January 15, 2005
China to Outlaw Sex-Selective Abortions
Story here. [Jack Chin]
Rapist asks for Longer Sentence
A vicious serial rapist active in Ohio who was caught through DNA asked for more time than his 50 year plea bargain, and got 68 years. According to CNN: "The deal was for 50, and he asked for more," defense attorney Terry Sherman said. "He made a statement that he doesn't deserve to ever get out." Of course, since he's 42, 50 years would probably be a life sentence anyway. [Jack Chin]
CrimProf Spotlight: Chase Law's Michael J.Z. Mannheimer
"For as long as I can remember, I have been interested in constitutional law, and was a fierce proponent of civil liberties. When I was sixteen, I wrote a letter to my local newspaper criticizing the then-recent Supreme Court decision in T.L.O. v. New Jersey. A blurb about me in my high school newspaper when I graduated stated that my career goal was to be a “constitutional lawyer.”
I received a B.A. in Philosophy and Political Science in 1991 from the State University of New York at Binghamton. I went on to Columbia Law School, where I was a Harlan Fiske Stone Scholar all three years and became Writing & Research Editor of the Columbia Law Review, receiving my J.D. in 1994. Along the way, I realized two important things: first, there is no such thing as a “constitutional lawyer”; and second, the interpretation of the Constitution that leads to the greatest amount of individual liberty is not always the correct one. Both of these realizations led me to decide that I would do the next best thing to becoming a “constitutional lawyer” and become a constitutional law professor.
But first, I needed to get some experience under my belt. After a brief stint with the Criminal Appeals Bureau of the Legal Aid Society in New York City, I clerked from May 1995 to July 1996 for the Hon. Sidney H. Stein of the U.S. District Court for the Southern Division of New York. Then, from August 1996 to July 1997, I clerked for the Hon. Robert E. Cowen of the U.S. Court of Appeals for the Third Circuit. At the end of my second clerkship, I decided to give the big-firm life a try, so from 1997 to 1999, I was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York City. I again delved into the intricacies of constitutional law when I had the opportunity to assist the late Hon. A. Leon Higginbotham, Jr., who was of counsel to the firm, with his testimony before the U.S. House Judiciary Committee with regard to the proposed Articles of Impeachment against then-President Clinton in 1998, on the issue of whether the commission of perjury in all instances constitutes a “high crime and misdemeanor.”
When I tired of big-firm life, I decided to go back to doing criminal appeals. In 1999, I joined the Center for Appellate Litigation, a non-profit group in New York City representing indigent criminal defendants on appeal from their convictions and in collateral proceedings. There, I briefed and/or argued over forty appeals in the New York Supreme Court, Appellate Division, First Department, the New York Court of Appeals, and the U.S. Court of Appeals for the Second Circuit. I had the opportunity to represent clients at every level of the state and federal judiciaries, from handling sentencing proceedings, motions, and hearings in the New York trial courts to filing a petition for a writ of certiorari in the U.S. Supreme Court.
My experience doing criminal appeals was at once challenging and supremely frustrating. It was challenging because of the interesting and complex legal issues that arose in nearly every case I handled. It was frustrating because that complexity was often not fully grasped by the attorneys who had tried the cases, who therefore sometimes left me with a less-than-optimal record on appeal, or by the state appellate judges who heard the appeals, who were institutionally opposed to reversing convictions, even when the alternative was to disregard the record or ignore the rule of law. But my five years in this line of work both introduced me to many of the unresolved issues in the field of constitutional criminal procedure and afforded me enough time to research and write about some of these issues, allowing me to publish an article on coerced confessions [Coerced Confessions and the Fourth Amendment, 30 Hastings Const. L. Q. 57 (2002)], which, in turn, helped me to land my current position at Chase.
