Saturday, August 27, 2005
Friday, August 26, 2005
"A graduate of Duke University (A.B.), Columbia University (M.P.A.) and the University of Virginia School of Law (J.D.), Professor Cook clerked for the Honorable Philip M. Pro, United States District Court Judge for the District of Nevada, and served for several years as an Assistant United States Attorney in the District of Nevada and the District of Columbia prior to commencing his career in law teaching. While a federal prosecutor and a member of the Organized Crime Drug Enforcement Task Force, he was responsible for the handling of an array of felony criminal matters, including felony narcotic, white-collar and various arrest-generated cases during the trial and appellate stages. As an Associate Professor of Law, Professor Cook teaches Criminal Law, Criminal Procedure and Evidence."
His publications include, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, and have appeared in the Yale Journal of International Law (forthcoming), the Colorado Law Review, the Notre Dame Law Review, the Brigham Young University Law Review, and the Harvard Journal of Law and Public Policy.
I'm going on the record now: Meth has peaked. For an epidemic to grow, more new people have to come in--of the current users, some will die or stop using. Just like being a heavy crack user (the "crack whore" phrase has persisted as a slang term), being a heavy meth user seems obviously and extremely unpleasant, so non-users looking for a drug will go elsewhere. I understand from people who've studied it that that's what happened to crack. [Jack Chin]
CrimProf Craig Lerner of George Mason has posted The Reasonableness of Probable Cause on SSRN. Here's the abstract:
Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui's laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court's current insistence on a "single standard" lacks historical support. Probable cause should be recast within a reasonableness framework, embracing the common sense view that not all searches equally trench on privacy concerns and not all crimes equally threaten the social order.
Obtain the paper here. [Mark Godsey]
From ACSBlog: North Carolina lawmakers have approved a measure that would require courts to give battered spouses something extra when they seek a restraining order--information on how to apply for a concealed weapon.
The so-called "Domestic Violence Victims Empowerment Act" would encourage victims to seek temporary permits to carry concealed weapons. The bill, which passed overwhelmingly in both houses of the state legislature, would also add protective orders to the evidence a sheriff can consider when determining whether to issue an emergency permit to carry a concealed weapon. Normally, an applicant must wait 90 days for such a permit. The measure becomes law Oct. 1 unless Gov. Mike Easley decides to veto it.
The president of the gun-rights group that pushed for the measure said it's more about helping victims of domestic violence help themselves.
"We're not interested in them shooting their abusers," said Paul Valone, president of Grass Roots North Carolina. "We're interested in delivering a message: When police can't protect these people, they are capable of protecting themselves."
Victim advocates, however, are less enthralled with the bill's passage. Beth Froehling, Public Policy Specialist of the North Carolina Coalition Against Domestic Violence (NCCADV), explained that studies "clearly indicate that firearms and domestic violence are a deadly combination." Purchasing firearms, she elaborated, "is not the answer and does not 'empower' victims."
Thursday, August 25, 2005
Lawyer Moira Rayner, the head of the West Australia Corruption and Crime Commission discovered that her friend was under investigation. She warned the suspect not to talk on the phone because it was being monitored. After being confronted by investigators, Ms. Rayner resigned. [Jack Chin]
From The Standard.com: "In a landmark decision, the High Court ruled Wednesday that current laws on the age of consent discriminate against homosexuals. Justice Michael Hartmann acted in favor of William Leung, 20, who launched a Judicial Review against the government for what he considered unfair laws against gays. Hartmann said existing laws were "demeaning of gay men,'' stereotype them as "deviant,'' and interfere with their private lives on the assumption that homosexuality was "morally reprehensible.'' Civil rights groups described the ruling as "a historical moment for the Hong Kong gay community.'' Hartmann declared that four sections of the law covering homosexual acts, on the books since 1991, were unconstitutional. The Basic Law "must allow for a remedy in appropriate circumstances to those who say that their fundamental rights have been undermined by primary legislation,'' he ruled. Hartmann said that Leung, should not have to face prosecution and life imprisonment before he can use the courts to challenge the constitutionality of laws that infringe upon his rights. Previously, sexual intimacy between two men below the age of 21 was a criminal offence even though sexual intimacy between heterosexuals and lesbians is allowed after the age of 16. Group sex between gay men, even though in private and conducted by consenting adults, was also criminal, while such activities between heterosexuals and lesbians above 16 was allowed. An act of sodomy, submitted as the natural sexual expression of gay men, below the age of 21 was a criminal offence with possible life imprisonment if it was conducted between two men.
