June 25, 2005
CrimProf Spotlight: Wisconsin's Victoria Nourse
This week CrimProf Blog spotlights Wisconsin's Victoria Nourse. She teaches criminal law and constitutional law. In the past five years, Victoria has published on these topics in a variety of journals, including the Yale, Stanford, Chicago, Duke, and NYU law reviews. She is known for her work on issues of gender and the criminal law and, in particular, criminal law defenses. Victoria came to teaching after a prestigious career in New York and Washington. She began her legal career clerking for Judge Edward Weinfeld on the Southern District of New York. In 1986, she joined the firm of Paul, Weiss, Rifkind, Wharton and Garrison. At the invitation of Arthur Liman, then chief counsel to the Senate committee investigating the Iran-Contra affair, Nourse left New York to serve as Assistant Counsel to that committee. In 1988, she moved to the United States Department of Justice, where she argued appellate cases on behalf of the government. In 1990, she returned to the Senate as Special Counsel to the Senate Judiciary Committee. From 1991-1993, Nourse was the chief attorney advising the Committee's chairman on criminal law matters. While serving in that capacity, Professor Nourse assisted the committee in drafting the Violence Against Women Act and in managing two omnibus crime bills. Professor Nourse received her B.A. in History from Stanford University, where she was elected a member of Phi Beta Kappa. In 1984, she received her J.D. degree from the University of California at Berkeley (Boalt Hall), where she was elected to the Order of the Coif and served as Senior Articles Editor of the California Law Review. In the Fall of 2002, Nourse was a visiting professor at Yale Law School, where she taught an advanced course on constitutional structure and a seminar on political theory and the criminal law. In the Spring of 2003, she was a visiting professor at New York University School of Law, where she taught substantive criminal law.
Charges Brought for Abuse of Polygamist's Daughter
A 20 year old man was charged with sexually abusing the 14 year old daughter of John Daniel Kingston. The daughter was one of 10 children that the alleged polygamist lost custody of last year. [Jack Chin]
Sex Sites Cut Deal With DOJ
From News.com: "Most Internet sex sites won't immediately have to follow expanded federal record-keeping standards, thanks to an 11th-hour deal with the U.S. government. The Free Speech Coalition, an adult-entertainment trade group, and the U.S. Department of Justice reached an agreement Thursday afternoon that the government will not begin enforcing the regulations, which expand existing rules to cover online material, until Sept. 7. The expanded regulations had been scheduled to take effect June 23. The deal applies only to those registered with the coalition by 2 p.m. PST on June 25. Current members have until Monday to confirm the names of their businesses with the coalition, which will submit a confidential list to a court-appointed special master on Wednesday.
The rules appeared in late May in the Federal Register, announcing that Internet sites would be tacked on to the list of adult media, including magazines and videos, already subject to record-keeping laws under the Child Protection and Obscenity Enforcement Act of 1988. The expanded rules require both producers and "secondary producers"--in this case webmasters--of adult content to keep and provide extensive documentation about their performers, including legal name, date of birth and copies of documents bearing a photo ID. Secondary producers do not, however, include film or video processors, Web hosts and ISPs, or those who engage in "mere distribution," according to the Federal Register notice.
The government's rationale is that "the identity of every performer is critical to determining and assuring that no performer is a minor." [Mark Godsey]
DEA Starts Cracking Down on On-line Narcotics Sales
Listen to NPR story here. [Mark Godsey]
June 24, 2005
Homer Simpson and the Law
We previously blogged here about how the TV show The Simpsons is full of legal gems. Now Homer Simpson will help law students in the UK learn the law.
From Yahoo News: "London, Jun 10 (ANI): Homer J. Simpson, a popular character from hit TV show 'The Simpsons', will now help students prepare for A-level law courses. According to the Mirror, clips from the show would be shown to the students and they would be asked to analyse Homer's illegal tricks - how they would be viewed in court. "Nobody breaks the law quite as much as Homer in The Simpsons - and he always seems to get away with it. In real life, someone who commits as many crimes would be in prison. So it's a bit of fun with a serious side to it," the paper quoted course director Gary Durrant as saying." Story . . . [Mark Godsey]
Florida Supreme Court: Male Strippers Are Free To Keep Dressing Up As Cops
After watching a television show last night where a male stripper, dressed up as a cop, was shot at when he knocked on a hotel room door that he thought belonged to a paying client, but actually belonged to drug dealers, I was wondering if states can outlaw civilians wearing police insignia. Little did I know that the Florida Supreme Court had just decided the issue.
