CrimProf Blog

Teens Teaching FBI Internet Cultural Norms Fired for Turning 16

No longer cutting-edge enough to advise the FBI on the latest internet customs. [Jack Chin]

National Parks Report Moss Thefts

Story here. [Jack Chin]

New Article Spotlight: Tulane's Pam Metzger

Tulane CrimProf Pamela Metzger has posted Cheating the Constitution, forthcoming in the Vanderbilt Law Review, on SSRN.  Here's the abstract:

It is black letter constitutional law. To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that I mean, that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.

Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences.

In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.

Obtain article here. [Mark Godsey]

Positions Open at Cardozo Innocence Project

3 positions open in the clinic.  Cardozo is the mothership of all innocence projects, and these spots might be ideal for some of your recent graduates.  Details here.  [Mark Godsey]

Cert Granted in Fourth Amendment Case

The case is Hudson v. Michigan, No. 04-1360, and the issue is described by BNA.com as "Whether "inevitable discovery" doctrine creates a per se exception to exclusionary rule for evidence seized after violation of "knock and announce" rule of the Fourth Amendment."

The case is being litigated by Wayne State CrimProf David Moran.  He posted the following about the case on the crimprof list serve:

I have a [Supreme Court case] pending in Hudson v. Michigan, No. 04-1360, in which the issue is whether evidence found in a home after a 4th Amendment knock-and-announce violation should be suppressed or whether it should come in under the theory that the police would have "inevitably discovered" the same evidence if they had knocked and announced.  This inevitable discovery argument has been explicitly accepted by the Michigan Supreme Court and the 7th Circuit and   explicitly rejected by the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals.  

The government's inevitable discovery argument relies on language from Nix v. Williams that the police should not be placed in a "worse position" than they would have been in without the  constitutional violation.  But the Court has many times suppressed evidence and thereby put the
police in a worse position than they would have been had they not violated the Constitution.  For example, in Katz, the Court observed that the FBI had ample probable cause to obtain a warrant to bug the telephone booth, but suppressed the evidence because the police did not obtain a warrant.  Thus, the police were placed in a worse position than they would have been had they not committed the violation.  There are many such cases in which evidence has been suppressed where the police could have, but did not, obtain a warrant.

My question to you folks is:  can you think of cases in which the constitutional violation  was not failure to get a warrant in which the Court placed the police in a worse position than they would have been had they not committed the violation?  I've come up with a few, but I'm sure there must be lots more.  And, more broadly, when is it correct to say that the deterrence rationale of the exclusionary rule necessarily requires that the police sometimes be put in a worse position than they would have been without the violation, notwithstanding the contrary statement in Nix?

Contact David Moran at d.moran@wayne.edu  [Mark Godsey]

Ohio State Journal of Criminal Law Solicits Commentaries and Reviews

Douglas Berman, Joshua Dressler, and Alan Michaels, faculty Managing Editors of the Ohio State Journal of Criminal Law, report that room still exists for Commentaries and Reviews for the Spring 2006 issue.  The Journal can consider submissions until space is filled or sometime in October,
whichever comes first.

Commentaries should be short (about 5000 words, light in footnotes).  Reviews may be of recent books, criminal justice reports, or even of criminal justice issues arising in movies, television, and other cultural forums.   Submissions should be sent to crimlaw@osu.edu.  The editors may be contacted in advance with questions: dressler.11@osu.edu; michaels.23@osu.edu; or berman.43@osu.edu. [Mark Godsey]

ACLU and HRW Criticize Material Witness Detentions

Story here; report here. [Jack Chin]

2 SCOTUS Decisions Today

From BNA.com:

In Castle Rock, Colo. v. Gonzales, No. 04-278, the court held that a woman whose children were murdered by her estranged husband after municipal police failed to respond to her repeated pleas to enforce a restraining order against him, as state law required them to do, did not have a property interest protected by the Due Process Clause in having the police enforce the order. Therefore, the court ruled, the mother's 42 U.S.C. §1983 civil rights actions against the municipality was properly dismissed.  Decision here.

In Bell v. Thompson, No. 04-514, the court decided that, assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition.  Decision here.  [Mark Godsey]

BTK Defense Baffling-UPDATED

The trial for the alleged BTK Killer begins today, and observers are baffled by the defense thus far.  No motions have been filed of any sort.  Not to change venue in the highly publicized case, no motions to suppress, no motions for anything.  Not even a detailed juror questionnaire.  The court-appointed attorneys have yet to discuss their strategy (or lack thereof).  Story . . .  [Mark Godsey]  Guilty plea here, including free video.

This Week's Top 5 Crim Papers

This week's top 5 crim papers on SSRN, with number of recent downloads, are:

(1)	165	Victims, Survivors and the Decisions to Seek and Impose Death Wayne A. Logan, William Mitchell College of Law, Date posted to database: May 2, 2005 Last Revised: May 6, 2005
(2)	152	Financial Scandals and the Role of Private Enforcement: The Parmalat Case Guido Alessandro Ferrarini, Paolo Giudici, Università degli Studi di Genova - Law School, Free University of Bozen-Bolzano - School of Economics, Date posted to database: May 27, 2005 Last Revised: June 9, 2005
(3)	145	Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science Alafair S. Burke, Hofstra University - School of Law, Date posted to database: April 26, 2005 Last Revised: May 1, 2005
(4)	124	Law and Emotion: A Proposed Taxonomy of an Emerging Field Terry A. Maroney, New York University - School of Law, Date posted to database: May 20, 2005 Last Revised: June 15, 2005
(5)	107	Of God's Mercy and the Four Biblical Methods of Capital Punishment: Stoning, Burning, Beheading, and Strangulation Irene Merker Rosenberg, Yale L. Rosenberg, University of Houston - Law Center, University of Houston - Law Center, Date posted to database: January 5, 2005 Last Revised: April 27, 2005

Utah CrimProf Luna Awarded Chair

Congratulations to Utah CrimProf Erik Luna, who was recently named the Hugh B. Brown Presidential Endowed Chair in Law.

International Crime News

In India, a crime reporter was chagred with dozens of burglaries and thefts; he used his professional contacts to move the goods.  In Brazil, speed limits will be ending in high crime areas to give motorists a chance to get through without being attacked.  In Italy, an outbreak of unlawful private food parties has caught police attention. [Jack Chin]

Right to Silence Abolished in Australia?

Story here. [Jack Chin]

California Taxpayers Paid For Viagra for Sex Offenders

Story here.  [Mark Godsey]

Case Law Launches New Global Security Blog

From a press release:  "Case School of Law is proud to announce the launch of the Institute for Global Security, Law and Policy's website, http://law.case.edu/terrorism.  It features a blog providing analysis of critical global security issues as well as links to legal and policy commentary, other blogs, and news summaries across the Internet. By using the collaborative nature of blogging, the site encourages individuals within and outside the Institute to comment on legal and policy issues.  The site reflects Case School of Law's commitment that the recently created Institute become the leading resource and research center for issues of global security.  Developing the site were Case School of Law Webmaster Mr. Carl Roloff and Mr. Greg McNeal a third year law student and developer of one of the web's most visited terrorism blogs. Mr. McNeal and Ms. Erin Page, also a third year law student, will serve as Research Fellows in Terrorism and Homeland Security, updating the site and facilitating discussions.  Professor Amos Guiora is Director of the Institute and Assistant Professor Jessie Hill is the Assistant Director."  [Mark Godsey]