-cv, said that, if anything, 'the traditional rationale for the privilege applies with special force in the government context.' 'It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice,' Chief Judge John M. Walker Jr. said. 'Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business.' Connecticut District Court Judge Robert N. Chatigny had ordered Anne C. George, former chief legal counsel to the Office of the Governor, to answer questions before a grand jury about her conversations with Rowland and his staff concerning the federal probe. The scandal ended last year with the resignation of Rowland and his entry of a guilty plea on Dec. 23 to one count of conspiracy to steal honest service. The 2nd Circuit reversed Chatigny after hearing an expedited appeal in August, finding that George would not have to testify. A panel of Judges Walker, Dennis Jacobs and Pierre Leval released a 20-page opinion on Tuesday explaining their rationale." Full story here. [Mark Godsey]
CrimProf Steven Drizin, a leading authority on police interrogations, coerced confessions and the juvenile death penalty, has beeen named legal director of the Center on Wrongful Convictions, part of the Bluhm Legal Clinic at Northwestern University School of Law. Drizin, clinical professor of law at Northwestern and assistant director of the Bluhm clinic, succeeds Professor Lawrence C. Marshall as the center's legal director. Press release here. [Mark Godsey]