March 12, 2005
Retired NYPD Detectives Accused of Mob Hits
Charged in EDNY with 11 homicides or attempted homicides were retired Detectives Stephen Caracappa, formerly of the organized crime homicide unit, and movie actor/detective Louis Eppolito, son of Gambino soldier Ralph "Fat the Gangster" and co-author of "Mafia Cop: The Story of an Honest Cop Whose Family Was the Mob." Four or five of the murders took place when the officers were serving in the NYPD; the officers also allegedly provided information about informants and investigations. Arrested in Las Vegas where they moved, the men also face methamphetamine charges. [Jack Chin]
DNA Test Links Killer, then Four Years Old, to 1969 Murder UPDATED
The 1969 murder of University of Michigan Law student Jane Mixer led to an arrest in November, 2004 based on a DNA match. Mixer had been shot and strangled with silk stockings, but had not been sexually assaulted. Further DNA testing gave rise to startling results. According to the Detroit Free Press: "A 35-year-old murder mystery deepened Friday as a State Police scientist testified that DNA from two people was found on the body of a slain University of Michigan law student. One DNA sample was traced to the man charged with killing Jane Mixer in 1969 and the other to someone who was 4 years old at the time and who grew up to brutally murder his own mother." Story here. Follow up here. Perhaps the 4 year old was indeed at the crime scene somehow. Or, perhaps the profile identification is a false hit. In the former case, it is spooky and tragic; in the latter, it is, perhaps a crack in the idea that DNA (done right) is infallible. UPDATE: Curiouser and curiouser. The Detroit Free Press reports the defendant, Gary Leiterman, was bound over for trial. It also says that Leiterman's DNA found on Jane Mixer's pantyhose was from neither blood nor semen, and that she had not been sexualy assaulted before she was shot. It is hard to explain semen from a rape or blood from a fight, but if this DNA is saliva or nasal discharge from a cough, sneeze or spit, or skin cells, then the probabtive value is much diminished. [Jack Chin] SECOND UPDATE: There's now a book on the victim, Jane: A Murder, written by Jane Mixer's niece. Also, the trial of Gary Leiterman, scheduled for July, has been assigned to county judge Donald Shelton, who attended the University of Michigan Law School with the victim, but stated that he did not remember her.
CrimProf Spotlight: Texas Tech's Larry Cunningham
"I grew up on Long Island and went to college at John Jay College of Criminal Justice, one of the senior colleges of the City University of New York. I knew early on that I wanted to study and work in the criminal justice system. Originally, I thought about going the route of becoming a cop or getting a Ph.D., but then a series of internships convinced me to go to law school. I went to Georgetown where, apart from being scared to death by my CivPro and Contracts profs, I had a great time. I found my niche by taking small classes and seminars. The one-on-one interaction with faculty was priceless. I worked part-time as a backup reader to Judge David S. Tatel, a blind judge on the D.C. Circuit. What an amazing experience, to work directly with a brilliant and accomplished jurist. I was also fortunate to get into the Juvenile Justice Clinic, where I represented accused juvenile delinquents in D.C. Superior Court. That experience introduced me to juvenile justice, an interest which has carried over into my writing and teaching as a CrimProf. Following graduation, I clerked for Chief Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia where I was fortunate to work on a variety of cases. From there, I served as a prosecutor in the Alexandria,Virginia, Commonwealth Attorney's Office, where my primary responsibility was to prosecute juvenile offenders. This experience was amazing because it gave me the opportunity to try cases (a great thrill!), to make a difference in my community, and to further study the juvenile justice system from the trenches. After 2 years in the position, I decided to leave the trenches and join the faculty of Texas Tech Law School. One should keep in mind that this New York boy had not set foot in the state of Texas until the day he interviewed in Lubbock. Although the adjustment to Lubbock has been challenging at times, I have really enjoyed teaching. I primarily teach in clinic, however I also teach Criminal Law to 1Ls and an elective course to upperyears. Last year, I ran our Criminal Prosecution Clinic. This year, I am running our Criminal Justice Clinic. My primary areas of scholarship interest include juvenile justice, ethics (particularly police and prosecutorial ethics), criminal law, and assorted random subjects like canon law, animal law, and Indian law. This Fall I am developing a course called "Criminal Prosecution: Ethics and Skills." As the name sounds, the course will combine discussion and training in ethics as well as the skills that prosecutors need on a day-to-day basis. This summer, I will be visiting at Stetson University College of Law, teaching Criminal Law.
On a personal level, I am the proud owner of two cats and a dog (pictures here: they are my "babies.")
My articles include:
Hitting the Ground Running: The Use of Boot Camps and Pre-Semester
Orientation Periods in Clinics and Externships, ____ MISS. L.J. ____
(forthcoming Spring 2005)
The Case Against Dog Breed Discrimination in the Provision of Homeowners' Insurance, 11 CONN. INS. L.J. 1 (2004-5).
