January 13, 2005
Recent NPR Stories of Interest to CrimProfs
Listen to NPR's report of Governor Schwarzenegger's proposed reforms of the California prison system here. Click here to listen to a report concerning Judge and Homeland Security Director nominee Michael Chertoff's stances on civil liberties issues. Hear Nina Totenberg's take on Booker here. [Mark Godsey]
New Issue of Ohio State Journal of Criminal Law
CrimProf Joshua Dressler of Ohio State has announced that the new issue of the Ohio State Journal of Criminal Law has arrived. It includes:
(1) A tribute to Yale Kamisar (by Judge Ronald Gould; and Professors Ronald Allen, Albert Alschuler, Tracey Maclin, William Miller, and Marc Spindelman), and two essays by Yale himself;
(2) A Capital Juries symposium (articles by Professor Jeffrey Abramson, Theodore Eisenberg & Stephen Garvey, Nancy King, David McCord, and John Quigley);
(3) Commentaries by Phyllis Crocker (reporting on her experiences as a foreperson of a grand
jury), Kyron Huigens (critiquing an earlier article by Peter Westen, on the subject of duress---is it a justification or excuse?), Stephen Shute (does parole work?), and Peter Westen (consent in rape cases);
(4) A book review by Victoria Nourse of Cynthia Lee's important book on the nature of the reasonable person in the criminal law; and
(5) A new Letters to the Journal section.
The issue can be found here. [Mark Godsey]
Supreme Court Heard Habeas Case Yesterday
The Supreme Court heard oral arguments yesterday in Rhines v. Weber, 03-9046. The questions presented: (1) Can a federal court stay a section 2254 habeas corpus petition which includes exhausted and unexhausted claims, when the stay is necessary to permit a petitioner to exhaust claims in state court without having the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (AEDPA) bar the right to a federal petition? (2) Is the 8th Circuit correct that the dismissal of a mixed section 2254 petition is mandated by Rose v. Lundy, or are the appeals courts for the 1st, 2nd, 6th, 7th and 9th circuits correct in following the separate concurrences of Justices Souter and Stevens in Duncan v. Walker that a stay of an otherwise timely-filed federal petition is permissible in light of the AEDPA? More . . . [Mark Godsey]
January 12, 2005
The Old Fake Death Sentence Trick: UPDATED
North Carolina police with arrest warrants for property crimes told Andrew Dalzell that he was a suspect in the 1997 disappearance of Debora Leigh Kay. They put him in the back of a patrol car with a phony warrant for murder, and a phony letter from the DA saying that he would receive the death penalty unless he confessed. Dalzell confessed to the murder. Then and only then did police administer Miranda warnings. Just to make sure he was totally helpful to the police, he confessed orally, in a handwritten statement, and in a typed statement. UNC CrimProf Louis Bilionis commented that it seems to have been a case of custodial interrogation without Miranda warnings. "[Interrogation] does not mean merely asking questions. If you use psychological ploys that are likely to elicit a response from the suspect it is the same thing as questioning the suspect."
Arbitrary and Capricious has a post about a PD who committed suicide upon realizing that he had been duped by a client who murdered a judge. Public Defender Dude blogs the biblical argument against DNA profiling--it seems to support evolution, eh? Like Charlie Brown trying to kick a football held by Lucy, I once again report Sentencing Law and Policy's prediction that a big case is coming down on Wednesday. Talkleft (congrats on the 5 millionth visitor) blogs a story about Nevada authorities routinely hiding exculpatory evidence. [Jack Chin]
Tax Convictions Up
TaxProf Blog has a post showing that tax convictions went up 75% in 2004 compared to 2003. [Mark Godsey]
Judge Rejects Novel First Amendment Argument to Halt Execution
From Findlaw.com: "A federal judge Friday rejected a death row inmate's
request to halt his upcoming execution on grounds that a chemical used
to paralyze condemned prisoners during lethal injections could impair
their free speech rights. Barring a successful appeal, U.S. District Judge Jeremy
Fogel's decision means that convicted double murderer Donald Beardslee
will be executed as scheduled at San Quentin on Jan. 19.
Legal experts said Beardslee's appeal was the first argument
of its kind in death penalty law. But Fogel was unpersuaded, saying at
a hearing Thursday that Beardslee 'hasn't shown a sufficient violation
of his constitutional rights.' He took the case under submission and
issued his ruling Friday afternoon.
