July 16, 2005
Gay Marriage Mayor Prosecution Dropped
A New York mayor charged with a criminal offense for marrying same-sex couples has has the charges against him dropped. He was probably charged under New York Penal Law Section 255, which provides: "A person is guilty of unlawfully solemnizing a marriage when: . . . 2. Being authorized by the laws of this state to perform marriage ceremonies and to solemnize marriages, he performs a marriage ceremony or solemnizes a marriage knowing that a legal impediment to such marriage exists." [Jack Chin]
Federal Jury in Vermont Hands Down VT's First Death Sentence Nearly 50 Years
From MSNBC.com: Burlington, VT (AP): "A federal jury Thursday (July 14) ruled that a man should be put to death for kidnapping and killing a supermarket worker in the state’s first capital punishment trial in nearly a half-century. Jurors reached their decision on Donald Fell, 25, on the second day of deliberations. Vermont has no death penalty; Fell was convicted under federal law....In 2001 Fell had agreed to plead guilty in exchange for a sentence of life without parole. But that deal was rejected by then-U.S. Attorney General John Ashcroft, who insisted on the death penalty. The last execution in Vermont was in 1954. Another defendant was sentenced to death in 1957, but the sentence was later commuted." Story... [Mark Godsey]
Trial of Alleged Killer of Jane Mixer Ongoing
The trial of the man accused of murdering University of Michigan Law student Jane Mixer in 1969 started last week. As we previously blogged, the case is fascinating because the DNA of a person who was then 4 years old and has no apparent connection to the individuals involved was allegedly found on Ms. Mixer's body. [Jack Chin]
CrimProf Blog Spotlight: Marshall Dayan of North Carolina Central
This week CrimProf Blog spotlights Professor Marshall Dayan of North Carolina Central. "Born in Miami, FL, Professor Dayan moved to Macon, Georgia as a youth and is a product of the public schools there. After graduating from Central High School, he attended the University of Georgia, where he obtained a bachelor's degree in political science. He began law school at Mercer University's Walter F. George School of Law in Macon, Georgia, but transferred to and received his Juris Doctor degree from Antioch Law School in Washington, D.C.
A member of both the District of Columbia and North Carolina bars, Dayan began his legal career at the law firm of Karr, Lyons & McLain in Washington, DC. In January, 1988, Dayan became Staff Attorney at the North Carolina Resource Center, a specialized public defender office charged with representing those charged and/or convicted of capital crimes, and consulting with lawyers all over North Carolina appointed to represent those charged.
After seven years at the North Carolina Resource Center, Dayan joined the staff of the Office of the Appellate Defender, where he represented death row inmates on direct appeal almost exclusively.
In January, 1998, Dayan opened his own law office, where he engaged in general practice until joining the faculty at NCCU School of Law as a Visiting Professor in Fall, 2001. During that period of time, he briefly practiced with the firm of Unti, Lumsden & Smith in Raleigh, N.C.
Before joining the faculty full-time, Dayan taught trial advocacy and a death penalty seminar as an adjunct, and has taught extensively in both trial and appellate advocacy, with the National Legal Aid & Defender Association. He has also taught at numerous seminars on the law and practice of capital cases. He has published law review articles in the Antioch Law Journal, the Criminal Law Bulletin, the Howard Law Journal and the Loyola-Marymount Law Review. He has also published numerous articles in the The Champion, the magazine of the National Association of Criminal Defense Lawyers.
Professor Dayan remains active in the struggle against the death penalty. He is a former chair of the Board of the National Coalition to Abolish the Death Penalty, and is President of the NC - based People of Faith Against the Death Penalty. In 1998, he won the Paul Green Award of the NC-ACLU and the Paul Green Foundation for his efforts to abolish the death penalty in NC. He has served on the board of directors of the Durham Exchange Club Child Abuse Prevention Center, and volunteers with the Durham County Teen Court program. He has served on the board of directors of Temple Beth Or in Raleigh, NC, and is Vice-Chair of the Commission on Social Action for Reform Judaism, a national policy-making board. His favorite jurists are Thurgood Marshall, William Brennan, and Louis Brandeis."