During the trial in July, the government conceded that three of the four sections were in breach of the Bill of Rights and Article 25 of the Basic Law safeguarding equal rights because they unfairly distinguished between homosexuals and heterosexuals. However, it maintained that the criminalization of sodomy between men under the age of 21 was not in breach of the constitution since sodomy between a man and a woman under 21 was equally a criminal offence. The judge added that the proposal not to make women criminally liable "demonstrates a reliance on the stereotyped view that the female is per se submissive, the man always sexually the active partner.'' The reason put forward by the government to make both partners of a homosexual act of sodomy below the age of 21 was the "potential for blackmail.''
Citing an Equal Opportunities report to Legco in 2001, Hartmann ruled this attitude exemplified "stereotypical assumptions made of the homosexual community.'' Hartmann also declared that criminalizing sodomy for homosexuals below the age of 21 was indirectly discriminatory of gay men since it deprives them of their natural sexual expression. "Put plainly, heterosexual couples may have sexual intercourse under the age of 21, homosexual couples may not,'' he said.
Leung said that previously, he could not form physical homosexual relationships because of this "criminal threat above my'' head. [Mark Godsey]
Massachusetts officials hope that a new crime lab will clear a big backlog of DNA cases. Since at least 1999, Congress has been pouring big money into eliminating the backlog. PL 108-405 (2004), PL 106-546 (2000), PL 106-113 (1999). Yet, the more they spend, the bigger the backlog grows. Why? With more labs and resources, more investigators want their swabs, hats and cigarette butts found at crime scenes tested. The backlog will never go away. We just had someone from an Arizona government crime lab come speak to my class; the analyst said that nothing gets tested except cases coming up for immediate trial, homicides, and possible serial rapes. [Jack Chin]
Actually, the racial disparity was not found to exist in connection with who is stopped, but rather post-stop treatment. Minorities are substantially more likely to be searched, handcuffed, etc. than whites. Story . . . [Mark Godsey]
Wednesday, August 24, 2005
From a press release: "Abraham S. Goldstein, an influential scholar of criminal law and former dean of Yale Law School, died on Saturday, August 20, 2005, of a heart attack at his home in Woodbridge, Connecticut. Goldstein taught at YLS for almost fifty years and was, at his death, Sterling Professor Emeritus of Law and Professorial Lecturer in Law. He was 80. "Abe Goldstein was a pathbreaking criminal law scholar who understood the underbelly of our justice system, and a courageous leader during a difficult time for our School," said Yale Law School Dean Harold Hongju Koh. "In his scholarship as well as his deanship, his singular strength was his integrity." Goldstein grew up in New York City, the fourth child of Ukrainian immigrants. His father sold fruit and vegetables from a pushcart on the Lower East Side, and the family spoke only Yiddish at home.
In 1976, when accepting Yale Law School's Citation of Merit (the School's highest award), Goldstein recalled that as a boy he never expected to attend an elite university. "Places like Yale were the stuff of dreams and story books, inhabited by remarkable people," he said. Goldstein attended City College of New York and served from 1943 to 1946 in the U.S. Army as a demolitions specialist and counterintelligence agent in Europe. After graduating from CCNY, Goldstein attended Yale Law School with the support of the G.I. Bill. He said in the same acceptance speech that this changed his life: "I became the beneficiary of an historic process which brought to the great American Universities the most diverse student body they ever had--diverse in race, in religion and in ethnic background, and diverse in the unusual quality of our wartime experience." Goldstein worked briefly for the late Raoul Berger in the law firm Cook and Berger, and then became the first law clerk for the newly appointed Judge David L. Bazelon on the U.S. Circuit Court of Appeals. Goldstein spent his next five years as a partner at Donohue and Kaufmann in Washington, D.C., working on complex civil and criminal litigation. In this time, he represented a man on Joseph McCarthy's list of alleged communists at the State Department who was accused of lying to a State Department Loyalty Board. Years later, as a Yale faculty member, Goldstein helped defend then-Yale Chaplain William Sloane Coffin, who was charged with conspiracy to incite draft evasion. In 1956, Goldstein was recruited to join Yale Law School as an associate professor. He became a leader in legal education. At the same time, points out Kate Stith, Lafayette S. Foster Professor of Law, his scholarship drew on his experiences in private practice and in the courtroom. Says Stith, "He wrote with elegance and intellectual power. But ultimately he was not concerned with theory; he was concerned with the impact of criminal law doctrines in real courtrooms and in the real world." Goldstein's first law review article after leaving private practice dealt with the dangers and ambiguities of the law of conspiracy, and it grew out of his experiences as a litigator.