Currently, I teach criminal law, criminal procedure, and a seminar on the death penalty. My current scholarship focuses on the Self-Incrimination Clause. Specifically, I am looking at how the Supreme Court has uniformly permitted the litigation of disputes over claims of the privilege without distinguishing among the differing fora in which the privilege is raised, despite the Clause’s limitation to “criminal case[s].” I hope to publish the results as a pair of articles entitled “Ripeness of Self-Incrimination Clause Disputes” and “The Self-Incrimination Clause in the Grand Jury Room.” I am also working on a piece on the federal death penalty, tentatively entitled “When the Federal Death Penalty Is ‘Cruel and Unusual’: A Neo-Federalist Approach,” which will address whether the Cruel and Unusual Punishments Clause would be interpreted more stringently in this context than when a state death penalty statute is concerned. My other published works are Equal Protection Principles and the Establishment Clause: Equal Participation in the Community as the Central Link, 69 Temp. L. Rev. 95 (1996), and Note, The Fighting Words Doctrine, 93 Colum. L. Rev.1527 (1993)."
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.
New Article Spotlight: Born Again on Death Row
William Payton was convicted in 1981 of capital murder. In the penalty phase of his trial, Payton's counsel argued that Payton should not be executed because he had experienced a profound religious conversion in prison. After the prosecutor argued that Payton's religious conversion could not be considered as mitigating evidence under California law, the jury sentenced Payton to death. Payton's challenge to his conviction (based primarily on the prosecutor's penalty phase argument) will be decided this term by the Supreme Court. And while Payton's pending appeal will turn on technical issues, the case raises deep questions about the relevance of post-offense conduct such as a death row religious conversion. This paper first argues that Payton's religious conversion is plainly legally relevant, if only because it suggests that he will be less dangerous in the future. The more difficult questions are whether the conversion is practically or morally relevant. After surveying empirical data about capital juror decision-making, the paper concludes that a death row religious conversion can be significant to jurors, but only if the conversion is accompanied by a repentant acceptance of responsibility. The paper then argues that jurors' intuitions are consistent with punishment theory, and that a repentant acceptance of responsibility and a sincere desire to atone for the defendant's wrongs - both of which may be the products of a genuine religious conversion - lessen a defendant's desert.
To obtain the paper, click here. [Mark Godsey]
Perjury Trial for Cop Begins in Tulia Case: UPDATE: CONVICTION
The perjury trial of a former Texas police officer, Tom Coleman, began yesterday with jury selection. In a case that has gained international attention, Coleman is accused of having fabricated drug charges against a high percentage of Tulia's African American residents. Most of the innocent individuals he charged have subsequently been exonerated. Coleman's jury consists of 11 whites and one Hispanic. In a Sixty Minutes interview of Coleman that aired a year or two ago, Coleman came across, not surprisingly, as an unabashed racist, and when confronted with his frequent use of the "N" word, claimed there was nothing wrong with his use of the word. Full story . . . More at gritsforbreakfast here and here.
UPDATE: Conviction on one count of perjury, jury recommends probation. [Mark Godsey]
January 14, 2005
New Case: Ninth Circuit Says "Knock and Announce" Rule Can Be Satisfied by Appropriate Announcement Without "Knock"
The Ninth Circuit ruled this week in U.S. v. Combs (and here) that the principles of the "knock and announce" rule were satisfied even though the officers in question failed to knock before executing a search warrant at a home. Rather than knock, the officers loudly announced their presence and their possession of a search warrant from the street via the patrol car's loudspeaker. When no one came to the door, they broke the door down with a battering ram and found the defendants and a meth lab inside. The officers justified their failure to knock, in essence, by explaining that active meth labs can explode, and they did not want to position officers close to the house any longer than they had to.
This case is interesting to me because it seems like none of the exceptions listed in Wilson were present (although the Wilson list is not exhaustive). There is no indication that the officers believed they would be met with bullets if they knocked, no indication that they feared the inhabitants would destroy evidence if they knocked, and it was not a hot pursuit case. The court noted that the occupants of the home had covered their windows with paper and had installed a security camera on the outside of the house, but these facts simply corroborated the tip that the occupants were doing something illegal inside. These facts alone should not give rise to a reasonable suspicion that the officers would be met with bullets if they knocked. Rather, the justification seemed to be that the officers did not want to stand near the door longer than they had to because they believed an active meth lab was inside. But the meth lab seems to have been in operation for an extended period of time without having blown up. An officer could have run up the sidewalk, knocked and announced and then quickly retreated to the street if he truly feared an explosion. The state's interest in dispensing with the knock requirement seems minimal, as the chance of an explosion occurring during the second or two it would take to knock and announce seems minuscule (not to mention that the explosion would have to be of a magnitude to cause injury to those standing outside the home in order for the stated "officer safety" rationale to be triggered). And, on top of all that, the officers were planning to search the home anyway knowing a meth lab was inside. How does a knock on the door substantially increase the risk to the officers given the extended period of time that they were already planning to spend inside the home? Moreover, several officers stood by the door anyway while another officer announced their presence via loudspeaker from the street. Thus, the officers' own actions seem to belie the fact that a knock was not feasible. My feeling is that the officers decided to be cowboys and announce their presence in a dramatic fashion, and then attempted to justify their failure to knock after-the-fact.