Kentucky: Judge Upholds Lethal Injections with One Exception
From MSNBC.com: (AP)- Frankfort, KY: In a suit brought by two Kentucky death row inmates challenging the constitutionality of the process Kentucky uses to administer lethal injection cocktails, Franklin Circuit Judge Roger Crittenden upheld the process but "said the method of execution should be changed to rule out one painful step....The judge said the state should not be allowed to administer the fatal drugs through an intravenous catheter stuck into the prisoner’s jugular vein, in the neck, if no suitable veins can be found in the arms or legs. He said it was unconstitutionally cruel and should be removed from the process." State officials plan to challenge that part of Crittenden's ruling on appeal. Story here... [Mark Godsey]
July 15, 2005
Hate Crime Investigations
From the IndyStar.com: "A fire at a Bloomington, (Indiana) mosque early Saturday (July 9) is being investigated as a hate crime by the FBI and members of its Joint Terrorism Task Force. The incident took place at the Islamic Center of Bloomington, where a ground-floor window was broken and an incendiary device was used to start a fire....A burned Quran, Islam's holy text, was found near the broken window, and fire damage inside the building was limited to a wall....In its 2005 annual report, the [Council on American-Islamic Relations in Washington, D.C] noted it had received 141 reports of actual or potential violent anti-Muslim hate crimes in 2004, a 52 percent increase from the 93 reports received in 2003." The mosque plans to hold an open house in a couple weeks to invite the Bloomington community to learn more about the mosque, its memebers, and mission. Story...
And speculation of hate crimes in Los Angeles stemming from a series of freeway shootings: From the LATimes.com: "Activist Najee Ali (director of Project Islamic Hope) called on Monday (July 11) for the FBI to join the investigation into a series of Southland freeway shootings, saying some of the cases were racially motivated hate crimes (consisting of Latinos shooting African-Americans)...although he did not provide information to back up his allegations. Law enforcement officials were quick to say they are unaware of a racial motive in the shootings, which began on the Costa Mesa Freeway in Tustin on March 12. Altogether, four people have died in more than two dozen freeway shootings in Los Angeles, Orange, Riverside and Ventura counties. LAPD Officer Jason Lee said the investigation into the incidents in the city of Los Angeles is continuing, adding that there is 'no definitive reason to believe these are racially motivated.'" Story... [Mark Godsey]
If you Must be Arrested for DUI, Don't wear this
T-Shirt. [Jack Chin]
Kentucky Crimprof Criticizes Corrections
Georgetown CrimProf Neal Katyal on WiFi Mooching
Neal Katyal comments on whether it is legal to use another person's unsecured WiFi hotspot without express permission. [Jack Chin]
Convicted Robber Cites 9/11 Trauma to Get Less Prison Time
From NYTimes.com: Stamford, CT (AP): "A convicted bank robber is citing stress from the Sept. 11, 2001, terrorist attacks in a bid for less prison time, the second time the argument has been used by a bank robber in the last year. Jason Battista, 28, is expected to be sentenced next month for robbing 15 banks in Connecticut, New York and New Jersey. He faces nearly seven years in jail. The former college baseball player, who wore white medical tape on his face during the robberies, was 'impacted deeply' by the terror attacks, said his attorney, Stephen Seeger. He'll base his argument on a psychological evaluation of his client. 'He was unable to function properly because of what he saw,' Seeger said. 'The drug use seemed to spiral out of control after 9-11. He wasn't the same individual.' Last year, another convicted bank robber, Pamela Kaichen, won a reduced sentence after arguing she had a mental condition that developed from volunteering at ground zero in New York following the attacks." Story... [Mark Godsey]
July 14, 2005
SCOTUS to Review "Knock and Announce" Case
From Sherry Colb's Article, When Should Fourth Amendment Violations Lead to Suppression of Evidence? The Supreme Court Takes a "Knock and Announce" Case, on Findlaw.com: "The Court recently granted review in Hudson v. Michigan, a case that addresses the consequences of police violation of knock-and-announce. Specifically, the Court will consider whether evidence obtained after an illegal no-knock home entry should be admissible, across the board, on the theory that it would have been "inevitably discovered" if police had followed the rules. The question provides an opportunity for the Court to consider the rationale behind the inevitable discovery doctrine, and whether it applies in the knock-and-announce context...