From the Associated Press: "Without an intent to deceive, it is not a crime to wear an "NYPD" hat or other law enforcement insignia, uniforms or T-shirts printed with such words as "police," "sheriff" and "trooper," the Florida Supreme Court said Thursday. The high court, in a 5-2 opinion, struck down Florida's law against wearing or clothing, badges or other criminal justice markings because it is "unconstitutionally overbroad, vague and violates substantive due process." The maximum punishment was a year in jail. "The word `police' on a shirt could mean support for the police, as has been widely seen on clothing in support of the New York Police Department following September 11, 2001," Justice Charles Wells wrote. It also could be used to express a constitutionally protected negative opinion about police conduct, while the word "sheriff" could have a political meaning when worn to promote candidates for that office, he added. Wells noted the law lacks any provision on intent. Therefore, it bans "innocent wearing and displaying of specified words" and "is not tailored toward the legitimate public purpose of prohibiting conduct intended to deceive," he wrote. Chief Justice Barbara Parmiente and Justices Harry Lee Anstead, R. Fred Lewis and Peggy Quince concurred. Justice Raoul Cantero and Kenneth Bell dissented. "I fear that today the Court has stripped law enforcement agencies of one important weapon in their battle against crime," Cantero wrote. "I only hope that the Legislature acts quickly to fill the void." The opinion, not final pending a possible request for reconsideration, resolves conflicting lower court decisions. Kimberly Sult was arrested at a convenience store in 2001 for wearing a T-shirt emblazoned with "Pinellas County Sheriff's Office." She was convicted by a jury and ordered to pay $300 in fines and court costs. The 2nd District Court of Appeal upheld her conviction and the law. The 3rd District Court of Appeal, however, in 2003 ruled the law unconstitutional and reversed the conviction in South Florida of motorcyclist Alberto Rodriguez for wearing a shirt with "Police" on it. The law specifically banned the wearing of clothing with the words "police," "patrolman," "agent," "sheriff," "deputy," "trooper," "highway patrol," "wildlife officer," "marine patrol officer," "state attorney, "public defender," "marshal," "constable" and "bailiff." [Mark Godsey]
Vanderbilt CrimProf Allison Marston Danner Delivers Lecture on Prosecutorial Discretion at the International Criminal Court
Vanderbilt CrimProf Allison Marston Danner, an authority on international criminal law, delivered a guest lecture at the International Criminal Court in the Hague on June 14, at the invitation of Chief Prosecutor Luis Moreno-Ocampo. Her lecture, which addressed the topic of prosecutorial discretion and legitimacy, was one of a series of guest lectures sponsored by the ICC's Office of the Prosecutor. [Mark Godsey]
June 23, 2005
Nevada, Haven for Sex Offenders, Tightens the Requirements
Because of its loose reporting rules, some residents of Nevada believe the state has become a haven for sex offenders, and that the state is bearing the burden in the form of recidivism. The Nevada legislature is acting to toughen reporting an other laws on convicted sex offenders. Story . . . [Mark Godsey]
In the Wake of Michael Jackson: An Editorial on Anonymity for Sex Crime Accusers Even After Acquittal
Here. [Jack Chin]
Impact Program Reduces Crime in Troubled NYC Schools by 40%
From NY1.com: "Mayor Michael Bloomberg and Schools Chancellor Joel Klein said crime is down in some of the city's most troubled schools while touting the success of their Impact Schools program Wednesday at Theodore Roosevelt High School in the Bronx. Overall, crime is down nearly 40 percent in the 16 so-called Impact Schools compared to this time last year, according to the Department of Education. Violent crime is also down nearly 50 percent this year in those same troubled schools. “The Impact Program was always meant to be dynamic and responsive to changing safety conditions. Today's announcement reflects that," said Bloomberg. "The work we're doing in terms of student interventions and the sophistication, the peer mediation, the anti-bullying, the professional development – all of this has begun to take hold," said Klein. “Our school system is getting serious about the fact that we live by rules, and there are consequences for children who are not prepared to live by the rules.” The administration began its crack down back in January 2004, flooding those schools with more police officers and school safety agents, as well as instituting a zero tolerance policy for minor infractions and removing disruptive students all together. The drop was significant enough that the city removed six schools from the list, including Evander Childs, Adlai Stevenson, and Theodore Roosevelt High Schools in the Bronx; Erasmus Hall and Thomas Jefferson High Schools in Brooklyn; and Springfield Gardens High School in Queens." Story . . . [Mark Godsey]
New SCOTUS Crim Decisions Today
The Supreme Court released 3 new crim decisions today. The following is from BNA.com, and I have provided links to obtain these decisions:
Halbert v. Michigan, No. 03-10198 -- Defendants who plead guilty or nolo contendere are entitled, under the equal protection and due process clauses, to appointment of counsel for an appeal. Decision here.