His next article, published in 1960, examined criminal trial procedure, and concluded that the "balance of advantage" lay with the prosecution. Stith says that this article "presaged, in a general way, the changes in the law wrought by the Warren Court over the next decade." She notes that these two early articles, along with many of Goldstein's later writings, became tremendously influential. "While now classics, these writings were pathbreaking when published," says Stith "Moreover, each soon became the seminal work in the area, spawning an immense amount of further research and scholarship." In 1967, Goldstein published The Insanity Defense, which meticulously examined the development of this legal defense. Goldstein argued for a robust but limited insanity defense, whereby mentally ill offenders would be treated rather than punished.
"Goldstein was among the early scholars to examine the subtle differences and similarities among adversarial systems and inquisitorial systems of criminal procedure around the world," says Stith, noting his 1977 article, The Myth of Judicial Supervision in Three Inquisitorial Systems. Stith also argues that Goldstein's warning not to casually borrow legal practices from other nations with different histories and cultures is representative of his carefully balanced approach to scholarship. Goldstein also published influential work on the role of prosecutorial discretion in the U.S., including, in 1980, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea. He was among the early proponents of introducing a respectful role for victims in criminal prosecution. His exhaustive study of the criminal jury concluded that the tradition of secret deliberations is of critical importance. He became a professor of law in 1961, and then the William Nelson Cromwell Professor of Law in 1967.
In 1970, Goldstein was named dean of Yale Law School. It was a turbulent time in American higher education and at the Law School, and Goldstein worked to reunite faculty and students into a cohesive and creative community. He served one five-year term as dean, then returned to his role as a teacher and scholar, satisfied that he had helped restore the Law School's stability and reinvigorated its faculty. Goldstein brought numerous new professors to YLS, including current professors Michael Reisman, Owen Fiss, Bruce Ackerman, Mirjan Damaska, and Alvin Klevorick. At the end of his term, Goldstein was praised for "tough-minded yet understanding leadership" by Yale President Kingman Brewster. Goldstein was named Sterling Professor of Law in 1975. He published four books and dozens of articles. He also served briefly as provost of Yale University. He was a visiting professor at a number of institutions, including Cambridge University, Stanford Law School, Hebrew University, and Tel Aviv University. He received honorary degrees from New York Law School and DePaul University. Goldstein was selected as one of six distinguished faculty members to serve on the Presidential Search Committee that selected current Yale President Richard C. Levin.
Goldstein took an active role in civic life. He served on the Connecticut Governor's Commission to Revise Criminal Statutes, Planning Committee on Criminal Administration, Board of Parole, and Judicial Council. For more than two decades, he took on various leadership roles at the American Jewish Congress. He also worked on several projects with the Central European and Eurasian Law Initiative of the American Bar Association.
Goldstein is survived by his wife, Sarah (Poleyeff) Goldstein; children William Goldstein of Portland, Oregon, and Marianne Goldstein of Peoria, Arizona; brother Sidney Goldstein of Washington, D.C.; three stepdaughters, Laura Schafer, Sylvia Schafer, and Amy Schafer Boger; and six grandchildren. His first wife, Ruth (Tessler) Goldstein, predeceased him." [Mark Godsey]
From NPR.com: "A new technology that monitors whether people on parole are using drugs -- or are even in a room where others are using drugs -- is being tested in Michigan. Many in law enforcement have high hopes for the technology, since drug use is one of the greatest causes of recidivism." Listen to NPR story here. [Mark Godsey]
CrimProf Fred Moss of SMU discusses how appellate courts are loathe to overturn Batson rulings by lower courts in a website dedicated to news of Austin, TX (free registration required).
Ohio State CrimProf Joshua Dressler was quoted in the Arkon Beacon Journal about the conviction of Ohio Governor Bob Taft. (free registration required).