One might argue that an announcement via loudspeaker accomplishes the same thing as a full "knock and announce," so requiring the notice to come from the sound of a hand rapping on wood (or doorbell) rather than vocal chords and loudspeaker trivializes the 4th Amendment. But a knock on the door is more clearly directed at the inhabitants of the home than street noise. Here, the officers actually announced the address of the home they were intending to search over the loudspeaker, which could perhaps take care of that problem. But still, people are conditioned to tune out "street noise" without really listening, and conditioned to mentally register knocks on doors.
An additional and more interesting problem, as I see it, is that the method used by the police alerted the entire neighborhood. If the police were executing a search warrant at my house, I would rather them discreetly knock and announce at my front door rather than let the entire street know that I "might" be in trouble. This is particularly true when the PC is developed, as it was in this case, through an anonymous tipster who might be dead wrong. Whether this additional invasion of privacy by exposing to the neighborhood what is going on is recognized in the "totality of the circumstances" in deciding whether the means of entry was reasonable is an interesting question. If so, I am not sure that the state's minimal-to-nonexistent interest in avoiding a discreet knock outweighed the defendant's privacy interest in avoiding a publicly-announced search. [Mark Godsey]
Florida Supreme Court Considers Narcotics Canine Reliability
I always tell my Criminal Procedure class that narcotics-sniffing dogs should be subjected to the same 4th Amemdment reliability standards as other "tipsters." A dog who has consistently falsely alerted in the past should be considered like an informant whose tips have repeatedly not panned out. The Supreme Court of Florida is considering this issue currently, as a defendant is arguing that the narcotics that a canine named "Razor" found on him should be suppressed on the ground that Razor has been so unreliable in the past that his "alert" with respect to the defendant did not give rise to probable cause for the search. Currently, no national standards exist to measure canine competence. More . . . [Mark Godsey]
Criminal Law in Virginia
Here's a fascinating article from the New York Times about the sentencing structure in Virginia; it takes into account factors linked to recidivism such as sex and age. So young men get higher sentences than old women, say, for the same offense. Grits for Breakfast has a comment, as does CrimLaw, which says the Times gets it a bit wrong. Virginia law also has no presumption that a criminal statute has mens rea, the CrimLaw blog informed me. TalkLeft reports that Virginia is considering criminalizing failure to report a miscarriage, which would presumably be a strict liability crime because it lists no mens rea term. UPDATE: If this blog is right, the miscarriage bill will be amended to apply onlu to stillborn full term births. [Jack Chin]
First Prosecution Under Federal Animal Cruelty Law
From MSNBC.com: "A man who sold pit bull fight videos to investigators is the first person to be tried under a 1999 federal animal cruelty statute. As the trial opened Tuesday, the lawyer for Robert Stevens, 61, of Virginia, said the dogfight videos, including one of pit bulls attacking hogs, are protected under the law because the depictions of 'old-time dogfights' have historical value. Stevens’ lawyer, Michael Novaro, does not dispute that Stevens sold the tapes. But he said the first case under the law banning the interstate transfer of videos showing animal cruelty ignores an exemption for videos with 'religious, political, scientific, educational, journalistic, historical or artistic value.' Novaro also said the tapes do not violate the statute’s intent to prevent 'wanton cruelty to animals designed to appeal to a prurient interest in sex.' President Clinton signed the law after complaints about videos in which small animals were pictured being crushed under the feet of women wearing spiked heels. Novaro said the sexual description doesn’t apply to Stevens’ fight montage videos and a video that shows pit bulls attacking hogs.
