Saturday, July 9, 2005
A new program in Montana requires police officers on roving patrol to stop at least one car an hour, regardless of whether the driver did anything wrong. They don't yet have a name for the program, but should consider calling it "The Totally Unconstitutional Car Stop Program of Montana." Story. [Mark Godsey]
Friday, July 8, 2005
From CNN.com: "SANTA BARBARA, California (AP) -- Prosecutors trying ex-fugitive Jesse James Hollywood in the death of a 15-year-old boy should be removed from the case because they consulted on an upcoming Bruce Willis film based on the crime, a defense attorney said Wednesday. "Alpha Dog," starring Willis and singer Justin Timberlake, is based on the August 2000 slaying, though the names and the setting have been changed. The prosecution's alleged involvement with the film could make it difficult for Hollywood to get a fair trial, defense attorney James Blatt said. He said Santa Barbara County prosecutors and detectives gave filmmakers documents, police reports and other records that might not be part of the public record. Blatt also said lead prosecutor Ron Zonen appeared before a camera, walking with the movie's production staff on a trail where the murder occurred." Story . . . [Mark Godsey]
Thursday, July 7, 2005
A 20 year old convenience store murder was solved by examining the DNA on a dollar bill handled by the robber. After killing the clerk, the robber went behind the counter and served some customers so they would not realize a crime had taken place. [Jack Chin]
For most defense attorneys, a client's confession to police is bad enough. But a murder/kidnapping suspect in Idaho allegedly made incriminating remarks to the entire world via his blog. After Joseph Edward Duncan III was arrested this week for allegedly kidnapping two children and murdering their family members, police found out that he had operated a blog. The blog contains plenty of incriminating evidence, including his discussion of his moral struggles with right vs. wrong, and then a cryptic post which states that the "demons have taken over" shortly before the crimes occurred. Story . . . [Mark Godsey]
When most of the courthouse windows in KC were recently smashed, the court pinned it on a convenient "scapegoat." Indeed, a local cop found a goat staring at himself in the reflection of the windows, and then headbutting and smashing them. Story . . . [Mark Godsey]
Hastings lawprof Ethan J. Leib has published the following paper on SSRN:
Responsibility and Social/Political Choices about Choice; Or, One Way To Be a True Non-Voluntarist. Here's the abstract: Linking choice with responsibility is a seduction our voluntarist society often cannot resist. We generally wish to hold people responsible in our tort and criminal law for their free choices—and conceive of responsibility as intimately bound up with personal choice. Samuel Scheffler may have diagnosed why many redistributive forms of liberalism often fail to command support in the public sphere: because they regularly deny what seems to be a basic moral intuition of our society—that people should be held responsible for their free choices.
To be sure, the contours of what counts as a free choice and what counts as a product of duress, genetics, or upbringing sufficient to vitiate or mitigate responsibility is always a matter of vigorous ongoing contestation. Still, there remains a strong intuition in our society’s collective moral psychology that responsibility is somehow deeply connected to free choices. Indeed, we might not be able to make sense of ourselves as selves without feeling justified in claiming responsibility first and foremost for what we perceive to be our own free choices. The potential that the "Causal Thesis" may be true—that some weak form of determinism obtains —does not deter us: to reinforce our aspiration for free will, we tend to design our punitive policies and moral practices of praise and blame consistent with it, in spite of our failure to have a clear faith that our institutions contribute to members’ true freedom. We do this, some would argue, to retain the basic connection of resp onsibility to choice; the business of apportioning responsibility somehow seems manageable, justifiable, and legitimate if it is tied to choice. Accordingly, even the determinists among us are compatibilists. Here, I make an effort to think hard about the purported connection between responsibility and choice—and try to avoid the seduction of voluntarism. I build from the work of Meir Dan-Cohen, who has done the most to develop a theory of responsibility unmoored from choice. In the process, I touch upon love and creativity, two areas of social life that provide a window into a different conception of responsibility that can be used to guide our practices of praise and blame in morality, the criminal law, and torts.
Paper available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=753224.