Tuesday, August 23, 2005
| Marking its fifth commemoration of September 11th, the School of Law will host the panel discussion "Civil Liberties in Wartime", September 7, 2005 at 12:10pm in Room 107. Panelists include:|
Mark V. Tushnet, Carmack Waterhouse Professor of Constititutional Law, Georgetown Law Center
Mark Graber, Professor of Law holding a joint appointment as Professor, Department of Government and Politics, University of Maryland, College Park
Michael Greenberger, Law School Professor and Director, University of Maryland Center for Health and Homeland Security
Chandra Sriram, Visiting Associate Professor of Law
Professors Tushnet, Graber and Greenberger and contributors to a newly published collection of essays, At War with Civil Rights and Civil Liberties, edited by John Stack and Thomas Baker (Rowman & Littlefield, Inc., 2005). Their essays and this panel will explore issues of executive power, the rule of law, and the balance of rights, liberties and threats in the context of the War on Terrorism and the U.S. invasions in Afghanistan and Iraq.
Overflow seating available in adjoining rooms. Pizza lunch will be served.
Welcome to Brandon L. Garrett, who recently joined the Virginia law faculty as an associate professor of law. His areas of research and publication include remedies, civil rights, criminal procedure, constitutional law, and new forms of public governance. His teaching interests include criminal procedure, wrongful convictions and post-conviction remedies.
While a law student, he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit. He then worked as an associate in New York City at Cochran, Neufeld & Scheck LLP, litigating wrongful conviction, DNA exoneration, and police brutality cases, and at Beldock Levine & Hoffman LLP, litigating civil rights, employment discrimination, criminal defense, and mass tort cases.
List of publications here. [Mark Godsey]
From Law.com: "Pennsylvania prosecutors should think twice about displaying during an opening statement a handgun that will later be entered into evidence during a trial, a state appeals court panel has suggested in a case of first impression. In Commonwealth v. Parker, a three-judge panel of the Superior Court ruled that although a Philadelphia assistant district attorney should not have been permitted by the trial court to display the gun allegedly belonging to Maurice Parker, the error was harmless, given the weight of the evidence brought against Parker. "We do, however, caution against the use of such tactics by prosecutors in the future," Judge John T. Bender wrote. "The display of the gun by the prosecution could not honestly be said to serve any legitimate purpose except to inflame the jury," he added later." More . . . [Mark Godsey]
Professor Moin A. Yahya of Alberta Law School has posted Deterring Roper's Juveniles: Why Immature Criminal Youth Require the Death Penalty more than Adults - A Law & Economics Approach on SSRN. Here's the abstract:
In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association's amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because they underestimated the odds of being caught and convicted. For these three reasons, the Court held that they were not only less deterrable, but that they were also not as culpable as adults. This paper takes issue with this logic, especially the idea that juveniles cannot be deterred. If indeed juveniles are risk-lovers who cannot engage in cost-benefit analysis, because they prefer the present and misperceive the odds of being caught and punished, then the proper response is to increase the penalties that juveniles face. Using law and economics methodology, I use a simple numerical example to illustrate that juveniles can be deterred no matter how abnormal their preferences are. The deterrence, however, comes at a penalty much higher than what would be required to deter a normal risk-averse individual. Another way to think of juveniles is as demanders of crime who have a very inelastic demand for crime. Thinking of punishment as the price of crime necessitates a very high price to deter juveniles, a price much higher than what adults should face. The Supreme Court, by abolishing the death penalty for juveniles, deprived the States of a valuable tool that they could use to combat juvenile violence. In this paper, I also introduce empirical evidence from a series of econometric studies that show that juveniles indeed can be deterred by punishment and to the same degree as adults. Given that juveniles can be deterred, it follows that if adults can be deterred by the death penalty, than so can juveniles. A plethora of econometric studies have emerged showing that the death penalty does reduce homicides and saves lives. The evidence of juveniles' responsiveness to punishment belies the medical claims advanced by opponents of their execution. Furthermore, I argue that the only criteria for culpability is the ability to tell right from wrong, something that even the opponents of juvenile executions conceded juveniles have. I also show that many violent adult criminals suffer from the medical characterizations that typify Roper's juveniles. Hence, to rely on medical evidence to decide who should be spared from the death penalty is an absurd proposition, and medical characterizations should be reserved for what medicine does best, namely treatment.
To obtain the paper, click here. [Mark Godsey]