Substantive Limitations on the Power of Family Courts to Commit Delinquent Juveniles to State Custody: Analysis and Critique, 55 SYRACUSE L. REV. 87
When Lawyers Break the Law: How the D.C. Court of Appeals Disciplines
Members of the Bar Who Commit Crimes, 6 U.D.C. L. REV. 9 (2002)
Deputization of Indian Prosecutors: Protecting Indian Interests in Federal Court, 88 GEO. L.J. 2187 (2000)
Taking on Testilying: The Prosecutor's Response to In-Court Police
Deception, 18 CRIM. JUST. ETHICS 26 (Winter/Spring 1999)
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.
That's the Way the Cookie Crumbles: Father Ticketed for Selling Girl Scout Cookies
Police in New York ticketed a father who set up a table of Girl Scout cookies on a Brooklyn sidewalk. The officer claimed the man lacked the proper license to sell the cookies. The suspect's 13 year-old daughter defended her father saying he was only trying to help her organize and deliver pre-ordered cookies in the neighborhood. Deputy Commissioner Paul Browne remains adamant that, “No Girl Scouts were seen by officers at the time the summons was issued.” The Girl Scout, Grace Marie Louis, who sold 600 boxes of cookies and is helping to send her troop to Hawaii or Europe with her cookie earnings, was preparing the orders while her father set up the table. A judge will determine the father's fine. The Full Story... There are no reports as to whether the ticketing officer's daughter is in a rival troop. [Mark Godsey]
March 11, 2005
CrimProfs Comment on the News
U Maryland CrimProf Doug Colbert commented on the admission of other bad acts evidence in the molestation trial of a defrocked priest; under the circumstances, it created an issue for appeal he said. Texas CrimProf Jordan Steiker spoke about the Supreme Court's application of global standards in death penalty cases. Also from UT, Charles Silver commented on a doctor's decision to represent herself in a criminal appeal. "There are reasons why people use lawyers in court," said Silver, who is not familiar with this case. "Lawyers know how to do it better." Southwestern CrimProf Robert Pugsley commented on Robert Blake's decision not to take the stand in his murder trial. GW's Paul Butler comments on the case of a former Senate staffer asking for a criminal investigation, alleging that unfair outside influences caused his failure to be hired by--get this--a lobbying firm. [Jack Chin]
Breaking News: Georgia Courthouse Shooting
Judge Rowland Barnes and a court reporter in the Fulton County (Atlanta) Courthouse were killed by an escapee, Brian Nichols, facing rape charges. Nichols grabbed a gun from a courtroom deputy, held the courtroom hostage, and then shot the judge and court reporter before taking off through the stairwell. He hijacked a car outside of the courthouse and is still on the lamb. Bashman has several links to it here. [Jack Chin, thanks to Dillon Fishman for the pointers.]
New Case: Confrontation, Craig and Two-Way Television
The Eighth Circuit recently held in U.S. v. Bordeaux (here and here), that testimony by a victim in a criminal trial via two-way closed circuit television must be scrutinized under the Craig factors to determined if it comports with the Confrontation Clause. The Eighth Circuit thus disagreed with the Second Circuit's reasoning in United States v. Gigante, 166 F.3d 75 (2d Cir.1999), cert. denied 528 U.S. 1114 (2000). In Gigante,
the Second Circuit stated that "because [the district judge] employed a
two-way system that preserved the face-to-face confrontation ..., it is
not necessary to enforce the Craig standard in this case." Id. at 81. Responding to Gigante, the Eighth Circuit stated: "[T]wo-way closedcircuit
television is not constitutionally equivalent to a face-to-face
confrontation. 'Confrontation' through a two-way closed-circuit
television is not different enough from 'confrontation' via a one-way
closed-circuit television to justify different treatment under Craig.
It is true that a two-way closed-circuit television creates an
encounter that more closely approximates a face-to-face confrontation
than a one-way closed-circuit television does because a witness can
view the defendant with a two-way system. But two-way systems share
with one-way systems a trait that by itself justifies the application of Craig: the 'confrontations' they create are virtual, and not real in the sense that a face-to-face confrontation is real. The virtual 'confrontations' offered by closed-circuit television
systems fall short of the face-to-face standard because they do not
provide the same truth-inducing effect. The Constitution favors
face-to-face confrontations to reduce the likelihood that a witness
will lie. 'It is always more difficult to tell a lie about a person 'to
his face' than 'behind his back." ' Coy v. Iowa, 487 U.S. 1012, 1019 (1988).
Given the ubiquity of television, even children are keenly aware that a
television image of a person (including a defendant in the case of a
two-way system) is not the person something is lost in the translation.