Mayle v. Felix, No. 04-563 -- An amended habeas corpus petition that asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading does not relate back to the filing date of the original pleading for purposes of avoiding the
one-year limitations period in the Antiterrorism and Effective Death Penalty Act. Decision here.
Gonzalez v. Crosby, No. 04-6432 -- A state prisoner's Fed.R.Civ.P. 60(b) motion challenging the denial of habeas corpus relief that does not present a new claim is not subject to the restrictions placed on "second or successive" habeas petitions by the Antiterrorism and Effective Death
Penalty Act. Decision here.
Iowa to Use Microsoft Settlement to Fight Crime
Iowa will use its $2 million share of the settlement in the Microsoft antitrust suit to upgrade DNA labs and buy more patrol cars. [Mark Godsey]
June 22, 2005
GA Supreme Court Negates "Certainty" Instruction in Eyewitness ID Cases
The Supreme Court of Georgia, relying on scientific studies on the lack of reliability of eyewitness identifications, recently held in Brodes v. State: "Appellate courts have a responsibility to look forward, and a legal concept's longevity should not be extended when it is established that it is no longer appropriate. When identification is an essential issue at trial, appropriate guidelines focusing the jury's attention on how to analyze and consider the factual issues with regard to the reliability of a witness's identification of a defendant as the perpetrator are critical. In light of the scientifically-documented lack of correlation between a witness's certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as "the lamp to guide the jury's feet in journeying through the testimony in search of a legal verdict," we can no longer endorse an instruction authorizing jurors to consider the witness's certainty in his/her identification as a factor to be used in deciding the reliability of that identification. Accordingly, we advise trial courts to refrain from informing jurors they may consider a witness's level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification." [Mark Godsey, hat tip to Tulane CrimProf Pam Metzger]
CrimProf Nancy King on the Sleeping Juror Problem
From a press release: "The judge presiding over the Enron Internet trail started a coffee habit just to keep from drifting off. Jurors, lawyers and journalists regularly close their eyes, and a court officer once actually had to jostle awake a guy in the front row. Experts acknowledge that as much as 90 percent of courtroom proceedings can be overwhelmingly dull. "The average person doesn't realize how tedious evidence can be," [Vanderbilt CrimProf] Nancy King told reporter Mary Flood of the Houston Chronicle. King, who surveyed hundreds of judges about 10 years ago, found that 69 percent of the jurists she surveyed said they'd had a juror nod off in the previous three years. According to King, judges usually left it up to the lawyers to deal with the dozer. "After all, it was (the lawyers) that put the juror to sleep," King wrote of the judicial attitude. However, King said there are many steps judges can take to try to keep courtroom denizens alert: take frequent breaks, limit witness testimony, let jurors take notes and keep the room cold."" [Mark Godsey]
AZ: Suspicionless Frisk Leads to Suppression
The Arizona Court of Appeals has reversed a conviction where officers questioned a person on the street, had some generalized suspicion that there might be danger afoot (gang neighborhood, etc.) but no basis for a stop. Story here. [Jack Chin]
Pennsylvania Legislator to Stand Trial
Rep. Jeff Habay is accused of using his legislative staff for political purposes, including to investigate and harass his opponents. I guess there is some special law in Pennsylvania making that illegal. [Jack Chin]
AG Gonzales Says Sentences Too Lenient After Booker; Calls For More Mandatory Minimums