The prosecutor, Stephen Kaufman, said in court filings that all 50 states have banned dog fighting and society has 'a strong interest in the humane treatment and protection of animals, including dogs trained to fight other dogs and hogs.'” More . . . [Mark Godsey]
New Yorker Article on Arizona Frame-Up
Jeffrey Toobin writes in The New Yorker about Ken Peasley, a former Pima County Deputy County Attorney recently disbarred (Arizona Supreme Court opinion here) for hiding evidence in two capital cases. Toobin suggests that another Peasely case could represent a wrongful conviction. Talkleft has a link to a pre-publication copy of the article. [Jack Chin]
New Article Spotlight: Capital Punishment and Jewish Law
Irene Merker Rosenberg and Yale L. Rosenberg of Houston have posted Of God's Mercy and the Four Biblical Methods of Capital Punishment: Stoning, Burning, Beheading and Strangulation on SSRN. The article was recently published in the Tulane Law Review. The abstract states:
In this article Professors Irene and Yale Rosenberg analyze capital punishment under Jewish Law, focusing on the four biblical death penalties: stoning, burning, beheading, and strangulation. To modern sensibilities these methods of execution may appear barbaric, especially as compared to the modern death by lethal injection. As with most of Jewish Law, however, one cannot read the Bible without reference to the Talmud. The Talmud makes it clear that because of various evidentiary, procedural and substantive barriers to conviction it is almost impossible to impose the death penalty.
The Talmudic discussions of the death penalties reveal that the Sages stressed the need for a favorable death, one that would not unnecessarily prolong the death agony nor subject those undergoing execution to indignity. Finally, the authors compare the Jewish Law of capital punishment with that of the United States. They conclude that although Jewish Law seems harsher, in fact it prevents innocent people from being executed and emphasizes the sanctity of life.
To obtain a copy of the paper, click here. [Mark Godsey]
Classroom Hypotheticals Unfortunately Happen Every Day: Another Murder by Omission
A woman in Florida is charged with murder for failing to stop her 12-year-old son from abusing and killing a 3-year-old boy. The woman's duty of care to the infant arose because she had agreed to care for him while his parents were on a business trip. More . . . [Mark Godsey]
Profile of 33-Year-Old Attorney Who Won Crawford and Blakely
He has less than 5 years of professional experience, but in the last several months Seattle attorney Jeffrey Fisher has argued and won two groundbreaking cases before the Supreme Court--Crawford and Blakely. Profile and details here. [Mark Godsey]
January 13, 2005
Two Men Arrested For Telling Lawyer Jokes
From Law.com: "Did you hear the one about the two guys arrested for telling lawyer jokes?
It happened this week to the founders of a group called
Americans for Legal Reform, who were waiting in line to get into a Long
Island, N.Y., courthouse. 'How do you tell when a lawyer is lying?' Harvey Kash reportedly asked Carl Lanzisera. 'His lips are moving,' they said in unison.
While some waiting to get into the courthouse giggled, a lawyer farther up the line Monday was not laughing.
He told them to pipe down, and when they did not, the lawyer
reported the pair to court personnel, who charged them with disorderly
conduct, a misdemeanor. 'They just can't take it,' Kash said of lawyers in general. 'This violates our First Amendment rights.' Dan Bagnuola, a spokesman for the Nassau County courts, said
the men were 'being abusive and they were causing a disturbance.' He
said he did not have the name of the lawyer who complained.
Americans for Legal Reform monitors the courts and uses confrontational tactics to push for greater access for the public. The pair said that for years they have stood outside courthouses on Long Island and mocked lawyers." Story . . . [Mark Godsey]
Dayton Becomes First U.S. Law School to Offer 2-Year JD
Press release here. [Mark Godsey]
Booker and Fanfan
Go to our sister blog Sentencing Law & Policy for insights into Booker and its aftermath. Doug Berman, editor of the blog, is THE Booker authority, and his blog is even cited in the opinion. [Jack Chin]
New Case: Reasonable Expectation of Privacy in a Locked, Public Restroom?