The question in Hudson v. Michigan, then, is where a suppression remedy for knock-and-announce violations would fit into the framework above: Would it dislodge evidence destined to be left hidden, or would it constitute a punishment for failure to take a civilizing step? When courts suppress evidence because police violate knock-and-announce, it is virtually always the case that the circumstances in play would satisfy the inevitable discovery exception -- if this exception applied.
Indeed, suppose that, in a given case, the inevitable discovery rule is not satisfied, for a warning and announcement of purpose would likely have led to the loss of evidence. In such a case, that very probability would justify a no-knock entry and thus remove the police conduct from the class of constitutional violations altogether. Police who can show that knocking and announcing would compromise the search about to take place (either evidentiarily or safety-wise) can accordingly dispense with the requirement.
Another way of saying this is to suggest that if the inevitable discovery exception to suppression applies to knock-and-announce, then the exception will preclude the suppression of any evidence obtained as a result of a no-knock entry. The failure to knock-and-announce will either be legal due to evanescent evidence (in which case the evidence should not be suppressed because there was no Fourth Amendment violation) or the failure to knock-and-announce will be illegal but will fall within the inevitable discovery doctrine and permit admission of the evidence on that ground.
Should Exclusion or Inevitable Discovery Govern No-Knock Cases?...
Beyond predicting what the Court will do, moreover, it seems right to bar application of inevitable discovery to the knock-and-announce rule, just as it was right for the Court to bar its application to warrant violations. Absent exclusion, police will have very little incentive to obtain a warrant. Appearing before a magistrate takes extra time that could be spent in the pursuit of other crimes. And a lawsuit in which the plaintiff proves that police lacked a warrant (but otherwise had probable cause) will ordinarily yield little in damages -- certainly not enough to motivate police to change their behavior or to tempt plaintiffs to bring such suits in the first place. Furthermore, a lawsuit in which a plaintiff shows that police searched properly but failed to say "Police, we have a warrant" before entering will not likely yield much in the way of damages. As with warrantless searches, then, the exclusionary rule -- even in its punitive form -- may be necessary to the effective deterrence of violations." Full Article... [Mark Godsey]
From MSNBC.com: Rio De Janeiro, Brazil (Reuters): "Armed bandits in Brazil robbed a vehicle carrying more than 400 breast implants...A spokesman for the state postal service confirmed that assailants, apparently men, robbed the postal van with implants Thursday night, (July 7) in Rio de Janeiro. Each Silimed breast implant costs nearly $400....Margaret Figueiredo, director of silicone implant manufacturer Silimed, said the implants, each bearing an individual number, could now only be sold for clandestine surgeries. Horrific stories abound in Brazil about the illegal operations, which can cause gangrene and death." Story...