From Law.com: "Attorney General Alberto Gonzales called Tuesday for requiring federal judges to adhere to guidelines that set mandatory minimum prison sentences, saying there is evidence of growing disparity in jail terms since a landmark Supreme Court ruling. Gonzales, speaking to a conference of the National Center for Victims of Crime, also said judges should retain their discretion in imposing harsher prison terms than set out in sentencing guidelines. Sentencing guidelines for federal prisoners have been in place for nearly two decades. But the Supreme Court in January said making the guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they call for judges to make factual decisions that could add to prison time, such as the amount of drugs involved in a crime. Under the ruling, the guidelines now are only advisory. As a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable." Gonzales said that since the court ruling, he has seen "a drift toward lesser sentences," while prosecutors have reported that defendants are less willing to cooperate without the threat of certain prison terms. In one case in South Carolina, a man pleaded guilty to federal weapons and drug-trafficking charges and would have faced up to 27 years in prison under the guidelines, Gonzales said. "The judge sentenced him to only 10, offering no explanation," he said, adding that the government is appealing the sentence. Of 14,572 sentences imposed between the Jan. 12 ruling and May 5, there were 1,659, or 11.4 percent, that did not comply with the guidelines, according to statistics compiled by the U.S. Sentencing Commission. Of those cases, 201 sentences were heavier than those suggested by the guidelines and the rest were lighter. Legislation in Congress would set mandatory minimums for many types of crime, because of concern over leniency." Story . . . [Mark Godsey]
Interesting Case at Tulane Criminal Law Clinic
From a press release: "Student attorneys from the Tulane Criminal Law Clinic are planning an appeal to the United States Supreme Court over a ruling that admitted a report into evidence without its author ever taking the stand. The issue is of nationwide import since most states have enacted statutes that seek to conserve prosecution and police resources by keeping laboratory workers in the lab and out of the courtroom. In the Clinic's case, the State relied upon such a report to prove that the substance found in a a zip-lock baggie was marijuana. Based on that proof, the Defendant Robert Cunningham was convicted of misdemeanor marijuana possession. "The right to confront and cross-examine a witness devolves upon a criminal defendant the minute the state chooses to prosecute him," Tulane Criminal Law Clinic Director Pam Metzger told the New Orleans Times-Picayune in its June 21st edition." [Mark Godsey]
Civil Liberties Publication Opportunity
Calling for authors to write for The Encyclopedia of American Civil Liberties, to be published by Routledge (a division of Taylor & Francis Group). The Encyclopedia of American Civil Liberties will contain four volumes and more than 1600 entries. The Encyclopedia will serve students, researchers, lawyers, scholars, and the general public in academic and public libraries around the world as an indispensable reference on the issues of civil liberties and the meaning of freedom in American life.
The list of unassigned topics can be found on the project website at http://www.routledge-ny.com/amcivlib/unassigned.html. If any of these topics fall within your area of expertise or interest, please e-mail email@example.com, letting us know which entries you would be interested in writing. Your efforts will be compensated with an honorarium of $100 per 1000 words, and your byline will appear with your entry.
Paul Finkelman, Volume Editor, University of Tulsa
Gabriel J. Chin, Associate Editor, University of Arizona
Davison M. Douglas, Associate Editor, College of William and Mary
Rodney A. Smolla, Associate Editor, University of Richmond
Melvin I. Urofsky, Associate Editor, Virginia Commonwealth University, Emeritus
Mary L. Volcansek, Associate Editor, Texas Christian University
June 21, 2005
CrimProfs in the News
LSU LawProf John Baker was discussed in an article about overcriminalization. George Thomas of Rutgers is quoted in this article about the rape of an unconscious woman. Laurie Levenson of Southwestern commented on the Michael Jackson verdict. Charles Ogletree of Harvard commented on the Supreme Court's death penalty cases. [Jack Chin]