Thus, a defendant watching a witness through a monitor will not have
the same truth-inducing effect as an unmediated gaze across the
courtroom." [Mark Godsey]
A Louisiana man, convicted of rape when he was 16, has been conclusively exonerated by DNA after 24 years in prison and released. A Maryland woman received probation for a conviction for making a false rape report; the sentencing judge noted that the person falsely accused could have been imprisoned for life; there's another false rape case from Pennsylvania. A column in the St. Petersburg Times supports more efforts to prevent wrongful convictions. [Jack Chin]
LawProf Targetted by Anti-Semites
Over at Volokh is the story of a UCLA law professor (Volokh himself) who was asked to comment for a racist blog; when he refused, the racist blog spent a whole bunch of entries making anti-semitic remarks about him and speculating about the race of members of the UCLA law faculty. There's also some discussion in the thread of professors at certain other schools and whether or not they are Jewish, although the word "Jewish" is rarely used. Here's the Insidehighered.com story.
Recent Attacks on Judges
Here's a list of recent attacks on judges or their families. [Mark Godsey]
Political Influence and Wrongful Conviction in Chicago
In Illinois State Police Lieutenant assigned to investigate the potential wrongful conviction of two men for murder claimed he was stopped from investigating the real suspect because of the suspect's connections to then Illinois Governor George Ryan. Two men were convicted for the 1986 murder of a newlywed couple; one has since been released from death row on a habeas petition and was not retried; the other is still trying to get out. The allegations came in the context of the lieutenant's civil suit against the department for demoting him, he says, in retaliation for his pursuit of the real killer. Oped here. [Jack Chin]
Ninth Circuit False Evidence Case
The en banc Ninth Circuit last week held that a defendant was entitled to a new trial because the lawyer for the key witness against him made a deal with the prosecutors, but did so in such a way that the witness could truthfully testify that no deal had been reached. The judge, jury and the witness himself were not told that the conseqence of the incriminating testimony would be that charges against the witness would be dropped. Story here, opinion here.
A Twist in the Lefkow Case: Alleged Murderer Commits Suicide
UPDATE: DNA on cigarette butts found at the Lefkow home match Ross's DNA. Story here. [Mark Godsey]
Chicago and federal law enforcement officers are investigating the link between a man who committed suicide Wednesday in Wisconsin and the slayings of Judge Lefkow's husband and mother. The man, identified by vehicle registration as Bart Ross, shot and killed himself while pulled over by the police for driving a vehicle without tail lights. Police in the Wisconsin town West Allis had been following the car after seeing it parked next to a school, noticing its out-of-state Illinois license plates, and becoming suspicious. When the officer pulled over the vehicle, the driver shot and killed himself, as the officer was standing next to the vehicle. When the vehicle was searched, police discovered a suicide note claiming responsibility for the murders, and 300 .22-caliber shells--the same caliber of the three casings found in the Lefkow home. Aside from the suicide note in Ross's vehicle, WMAQ-TV in Chicago also received a handwritten letter signed by Ross describing in detail the Lefkow slayings--including that he broke into the house at 4:30 a.m., waited in the utility room all day, and had the intention of killing Lefkow and anyone else present. Judge Lefkow previously had ruled against Bart Ross, denying him recovery in a medical malpractice suit. The Associated Press reports: "Last September, Lefkow dismissed a civil rights lawsuit in which Ross claimed doctors at the University of Illinois-Chicago Hospital and its clinic had disfigured him, damaged his mouth and caused him to lose his teeth when they treated him for cancer from 1992 to 1995. Among other claims, Ross alleged doctors committed a ''terrorist act'' against him by giving him radiation treatment without his consent. He represented himself in the lawsuit. Defendants included the federal government, the State of Illinois, five doctors and four attorneys who had taken part in an earlier Ross lawsuit that was dismissed by another judge. Ross was also about to face eviction from his home, according to Cook County Sheriff's spokesman Bill Cunningham. A lawsuit was filed in housing court Feb. 23 seeking to evict Ross, and sheriff's deputies tried three times in early March to serve Ross with court papers. The case was due in court Thursday. Police have been unable to find any of the man's family. Chicago police Thursday cordoned off the street outside Ross' last-known address, a two-story home across from a high school on a tree-lined street on the city's North Side." The full story from the Associated Press and NYTimes [Mark Godsey]
March 10, 2005
LA Times Editorial: Bush Doubts on Death Penalty
Editorial here. [Jack Chin]
No Shih Tzus Allowed