Beardslee argued in an application for a temporary restraining
order to halt his execution that pancuronium bromide, the second of
three chemicals injected into condemned inmates at executions, could
violate his First Amendment rights by preventing him from telling
witnesses that he was uncomfortable or in pain. But in a seven-page ruling, Fogel said he was unconvinced that
there was any chance that an inmate would be conscious when receiving
the paralytic drugs because doctors first administer a strong
barbiturate, sodium pentothal. 'Even with protocols under which only two grams of sodium
pentothal -- as opposed to the five grams used in California -- are to
be administered, the likelihood of such an error occurring is so
remote as to be nonexistent,' Fogel said." More . . . [Mark Godsey]
Supreme Court Holds No Overt Act is Required for Money Laundering Conspiracy
Resolving a split in the circuits, the Supreme Court held yesterday in Whitfield v. U.S. that a conviction for conspiracy
to commit money laundering, in violation of §1956(h), does not require
proof of an overt act in furtherance of the conspiracy. From the syllabus:
"Section 1956(h) provides: 'Any person who conspires to commit any offense defined in [§1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.' In United States v. Shabani, 513 U. S. 10, this Court held that the nearly identical language of the drug conspiracy statute, 21 U. S. C. §846, does not require proof of an over act. The Shabani Court found instructive the distinction between §846 and the general conspiracy statute, 18 U. S. C. §371, which supersedes the common law rule by expressly including an overt-act requirement. Shabani distilled the governing rule for conspiracy statutes: Nash v. United States, 229 U. S. 373, and Singer v. United States, 323 U. S. 338, ' 'give Congress a formulary: by choosing a text modeled on §371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U. S. C. §1 [which, like 21 U. S. C. §846, omits any express overt-act requirement], it dispenses with such a requirement.' ' 513 U. S., at 14. This rule dictates the outcome here as well: Because §1956(h)'s text does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction." [Mark Godsey]
New Article Spotlight: Rethinking Entrapment
CrimProf Joseph Colquitt of Alabama has posted the paper Rethinking Entrapment on SSRN. The abstract states:
Recent news accounts of the arrests of Ryan Anderson, the National Guardsman accused of being an Al Qaeda informant, and Hemant Lakhani, allegedly involved in a second dirty bomb plot, show that law enforcement continues to use sting and decoy operations despite the risk of running afoul of the entrapment doctrine.
Rather than advancing one model of entrapment, this article focuses on the failings of the doctrine generally. It argues that no matter which paradigm of entrapment a jurisdiction employs, the defense still fails to serve adequately as a prophylactic device for two main reasons. First, entrapment is not an effective disincentive to law enforcement agents; they can achieve their goals without convictions or even arrests. Second, even when the defense succeeds, it allows an accused to be arrested, incarcerated, and possibly convicted, subjected to public opprobrium and punished.
The only consensus possible on entrapment is that we are better off with it than without it. That said, many jurisdictions have vacillated over which form to use. The resultant instability has undermined the efficacy of the doctrine. This article proposes that entrapment can be stabilized, either by being fixed in statutory form or by being grounded in constitutional law.
This article discusses the history of entrapment and various rationales advanced on the doctrine's behalf. It identifies reasons why law enforcement continues to use entrapment techniques and why defendants and attorneys may be reluctant to raise the defense at all. The article concludes with a discussion of the various areas in which the entrapment defense is wanting in the hope that the doctrine can be modified to meet those needs, or that a new doctrine can be developed.
To obtain the article, click here. [Mark Godsey]
The Northwestern Center on Wrongful Convictions has persuaded the governor of Illinois to pardon two inmates on the ground of innocence; the men served 27 years before being exonerated by DNA testing. Two others exonerated by DNA were also pardoned. The men had been released in 2003 and 2004. The Boston Phoenix reports on the loss of public confidence on the Boston police based on some high profile exonerations; Here's a similar article about the Suffolk County (Boston) prosecutor's office. Here's a story about the new joint law-journalism innocence project at the University of Oregon. Brooklyn CrimProf William Hellerstein successfully represented David Wong, who served 18 years for a murder he did not commit; now he's free--to be deported. Talkleft blogs a big settlement in a Chicago wrongful arrest case. [Jack Chin]
January 11, 2005
Supreme Court Granted Cert. Last Week in Six Criminal Cases
BNA summarizes all 6 cases here. The short BNA summaries are as follows:
1. Arthur Andersen LLP v. United States, No. 04-368 -- Must Arthur Andersen's conviction for witness tampering under 18 U.S.C. 1512(b) be reversed because the jury instructions misinterpreted the "corrupt persuasion" and "official proceeding" elements of the offense?
