Saturday, January 8, 2005
The Berman Blog has an excellent post today about the Bush Administration's view of rehabilitation as a goal of incarceration. The post also discusses the fact that the Administration is planning to end the shock incarceration program, which allows certain inmates who have a chance to be rehabilitated to serve a shorter prison sentence in a "boot camp" environment in which they learn discipline and get job training. This news if very disappointing. When I was a federal prosecutor, I recommended this option for three nineteen year olds that I prosecuted who stole money from a post office. I later heard news that two of them had really turned their lives around after the program, and one was attending junior college and playing baseball. They credited the shock incarceration program for setting them straight. Having grown up in the projects without many prospects, this was a very good alternative for these young men that seemingly made a difference. [Mark Godsey]
On January 7, Military Judge Col. James Pohl and lawyers selected 10 soldiers to serve as the jury in the case against Specialist Charles A. Graner for his role in the Abu Ghraib prisoner abuse scandal. The trial was moved to Fort Hood, TX from Baghdad because military officials believed they would not be able to find enough soldiers to serve as a jury in Iraq. Selecting the 10 soldier jury took only an hour in Fort Hood. Lawyers reported that all 10 soldier-jurors (4 officers and 6 enlisted soldiers) are male, combat veterans. The initial jury pool consisted of 12 soldiers, and only two were dismissed for potential bias. Col. Allen Batschelet, one of the two dismissed jurors, expressed his sentiments about the scandal, "Frankly, I've got to tell you, it had a strong impact on me...As an Army officer, I was embarrassed by what I saw in the media...The values I hold dear as a soldier were called into question by the whole affair."
Three of the detainees who were abused will testify via video deposition in the trial. Seven of the 10 jurors are needed for a conviction and 8 of the 10 jurors must agree for Graner to be given a sentence of 10 or more years. This will be the first trial against a military officer involved in the Abu Ghraib prisoner abuse scandal, and lawyers' opening statements will begin on January 10. More from the NYTimes article... [Mark Godsey]
On Thursday, CrimProf bloggers Jack Chin and I, along with Sentencing Law & Policy blogger Doug Berman, talked to the Criminal Justice Section at the AALS conference in San Francisco on the topic of blogging and the academy. White Collar Crime Prof Blog has the summary here. [Mark Godsey]
The Chicago Tribune has a story about an offender suffering from serious mental illness who has assaulted numerous persons but is still free. "While Cook has been convicted twice of misdemeanor battery, in 1998 and 2001, the legal system has done little to stop him, a Tribune review of court documents shows. The system is simply ill-equipped to deal with mentally ill offenders who do not get lasting psychiatric help, prosecutors and police say.
Though prosecutors have repeatedly charged Cook with misdemeanors, the charges were dropped when he or the victims failed to show up in court."
I did not know that a defendant could get charges dropped by not showing up in court. That seems like a very useful strategy. [Jack Chin]
The International Organization for Migration (IOM) in Indonesia has suspected at least seven specific cases of child trafficking since the December 26 tsunami, but on January 7 UNICEF confirmed the first case of a child tsunami survivor being kidnapped. A four year old boy was kidnapped from Banda Aceh, the capital of Indonesia's Aceh province, by a couple claiming to be his parents. NGO's grew suspicious that the couple kidnapped the child when they later claimed to be the boy's neighbors as they checked him into a hospital 280 miles southeast of Banda Aceh. Another case under investigation in the Aceh province includes a charity worker's sighting of about 100 infants being taken in a speed boat in the middle of the night. According to the IOM "some 250,000 people are trafficked in, out and through the Southeast Asia region each year" for sexual exploitation or cheap domestic labor, so the countries hit by the tsunami have been on high alert for traffickers trying to take advantage of the disaster. As part of their efforts to prevent the child-trafficking situation from worsening in the wake of the tsunami, the Indonesian and Sri Lankan governments have banned the adoption of children orphaned by the tsunami. More from MSNBC's report... [Mark Godsey]
Friday, January 7, 2005
CrimProf Orin Kerr's new article, Digital Evidence and the New Criminal Procedure, to be published in an upcoming issue of the Columbia Law Review, is the only Crim piece to make SSRN's Top 10 list for dowloads in the last two months. His piece has been downloaded nearly 700 times. The abstract states:
This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.
Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.
This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.
Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.
This Essay will proceed in three parts. Part One compares the basic mechanisms of traditional crimes and computer-related crimes. It explains how the switch from physical to electronic crimes brings a switch from physical evidence and eyewitness testimony to digital evidence, and how investigators tends to use very different methods of collecting the two types of evidence. Part Two turns from the facts to the governing law, focusing on the Fourth Amendment's prohibition on unreasonable searches and seizures. It shows that existing Fourth Amendment doctrine is naturally tailored to the facts of physical crimes, but that a number of difficulties arise when that doctrine is applied to the facts of computer crime investigations. Part Three argues that new rules are needed to govern digital evidence collection, and offers preliminary thoughts on what those rules might look like and what institutions should generate them. It also shows that courts and Congress already have begun responding to the problem of digital evidence with a number of computer-specific rules.
To obtain a copy of the paper, click here. [Mark Godsey]
According to the French media watchdog Reporters Without Borders, at least 53 journalists were killed in 2004 while either on the job or for expressing their opinions; this is the deadliest journalism has been in a decade. Unsurprisingly, Iraq proved to be the deadliest country for journalists and media assistants, with 31 of the 53 deaths. Asia was the second deadliest region. 6 journalists in the Philippines and 4 in Bangladesh were killed for investigating and exposing sensitive matters such as corruption, drug-trafficking and gangsterism. In South and Central America, 12 journalists were killed, and in Africa, 40 journalists were attacked or physically threatened in the Ivory Coast, alone, while at least a dozen media firms were censored. Throughout the world, at least 907 journalists were arrested and 1,146 were attacked or threatened, up from 2003 when 40 reporters were killed and 766 arrested. More from MSNBC's report... [Mark Godsey]
On January 5, The Abbey School in Kent, a school in Southeast England with students ranging in age from 11 to 19, implemented a new antidrug campaign which will allow random student drug testing. 20 students of the school's 960 will be randomly selected by a computer to have mouth swabs taken to detect cannabis, speed, ecstasy, heroin and cocaine. According to Peter Walker, the school's Head Teacher, students will not be tested against their will, and those testing positive will not be expelled with the exception of those found to be drug dealers. Walker told BBC reporters that 85% of parents agreed for their children to be tested, because government antidrug initiatives have been ineffective in preventing youth drug use. MSNBC reports: "Figures on the Home Office Web site, the latest available, say that for the year ending in March 2003, drug offenses recorded by police rose 16% over the previous year to 141,116," although officials believe the dramatic incline is a consequence of increased police activity. More... [Mark Godsey]
Here's a column on the reopening of the investigation of the lynching of Emmett Till, an Africam American boy from Chicago who visited Mississippi, where he was murdered for speaking freshly to a white woman. Background on PBS here. [Jack Chin]
Thursday, January 6, 2005
In South Africa, a woman is charged with falsely claiming to have been raped; she'd had consensual but unprotected sex and the hospital workers told her a rape claim was the only way she would get anti-retroviral drugs. [Jack Chin]
Andrea Yates, convicted of murder for drowning her children, has appealed on the ground that an expert who testified against her lied about being a consulting expert on the television show "Law and Order." According to the story:
"Yates' attorney Troy McKinney focused on expert witness Park Dietz, who McKinney said "told a whopper of a falsehood" when he said he consulted on an episode of the TV show "Law and Order" involving a woman found innocent by reason of insanity for drowning her children."
"Dietz testified the episode aired shortly before the drownings, and testimony during the trial indicated Yates was a viewer of the series."
"After jurors found Yates guilty, attorneys in the case and jurors learned that no such "Law and Order" episode existed. McKinney called the testimony the "dynamite" that had turned the tide of the trial against his client."