Lawyers prosecuting Albert K. Smith, who is accused of shooting his ex-wife's boyfriend to death, seem to have been a bit overzealous with their subpoenas. Prosecutors subpoenaed everyone with whom Albert Smith had contact while in prison awaiting his murder trial. Apparently Smith wrote his pooch, named Murphy Smith, a letter from jail, landing the 5 year-old shih tzu's name on the witness list. Prosecutor's realized the faux pas when Murphy was brought to court by the defendant's brother to answer the subpoena, but was not allowed to enter the courthouse, because of the "No Dogs Allowed" rule. Prosecutor Robin Green apologized to Smith's brother for the inconvenience and added, "The dog was friendly enough and probably would have been a very cooperative witness." MSNBC.com's story [Mark Godsey]
Screening of "Countdown to an Execution" Tonight at NYU
Details here. [Mark Godsey]
New Article Spotlight: Jury Decision Making After Blakely
James J. Prescott, recent Harvard Law grad and current Olin Fellow at Michigan Law, and Sonya Starr, recent Yale Law grad and Associate Legal Officer for the International Criminal Tribunal of the former Yugoslavia, have posted Improving Criminal Jury Decision Making After the Blakely Revolution on SSRN. Here's the abstract:
The shift in sentencing fact-finding responsibility triggered by Blakely v. Washington will dramatically change the complexity and type of questions that many juries will have to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle these new tasks effectively - and, if not, what can be done about it. The literature addressing Blakely and jury reform advocates have essentially ignored these questions - yet absent reform, a number of limitations on juror decision making seriously threaten the accuracy of verdicts and the fairness, effectiveness, and credibility of the criminal justice system. In this essay, we assess juries’ capacity to handle their new post-Blakely responsibilities, considering problems of cognitive overload, frustration and loss of motivation due to complex structures, difficulties evaluating certain kinds of evidence juries do not ordinarily consider, distortions due to the framing of non-binary questions, and deliberation-related biases, among others. We then propose a model for sentencing-stage jury proceedings that would minimize these problems. Its components include bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures.
To obtain the paper, click here. [Mark Godsey]
Can Pregnant Women Who Ingest Drugs Be Charged With Delivering Drugs to a Child?
Texas Tech CrimProf Larry Cunningham and student attorneys from the Texas Tech Criminal Justice Clinic filed an appeal last week on behalf of Tracy Ward and Rhonda Smith, two women accused and convicted of delivering a controlled substance to a child. The twist to this case is this: The children were fetuses at the time of the alleged delivery. Potter County prosecutors utilized a new Penal Code definition of "person" (which now includes a fetus). They said that the women delivered drugs to persons---their fetuses--- because the women ingested drugs while pregnant. Cunningham argued in the clinic's March 3rd brief that the state legislature never intended for this new definition to apply to pregnant women. In fact,the bill made specific exceptions in other areas of the law. The bill in question -- S.B. 319 -- was intended to punish third-parties for criminal actions against pregnant women. The brief also argues that the prosecution violates due process, Roe v. Wade, and constitutes cruel and unusual punishment. The State's brief is expected April 3. Argument is expected sometime this Summer or in the Fall. More . . . [Mark Godsey]
Criminal Procedure Professors Asked to Join Appellate Support Network
The National Legal Aid and Defender Association (NLADA) is initiating the Appellate Support Network, a project that connects criminal procedure academics with public defenders working on important federal appellate matters. The network is composed of criminal procedure professors that are available to provide assistance to public defenders on significant issues in front of the Supreme Court and U.S. Courts of Appeals. The professors provide a limited number of hours of assistance on a case, and they are considered of counsel and have the option of co-signing the brief. More information on the Appellate Support Network is available at http://www.nlada.org/TestingGround/Appellate_Network.
If you are interested in participating in the Appellate Support Network, please send your contact information along with your areas of expertise to Adam Neufeld at email@example.com. [Mark Godsey]
March 9, 2005
Trial Begins of the Truck Driver Charged with the Deaths of 19 Illegal Immigrants
The trial of Tyrone Mapletoft Williams, the 34 year-old Jamaican truck driver charged for the deaths of 19 illegal immigrants, began on Tuesday. Williams accepted $7,500 for transporting dozens of Mexican and Central American illegal immigrants from the Mexican border through a customs checkpoint to a truck stop in Victoria, Texas, in May 2003. When he found the dead immigrants in his truck, he went to a hospital in Houston, complaining of extreme stress from finding the bodies, where he was later arrested. Williams' lawyer admitted that Williams was guilty of transporting the illegal immigrants, but was not culpable for their deaths because he didn't know that so many people crammed into his trailer. An estimated 100 people crowded into the trailer for a three hour trip with nearly no oxygen. The immigrants punched the lights out in the trailer to get more oxygen, while Williams, who doesn't speak Spanish, allegedly ignored their shouts for help. Williams reportedly did stop three times to pass water to the passengers through the hole they created in the trailer. Of the 14 people indicted in the crime, Williams is the only one facing the death penalty. More from NYTimes... [Mark Godsey]