Chicago (Reuters): "A bank robber behind the wheel of his car Tuesday sent a note (asking for money) through a vacuum tube to the teller at the drive-through window at a branch of Chicago’s LaSalle Bank, and the teller obliged, returning an undisclosed amount of cash, police said. The exchange was completed through the bank’s pneumatic tube communications system, in which canisters are passed back and forth between motorist and teller." "That Must Have Been One Heck of a Note". [Mark Godsey]
CrimProfs Cited in Sensenbrenner Story
House Judiciary Committee James Sensenbrenner wrote a letter to a panel of the 7th Circuit when they issued a sentencing decision with which he disagreed. Sensenbrenner demanded that the panel revise its decision because, he believed, it was legally erroneous. Indiana LawProf Charles Geyh and Roger Williams CrimProf David Zlotnick are cited in this story. Here's the original opinion; here's the amendment responding to the letter. [Jack Chin]
Prostitute Jailed for Robbery
From the headline in this story I thought the crime might be based on fraud--a prostitute who took money and refused to perform services. In fact, it was a traditional forcible robbery. But I would think that because the contract for sexual services is illegal, a prostitute's taking of money, even with no intent to perform any services, would not be criminal. Or is the fact that there might be a contract defense to a civil suit irrelevant to the question of criminal liability for fraud or false pretenses? [Jack Chin]
Senate Considers Law Ending Suits Against the Gun Industry
From Law.com: "Municipalities' pending lawsuits against the gun industry would come to an abrupt halt if legislation that Senate Majority Leader Bill Frist wants to bring to the Senate floor as early as this week passes. The bill would effectively ban suits against gun makers when their guns are not used for legitimate self-defense, recreational or sporting purposes. Critics say the bill will immunize an entire industry against negligence lawsuits and undermine government's ability to revoke rogue gun dealers' licenses." Full story from Legal Times... [Mark Godsey]
July 13, 2005
Wisconsin: State Supreme Court Grants a New Trial Based on Newly Available DNA Tests
From CNN.com: Madison, WI (AP): "The State Supreme Court has thrown out the conviction of a man found guilty of killing a college student in 1980, citing new DNA tests that undercut key prosecution evidence. The court ruled 4-3 Tuesday that Ralph Armstrong deserved a new trial after new testing done by his defense team showed he was not the source of hair and semen found at the murder scene. Dane County District Attorney Brian Blanchard said he planned to retry Armstrong after piecing together the evidence from the 25-year-old murder. Armstrong has been serving a life sentence for the 1980 murder of 19-year-old Charise Kamps, whose bloodied body was found in her apartment.
Attorney Jerome Buting, who led Armstrong's appeal, said evidence about blood and semen held the prosecution's case together. Without it, he said, the rest of the case was circumstantial. Technology at the time was not sophisticated enough to pinpoint the source of hair, semen and blood found at the scene. During trial, experts testified two hairs found on the bathrobe tie were consistent with Armstrong's and he could not be eliminated as the source of the semen on the robe. But the court, in Tuesday's (July 12) ruling, noted that DNA tests ruled out Armstrong as the source of the semen. 'If the State's theory is correct, that the semen is from the murderer ... then that person is not Armstrong,' Justice Louis Butler wrote for the court." Story... [Mark Godsey]
Teaching Postition Open
Chair of the Criminal Justice Department at Fayetteville State University. Details here. [Mark Godsey]
Utah: Peyote Case
In Utah, a couple started a religion that uses peyote as part of the ritual. Arrested in 2000, in 2004, a unanimous Utah Supreme Court held that they were exempt from prosecution under federal law. They now face federal charges. Among the issues: Does the federal exemption have a racial test (the statute does, the reg does not) and for the mistake of law defense can an individual reasonably rely on a state supreme court's interpretation of federal law? [Jack Chin]
Preppie Killer Convicted Again
Robert Chambers, who killed Jenniver Levin in 1986 in Central Park, allegedly during a bout of "rough sex" has pleaded guilty to heroin possession. He was stopped by police; Chambers had a ticket for running a red light that he never answered so his driver's licence had been suspended. [Jack Chin]
Bureau of Prison to Install Killer Fences
From Talkleft: "Sometimes I think we are living inside a made-for-tv sci-fi movie, co-written by George Orwell and Charles Dickens, and directed by a sadist. Here's the latest. The Bureau of Prisons will be installing fatal electrical stun fences on the perimeters of seven maximum security facilities. The reason: it's cheaper than prison guards. Seven high-security federal prisons will be getting lethal electrified fences in a $10 million project intended to reduce the number of perimeter guards needed. The 12-foot-high "stun-lethal" fences, similar to ones used at some state prisons, can be set to deliver a shock if touched once, and a fatal jolt if touched a second time. If you're a contractor, get your bids in now. The winner of the fence installation contract will be announced in the fall. If you're a taxpayer, ask yourself, how many times have you read about a federal prison breakout? The correct answer is zero." [Mark Godsey]