The Eighth Circuit held this week in U.S. v. Hill that the defendant did not have a reasonable expectation of privacy in a convenience store restroom that he had entered and locked. The defendant had entered the restroom with a woman, and the store clerk called the police when he suspected the couple was having sex therein. After the police arrived a few minutes later and knocked several times and received no response (but heard belt buckles, etc.), they picked the lock on the door and found the defendant in a state of semi-dress (with a woman) and with illegal narcotics surrounding him. Important to its holding were the facts that the restroom was located in a commercial establishment, that he shared the restroom with another person, that he used the restroom for a purpose other than for its intended use, and that he did not exit the restroom after having been asked several times. Thus, any expectation of privacy that he might have enjoyed when he first entered the restroom had expired by the time the police arrived. The court stated that some customers who remain in a public restroom for extended periods of time, such as ill or handicap persons or a parent helping a child use the restroom, might retain their expecation of privacy througout the extended duration of their restroom visit.
A few parts of the decision were a little confusing. For example, the court also mentioned that the store clerk had authority to consent to the search, but the facts do not indicate that the clerk in fact consented. There was very little analysis on that point. The decision seems to be based on a lack of a reasonable expectation of privacy rather than on valid consent by the store clerk. Also, the court's analysis suggested that the defendant and his lady friend had been asked to leave the bathroom several times (presumably by the store clerk), but the facts do not reflect this.
All in all, it seems like the right result. While I would say that a person has a reasonable expectation of privacy upon entering a public restroom and locking the door, one who does so with another person, remains inside for an extended period of time, and the ignores requests to leave without offering an excuse (like "I'm sick") would have to expect that he is wearing out his welcome and that the store owner or someone else might bust in at any moment to see what is going on. Thus, the expectation of privacy is eroded by the subsequent events. [Mark Godsey]
New Article Spotlight: Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts
This article, part of a symposium on prosecutorial discretion, uses the Martha Stewart case to look more closely at the various types of discretion prosecutors wield. Unlike some other commentators, we are not persuaded that the case against Stewart was brought in bad faith or that it was unwarranted at its core. As we discuss in the first part of this article, prosecutors had ample reason for investigating her conduct and charging her with a crime. At the same time, for reasons advanced in the second section of this article, other prosecutorial decisions made in her case give us greater pause. In particular, we critique an aspect of the Stewart prosecution that has yet to be the subject of sustained analysis, having to do with a phenomenon that we call "redundant charging." That phrase refers to the prosecutor's nearly unrestricted ability to manufacture closely related charges based on the same course of conduct. In Stewart's case, a single coverup resulted in five separate charges, and in fact the prosecutors were conservative in their approach. Under existing case law, for instance, prosecutors could have charged each of Stewart's discrete lies as a false statement and as obstruction of justice, for a total of 22 counts. How is this possible? And what are the consequences? We explore the answer to these questions by looking at three possible sources of limitation on redundant charging: the federal criminal code, the Constitution, and the Federal Sentencing Guidelines. The federal code places virtually no restraints on redundant charging; rather it creates and exacerbates the problem. The Supreme Court's current approach to the double jeopardy prohibition is equally impotent in this context. Finally, the Sentencing Guidelines only work their count-collapsing magic after conviction, when much of the damage from redundant charging has already occurred. For reasons discussed in the article, if the goal is obtain convictions that are based on a unanimous jury finding of guilt beyond a reasonable doubt and plea agreements that reflect the real culpability of the defendant, redundant charging must be cabined. In a perfect world, the problem would be fixed by Congress, as part of a larger project of legislating a comprehensive and coherent criminal code. Such a code could, akin to Chapter D of the Federal Sentencing Guidelines, contain rules about duplicative charging. A further, marginal incentive to avoid such charging could be provided by modifying the definition of same offense for purposes of double jeopardy analysis toward a same-conduct or same-transaction test. But neither of these developments is likely. Therefore, we briefly advance a proposal that is perhaps not quite as bold but is more attainable: we suggest that the courts use their common law power to create a "law of counts." The authority to develop this law could come from the due process clause, separation of powers doctrine, or administrative law.