2. Halbert v. Michigan, No. 03-10198 -- Does Michigan deny due process by not appointing counsel for indigent defendants who seek to appeal convictions obtained by guilty plea?
3. Mitchell v. Stumpf, No. 04-637 -- Did a habeas corpus petitioner knowingly and voluntarily plead guilty to aggravated murder, and does due process require that his conviction be vacated when the state subsequently secures the conviction of an accomplice on the theory that the accomplice was the triggerman?
4. Bell v. Thompson, No. 04-514 -- Did the Sixth Circuit err when, in light of new evidence, it withdrew its opinion affirming the denial of habeas corpus relief to a death row inmate six months after Fed.R.App.P. 41(d)(2)(D) made the issuance of the mandate mandatory?
5. Mayle v. Felix, No. 04-563 -- When a federal habeas corpus petitioner challenging a state judgment amends his petition to include a new claim, does the amendment relate back to the date of the filing of his petition for purposes of the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations?
6. Johnson v. California, No.04-6964 -- Must an objector seeking to establish a prima facie case of group bias in the use of peremptory challenges to remove potential jurors show that it is more likely than not that the other party's peremptory challenges, if unexplained, were based on impermissible group bias?
Prison Rape Conference DVD Available-Free, Apparently
"A DVD recording of NIC's January 10 Town Hall meeting on the Prison Rape Elimination Act will be available from the NIC Information Center in early February 2005. The 2-hour program was broadcast live from the ACA Winter Congress in Phoenix, Arizona.
To request a copy, send an e-mail message to email@example.com, complete the online form at http://www.nicic.org/Forms/DocumentRequest.aspx, or call 800-877-1461." [Jack Chin]
Digital Fingerprint Technology
The Chicago Tribune reports that more and more fingerprints are taken and examined electronically. In the process, many are "cleaned up" on Photoshop. "Across the country, police departments and crime labs are submitting fingerprints for comparisons and for entry into databases, using digital images that may be missing crucial details or may have been manipulated without the FBI knowing it." [Jack Chin]
Police Near Cape Cod Use DNA Sweep to Identify a Murderer
In attempts to find the murderer in a 3-year old case out of Truro, MA, police investigators are trying to collect DNA samples from every man in the town, which totals approximately 790 men. Although many men in the community support the effort thus far, other men, such as Dick Seed, find this sweeping investigative approach to be coercive. Seed called the ACLU to complain about the sweep and commented: "I think it's outrageous...I really think they're usurping my civil rights... Are they going to chase down everyone who didn't give a sample? It kind of sounds like Stalin's secret police." According to Sergeant David Perry of the Truro Police Department, the program is voluntary but special attention will be given to those men who refuse to provide DNA. "We're trying to find that person who has something to hide," Sergeant Perry said. More from the NYTimes story... [Mark Godsey]
Indiana Governor Calls for a Review of IN's Death Penalty
On January 7, former Indiana Governor Joe Kernan, (whose term as governor ended on January 10), called for a review of Indiana's administration of the death penalty. "I have now encountered two cases where doubt about an offender's personal responsibility and the quality of the legal process leading to the capital sentence has led me to grant clemency," Kernan said. "These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences." Along with Kernan's call for a review of Indiana's capital punishment, he granted clemency to Michael Daniels, an Indianapolis man convicted and sentenced to death row for the 1978 killing of an Army chaplain. Daniels was incarcerated on Indiana's death row longer than any other prisoner; now instead of facing the death penalty, Daniels will serve life in prison without the possibility of parole. More... [Mark Godsey]
January 10, 2005
DWUI-Driving Wheelchair Under the Influence
Orin Kerr at The Volokh Conspiracy has a story about an overzealous prosecutor who charged a woman with driving her wheelchair after having a few drinks. Thankfully, the judge dismissed the charges. [Mark Godsey]
Live Webcast: Justices Scalia and Breyer on the Relevance of Foreign Law
January 13, starting at 4:00 p.m. EST at American U. Law School. Available here. [Jack Chin]
Grand Jury Leaks in Baseball Doping Probe: Who Dunnit?