More here. [Jack Chin]
UPDATE: CONVICTION REVERSED. Story here. [Jack Chin]
Professor Mark A. Drumbl of Washington and Lee is this year's winner, along with Amanda Tyler of GW, of AALS' Scholarly Papers Competition. On Friday at the conference, he will present his winning paper, entitled "Collective Violence and Individual Punishment: The Criminality of Mass Atrocity," soon to be published in the Northwestern Law Review. The abstract to the paper states:
There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this foundational premise. First, I posit that the collective nature of the system criminality of mass violence is qualitatively different than the deviant nature of individual transgressions punished under ordinary domestic criminal law. Accordingly, borrowing from the national to ground the international simply is a convenient, although inappropriate, manifestation of path-dependency. Second, I evaluate the sentences issued by international criminal justice institutions. Surprisingly, although international tribunals have sentenced over 100 offenders over the past five years (and will sentence many more in the immediate future), very little evaluative research has been done on international sentencing. The purpose of this exercise therefore is to build an empirical research agenda with a view to assessing whether the punishment actually inflicted by international tribunals satisfies their avowed deterrent, retributive, and expressive aspirations. Third, based on the evidence, I propose a disarticulation between the effects of international sentencing and its aspirations. One explanation for this disarticulation is the absence of a sui generis theory of punishment for those who commit mass violence. Although there has been expansive institution-building in international criminal law, there has been little theoretical modeling. Unless the brick and mortar institutions are supported by a robust criminology, penology, and victimology, international criminal law will fall short. This Article then proposes several elements that could form part of this self-supporting theoretical and operational framework.
To obtain a copy of the paper, click here. [Mark Godsey]
Attorney General Nominee Gonzales Responds to Critics in Preparation for his Hearings before the Senate Judiciary Committee
CNN.com reports that Attorney General Nominee Alberto Gonzales' is expected to face rigorous questioning during his confirmation hearings before the Senate Judiciary Committee, scheduled to begin on January 6. More than 2 dozen civil rights and human rights groups, including the NAACP, Human Rights Watch, the ACLU, and Amnesty International, have urged aggressive questioning of Gonzales, particularly regarding his January 2002 memo advising the Bush administration that the Geneva Conventions do not apply to al Qaeda and Taliban members detained at Guantanamo Bay.
Senate Judiciary Committee Chairman, Senator Arlen Specter (R-PA) reportedly will allow outside witnesses to testify after Gonzales' testimony concludes. Aside from civil and human rights groups, many other groups and individuals, ranging from senators to military retirees, have already expressed their concerns. Earlier this week, a dozen high-ranking retired military leaders sent the Senate Judiciary Committee a letter expressing "deep concern" about Gonzales' nomination. Senator Patrick Leahy (D-VT), the Committee's ranking Democrat, submitted a statement of reservation stating that Senate Democrats see the hearings as a chance for "some accountability and for some answers that have been lacking from the administration about its policies on torture and about the prison abuse scandals." The Center for American Progress also issued a statement expressing reservations about Gonzales' nomination and urging Gonzales to clearly address whether President Bush is entitled to disregard international laws and treaties. The Center's demand comes in response to the Justice Department's new memo redefining the U.S.'s definition of torture, which fails to address this issue. (For background of the memo click here, and for a thorough analysis of the Justice Department's stance on criminal liability for torture, read Columbia Law Professor and Findlaw columnist Michael C. Dorf's Findlaw article The Justice Department's Change of Heart Regarding Torture.)
In response to the mounting criticism (according to a draft copy of a statement obtained by CNN), Gonzales plans to tell the Senate Judiciary Committee, "Wherever we pursue justice--from the war on terror to corporate fraud to civil rights--we must always be faithful to the rule of law. I want to make very clear that I am deeply committed to the rule of law...I will represent the United States of America and its people...I understand the differences between the two roles. In the former, I have been privileged to advise the president and his staff. In the latter, I would have a far broader responsibility: to pursue justice for all the people of our great nation; to see that the laws are enforced in a fair and impartial manner for all Americans." The full CNN.com story here... [Mark Godsey]
The Fourth Circuit recently held in Greenhouse v. MCG Capital Corp., 03-2318, available here, that a CEO's false statement in a publicly filed document that he had obtained a college degree is not a misprepresentation about a material fact under 10b-5. Although Judge Roger L. Gregory called the false statement "indefensible," he ruled that it was not likely to cause reasonable investors to devalue the stock when viewed against the total mix of true information available about the company and thus was not material. Full BNA story here. [Mark Godsey]
The United States has 72 juvenile offenders (offenders under the age of 18 at the time of their crimes) on death-row. In 1988, the Supreme Court banned executing offenders under 16 at the time of their crimes. Last October, the Court heard arguments to raise the age cut-off to 18, and we are currently awaiting the decision.