To obtain a copy of the paper, click here. [Mark Godsey]
Center Spotlight: U. Miss National Center for Justice and the Rule of Law
This is the first in what will be a continuing series of posts on criminal law centers, programs and institutes at law schools. If you would like your center profiled, please let us know. [Jack Chin]
THE NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW
University of Mississippi School of Law / P.O. Box 1848 / University, Mississippi 38677-1848 / Phone: 662-915-6897 / Fax: 662-915-6842 / E-mail: NCJRL@olemiss.edu
THE UNIVERSITY OF MISSISSIPPI, SCHOOL OF LAW, established the National Center for Justice and the Rule of Law within the law school in 2000. Its first permanent director, Thomas K. Clancy, assumed his position as Director and Visiting Professor on August 1, 2001. For additional information about the Center, see www.NCJRL.org. It has five programs:
Fourth Amendment Initiative
Research and education focused on Fourth Amendment principles are a main focus of the Center. It has partnered with the National Judicial College, located in Reno, NV, to create the only national training program for state trial and appellate judges in search and seizure principles. The Center, through its partnership with NAAG, offers training in search and seizure of computers to state attorney generals’ offices. It also holds an annual Fourth Amendment Symposium and sponsors the James Otis Lectures, both of which are published in the Mississippi Law Journal, to increases awareness of Fourth Amendment principles.
National Programs Initiative
The Center associates with other national organizations and with state-wide agencies to create training programs and model projects to facilitate the prosecution of persons engaged in computer-related crime. In partnership with the National Association of Attorneys’ General (NAAG), the Center has an on-going training program for Attorney Generals’ Offices from all 50 States. Working with prosecution-related agencies in numerous states, including California, Indiana, Mississippi, and Texas, the Center develops standards and model approaches for state governments to improve their ability to prosecute cybercrime. These projects are unique and address concerns of national interest.
Prosecution Externship Program
The Prosecutorial Externship Program provides specialized course-work and real-world training for law students in the duties and responsibilities of prosecutors. It has also established a model training program, to be published in the Mississippi Law Journal in 2005, for law students to prepare for careers as prosecutors.
Criminal Appeals Program
The Criminal Appeals Program trains law students in the art of appellate advocacy, through representation on appeal of persons convicted of crimes. It is developing a model criminal appeals training program, to be published in the Mississippi Law Journal in 2005-06, and provides continued legal education courses for attorneys in appellate advocacy.
Summary: Provides support for selected projects that promote the concepts of justice and the rule of law. Details: The Center provides support for several projects, including, under grants from the Department of Justice, serving as public relations and analytical consultant to the U.S. Attorney’s Office for the Northern District of Mississippi for the Project Safe Neighborhoods anti-crime program.
Ninth Circuit Conference at Arizona
A conference on U.S. Court of Appeals for the Ninth Circuit is to be held at the University of Arizona Rogers College of Law in Tucson, September 30 - October 1 2005, is intended to provide a more in-depth understanding of the functioning of the U.S. Court of Appeals for the Ninth Circuit, the court of appeals responsible for the largest proportion of federal appellate caseload. The emphasis of the conference will be on process and decision-making in the court of appeals. The court of appeals’ operation will be placed in the context of the other circuits.
Chief Judge Mary Schroeder has been invited to provide a keynote address. That will be followed by five sessions, at which presentations will be made by judges, law professors, political scientists, and lawyers. The topics of the sessions will be:
selection of court of appeals judges
caseload and aspects of case-processing, including case screening; use of "unpublished" dispositions; and use of visiting judges
the en banc process: purposes of en banc review and how they are served by the Ninth Circuit’s "limited" en banc
reversals by the Supreme Court; and
how the court of appeals looks to lawyers and the media.
A thoughtful examination of the Court of Appeals for the Ninth Circuit will help provide a more solid basis for evaluating proposals to change the way it does business or to divide the circuit, although circuit reorganization will not be the focus of the conference.
The conference organizers are Professor Stephen L. Wasby, Political Science, University at Albany; Professor Arthur D. Hellman, University of Pittsburgh School of Law; and Dean Toni Massaro, University of Arizona Law School.
For information about conference details, contact Donna Ream, Program Coordinator, 520-626-2400 or firstname.lastname@example.org [Jack Chin]