Hillary Brave Farber has been named a visiting faculty member at the Western New England College School of Law. Dr. Anthony S. Caprio, College president, recently announced the appointment. Farber, who joins the School of Law as a Visiting Assistant Professor of Law, teaches Criminal Law, Criminal Procedure, and Evidence. Farber has held teaching positions at New England School of Law, Harvard Law School, Suffolk Law School, and Northeastern School of Law. Before she began teaching, Farber was a staff attorney with the New Hampshire Public Defender. Farber has been a presenter at national conferences and workshops on various aspects of criminal and juvenile law. She is on the Board of Directors of Suffolk Lawyers for Justice, the Massachusetts Chapter of the National Lawyers Guild, and is a founding member of the New England Innocence Project. Farber's scholarly writings in the area of criminal and juvenile law have appeared in the American Criminal Law Review and the South Carolina Law Review. Farber holds a B.A. from the University of Michigan and a J.D. from Northeastern University School of Law. [Mark Godsey]
Wednesday, July 6, 2005
A potential juror who, evidently, did not wish to serve, when asked whether he could be fair, said that the defendant looked like a "scumbag." The judge is now threatening to hold him in contempt. NYLS CrimProf Randolph N. Jonakait was quoted in the NY Times as saying a juror should not be punished for speaking the truth. [Jack Chin]
Yesterday, CrimProf Blog enjoyed its 150,000th visitor since launching 8 months ago. We are now averaging more than 800 visitors each day over the past several months. Thanks for reading!
We recently added some new features on the left-side column, including a course materials link that lists crim textbooks by subject matter with website links to get a copy. More new features helpful to your research will added in the coming months, including links to on-line treatises, think tanks, criminal law manuals, and the criminal codes of all 50 states.
Post a comment below to let us know how we can improve.
The First Circuit recently held in U.S. v. Martins that the police could justify the warrantless entry into a home under the "emergency aid" exception because when they knocked on an apartment door to investigate a nearby street shooting, they found a 12-year old boy who appeared to be home alone, and marijuana smoke wafted through the room. Protecting the boy from the pot vapors was sufficient reason to enter (the court also addressed other possible grounds, but seemed to suggest that the "home alone with pot smoke" scenario was sufficient by itself to implicate the "emergency aid" exception). Once the police were inside, they performed a protective sweep, despite the fact that no one had been placed under arrest. The court approved this warrantless activity as well, finding it "reasonable" under the circumstances. Decision here. [Mark Godsey]
An interesting post at Talkleft says: "Via Huffington Post, a man in Tampa who parked outside a house and mooched off the homeowner's wi-fi network has been arrested and charged. Sounds, ridiculous, right? The police say no, and they have a point. "The technology has made life easier for high-tech criminals because it provides near anonymity. Each online connection generates an Internet Protocol Address, a unique set of numbers that can be traced back to a house or business. That's still the case with Wi-Fi but if a criminal taps into a network, his actions would lead to the owner of that network. By the time authorities show up to investigate, the hacker would be gone. "Anything they do traces back to your house and chances are we're going to knock on your door." So if the perp outside is logging on to child porn and downloading it, you'll be getting a visit from the feds. How will you convince them it wasn't you? Maybe by letting them search your hard drive to show no porn on it. Seems too steep a price, if you ask me. Make sure your wi-fi is secure. It's more than your finances that need protecting. Your privacy and liberty rights may also be at stake." [Mark Godsey]
Tuesday, July 5, 2005
In Nebraska a man who escaped from police attempting to serve a misdemeanor warrant by abandoning his truck and swimming across a river turns out to have a 26-page criminal record. The article doesn't say what the crimes were, but bond was set at $3,500, so it is probably 26 pages of the types of things that would be done by a person who would be willing to abandon his truck and swim across a river rather than deal with a misdemeanor, that is, stupid stuff. [Jack Chin]
In one Texas town, bail bond companies are objecting to judges releasing defendant on their own recognizance, rather than setting bail. The jails are crowded, it turns out, and the judges don't want to keep people in custody unless it is necessary to spend the money to do so. But of course, letting people out to show up on their own cuts into the bail bond business. What good does it do to have the criminal justice system work, if no one makes a buck? [Jack Chin]
Adil Ahmad Haque has posted Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law on SSRN. Here's the abstract:
The central aim of this Article is to outline a relational theory of retributive justice that illuminates (i) the role of group perpetration and group victimization in justifying the displacement of domestic law by international law and the intervention of international tribunals into internal armed conflict; (ii) the relative gravity of genocide and crimes against humanity as well as the grouping of persecution and apartheid with crimes whose constituent acts cause greater physical destruction; and (iii) the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter's political capital. The theory locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. The legitimacy of international criminal law arises from defects in the embodiment of this relational structure in social groups and failing states, defects which devolve retributive justice into cycles of escalating violence. The displacement of group vengeance by legal process is not the (broadly consequentialist) ground of the relational structure, but rather a reason for one set of social institutions rather than others to occupy a position within that (broadly deontological) structure. The Article concludes by revisiting the grounds of the duties asserted, arguing that the duty to punish rests ultimately on the duty to protect, that invocation of the former implicitly admits failure to discharge the latter. The Article is intended as a contribution both to the growing literature surrounding the philosophical foundations of international criminal law and to traditional criminal law theory.
To obtain the paper, click here. [Mark Godsey]
This week's top 5 crim papers, with number of recent downloads from SSRN, are:
|(1)||168||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)||161||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)||147||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)||132||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)||114||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
From STLToday.com: "The St. Louis public defender's office - the last legal hope for those too poor to afford their own lawyer - will, for the first time in at least 20 years, refuse to represent certain people in court starting Tuesday, state officials said last week. Those people are on the misdemeanor confined docket, which means they've been arrested on misdemeanor charges, or are named on the assessed docket because they've been arrested for failing to pay fines or court costs. State and local representatives of the public defender's office say they're making the move because it's unethical and unprofessional to try to represent defendants with only minutes to familiarize themselves with the cases. J. Marty Robinson, director of the Missouri State Public Defender system, calls it "meet 'em and greet 'em and plead 'em." "I'm just flabbergasted that there are people that think this is OK," he said. Robinson said many people were probably misled into thinking they had a lawyer, but public defenders were simply "filling out the court's paperwork." Public defenders also say that under recently revised state laws, guilty pleas to two of certain misdemeanors can lead to a felony charge and serious prison time for the third offense, along the lines of state three-strikes laws. That could mean defendants who plead guilty to minor crimes to stay out of jail are unknowingly increasing their chance of greater future penalties. "Our representation on that docket was unethical, unprofessional and unconstitutional, and innocent and vulnerable people were being hurt," said St. Louis District Defender Eric Affholter. "And that's why we made our decision to participate differently on that docket." The move is threatening to fill local jails and to clog courtrooms. Presiding Circuit Judge John Riley said he was going to tell city officials last week that city jails could be seeing more inmates for longer periods. It also is angering judges. In legal paperwork filed late Friday, the public defender's office said one assistant public defender had been told by sheriff's deputies they had been ordered to arrest her and her colleagues if they didn't show up to interview clients at 9 a.m. Tuesday. But sheriff's spokesman Mike Guzy said Friday afternoon that he wasn't aware of any order to arrest public defenders. The judges reportedly are striking back in other ways, including in ways public defenders say will punish those too poor to afford their own attorneys. According to affidavits signed by Affholter and Assistant District Defender Laura O'Sullivan and filed Friday, Circuit Judge Michael Mullen called O'Sullivan and told her that he was changing policies in his courtroom in response to the public defender's move set for Tuesday. Mullen said he would no longer allow public defenders to postpone trials, would go with prosecutors' recommended sentences over public defenders' recommendations and would no longer reschedule hearings to avoid conflicts with the public defenders' schedules. "When one arm of the criminal justice system flexes its muscle, the others must respond," Mullen told the public defender's office staff, according to Affholter. Mullen was on vacation last week and could not be reached for comment." Story . . . [Mark Godsey, via Pamela Metzger]