The New York Times reports, "Juries have in recent years been increasingly reluctant to sentence teenagers to death, and the number of death sentences imposed on juvenile offenders is now almost at the vanishing point. In 2003 and 2004, only two juvenile offenders were sentenced to death in the United States. The average annual number in the 1990's was slightly more than 10. From 1999 to 2003, according to a study to be published in The Journal of Criminal Law and Criminology, the number of juvenile death sentences per 100 homicide arrests of those under 18 dropped to 0.2 from 1.6."
The case before the Court, Roper v. Simmons, No. 03-633, involves Christopher Simmons, who was 17 when he was arrested for the murder of Shirley Crook. (New York Times background of the Simmons case is here.) The Missouri Supreme Court reviewed his case in 2003, nine years after his conviction, and decided that juvenile executions violate the Eighth Ammendment protection against cruel and unusual punishment using the "evolving standards of decency" test. As a result, Simmons' case was vacated. If the U.S. Supreme Court decides to ban executions of juvenile offenders, the lives of all 72 juvenile offenders on death-row will be spared. For links to the Missouri Supreme Court's decision, as well as op-eds and editorials about the Simmons case, click here. Talkleft's coverage of this story also has links to amicus briefs and scholarly articles about the death penalty for juvenile offenders. [Mark Godsey]
On January 4, The Department of the Interior and Local Government (DILG), reported that the Philippine National Police (PNP), a department within the DILG, earned a 90.4 crime-solution efficiency in 2004. The DILG is a supervisory office of the Philippine Government in charge of monitering local government agencies, such as the police departments, counter-insurgency units, and community development initiatives. The DILG, through the PNP, also reduced crime incidents in 2004 from 77,763 to 71,179, a 8.47% decrease from 2003.
The DILG reported a remarkable 70% decrease in the number of kidnap-for-ransom incidents as well, with 28 kidnapping incidents compared to 77 kidnappings in 2003. The PNP has solved 18 of the 28 incidents, producing a 64% crime solution efficiency rate. Additionally, in the government's campagin against illegal drugs, the DILG reported that 14,143 investigations were conducted, which neutralized five international drug rings and 83 local drug syndicates.
The DILG's Secretary, Angelo Reyes, said in 2005 the Philippine government will prioritize peace and order efforts by intensifying its anticrime campaign, strengthening its emergency response Call 117 project, enhancing local councils for the protection of women and children, and further developing local governments' capabilities to respond and prevent crime and environmental tragedies. More... [Mark Godsey]
In response to statewide problems in Texas crime labs of deficient training, contamination, mislabeling, and improper storage of DNA evidence, the Senate Committee on Criminal Justice held a meeting on January 4 with law enforcement officials, CrimProf Barry Scheck (co-founder of the Innocence Project), and two former prisoners, George Rodriguez and Brandon Moon, both of whom were exonerated after case reviews determined that their convictions were based on inaccurate DNA evidence. In particular, such problems in the Houston Crime Lab were so extensive that the lab's DNA department was closed in 2002, and the Harris County district attorney's office has reviewed and ordered retests of DNA evidence processed by the lab. The restesting, which began in March 2003 and involves evidence from about 400 cases, has already led to one exoneration.
Scheck told the Committee, "The time for effective statewide oversight of crime labs is here," and to implement such oversight, he advocated the drafting and approval of a bill creating a statewide commission with authority to moniter all Texas crime labs. Senator John Whitmire (D-Houston), who serves as chairman of the Committee, suggested the establishment of regional DNA labs for better regulation of DNA testing, but Houston Police Chief Harold Hurtt indicated that regional crime labs are not being pursued. Chuck Rosenthal, Harris County District Attorney, believes that all cases involving questionable DNA evidence have already been adequately reviewed, but remains open to creating a blue ribbon commission to review the Houston Crime Lab's problems. More... [Mark Godsey]
Wednesday, January 5, 2005
The Second Circuit held last week in Mungo v. Duncan, 03-2706, and here, that Crawford v. Texas does not apply retroactively for purposes of collateral attack. "It settles an issue that could have affected scores, if not hundreds of cases," said Mark Dwyer, chief of appeals at the Manhattan District Attorney's Office. Full story from Findlaw.com here. [Mark Godsey]