Here are several stories about grand jury leaks to the San Fransisco Chronicle in connection with the testimony of baseball stars Barry Bonds and Jason Giambi and others before a federal grand jury investigating illegal steroid use and distribution (the BALCO case). This story demonstrates that the Chronicle obtained an actual transcript of Bonds' testimony, and summarizes his statements. This story describes the federal investigation into the leak, and this story provides the Chronicle's justifications for printing the secret information and refusing to disclose its source. The source of the leaks is still unknown, and a federal judge overseeing the charges against the alleged steriod distributors in the BALCO case has refused to dismiss the charges in response to a motion by defense attorneys that the leaks have tainted the jury pool and will result in an unfair trial. The judge found that no evidence was presented which proved that the government was responsible for the leaks.
The fact that the Chronicle obtained a transcript of Bonds' testimony, however, suggests strongly that the leak came either from the government or the defense in the BALCO case. A grand juror, who some reports have speculated could be the source, would be an unlikely culprit. Grand jurors can request transcripts from previous witnesses to refresh their memory (this usually happens when a case is presented to them over a period of months and the grand jurors want to remember what a witness said months or weeks earlier). Also, it is not uncommon when a lengthy grand jury investigation concludes for prosecutors to present to the grand jurors the transcripts of all the witnesses in the case before they make their final decision, in case the grand jurors want to look back over the whole of the evidence. But in such a case the transcripts are marked as exhibits, and a grand juror would have a hard time swiping an actual exhibit without anyone noticing at the time or after the fact when it shows up missing. In all, it seems very unlikely that a grand juror would be the source of the leak, and if grand juror were the source, it would be due to serious prosecutorial negligence in enforcing secrecy rules or a prosecutor looking the other way.
Bonds or his attorneys surely would not have leaked testimony so damaging to his reputation, assuming they even had access to the evidence. This leaves one of the parties in the BALCO case as the likely culprit, either one of the defense attorneys, one of the defendants, or someone from the government. The defense attorneys and the defendants might have had an incentive to leak, since Bonds denied knowledge that the substances were steriods and said that he didn't think the BALCO defendant from whom he received the substances would have provided him with illegal steriods. It seems perhaps unlikely that one of the defense attorneys leaked the information, however, because leaking secret grand jury evidence to the media, and then moving to dismiss charges by blaming the government for the same leak, is a high risk venture that would take serious moxy if not insanity. Too much to lose, not enough to gain. One of the BALCO defendants is therefore a viable possibililty, assuming his attorney provided him with his own copies of the grand jury transcripts.
Discounting a burglary of a government office (of which no evidence exists), the other viable culprit would be someone in the court reporter's office who transcribed the testimony, or a prosecutor or government agent who would have received the transcript from the court reporter's office. Government leaks are, of course, not unheard of. Several years ago, I worked with a prosecutor who was fired from his job as a Special Assistant United States Attorney for leaking information to the press in a high profile mafia case that we both worked on (click here and here). Bonds' attorney, Michael Rains, suspects that a government employee was the source of the leak. He told the Chronicle, "My view has always been this case has been the U.S. vs. Bonds, and I think the government has moved in certain ways in a concerted effort to indict my client. . . . And I think their failure to indict him has resulted in their attempts to smear him publicly."
Peter Henning at White Collar Crime Prof Blog is right that we will probably never know the source of the leak, but for the reasons I've stated, I would place my bet on one of the BALCO defendants or a government employee. [Mark Godsey]
Denver CrimProf's Mother Murdered; Petition Here
Breaking Case News: 8th Circuit Holds Custodial Pre-Miranda Silence Can Be Used in Prosecution's Case in Chief
The Eighth Circuit held on Friday in U.S. v. Frazier that a defendant's post-arrest but pre-Miranda silence can be used against him in the prosecution's case-in-chief. The defendant's silence in this case was particularly incriminating, because when the officer accused him repeatedly of criminal violations, he made no comment and showed no reaction.
Crime & Federalism Blog does an excellent job blogging this case, including excerpts from the opinion and a discussion of the law on this topic here. [Mark Godsey]