September 17, 2005
Son of Jeb Bush Arrested in Texas
Public intox. and resisting. Story here. [Jack Chin]
FL: Criminal Justice Students Investigate Unsolved Murders
The local police authorities do not have the staff to investigate cold cases, so an advanced criminal justice class is going to check out several unsolved homicides from the 1970s. Story here. [Jack Chin]
Hmong Immigrant Guilty of Six Murders
Story here. [Jack Chin]
Former Prosecutor Arrested for Passing Materials to Client-Inmate
Soap, turkey sandwich: c'mon, it is an overreaction to lock up a lawyer for that. 300 pills: Not part of the attorney-client relationship. Story here. [Jack Chin]
Criticism of Padilla Detention
Editorial here. [Jack Chin]
September 16, 2005
CrimProf Blog Spotlight: Case Western's Lewis Katz
Professor Katz earned his JD cum laude from Indiana University where he was Note Editor of the Indiana Law Journal and elected Order of the Coif. He was a Lieutenant in the United States Naval Reserves (JAG) and has become "[a] specialist in criminal law whose primary interest is the Fourth Amendment...Mr. Katz was called an "expert in criminal law" by the New York Times. His books and articles have been cited in more than 200 cases and legal articles by numerous courts including the United States Supreme Court. He is the author of The Justice Imperative (1980), Know Your Rights (1993), and Ohio Arrest Search and Seizure (2002), and co-author of six other books: Justice Is the Crime (1972), New York Suppression Manual (1992), Ohio Felony Sentencing Law (2002), Ohio Criminal Justice (2003), Questions & Answers: Criminal Procedures (2003), and Baldwin's Ohio Practice: Criminal Law (2003). A longtime member of our faculty (since 1966), he teaches both Criminal Law and Criminal Procedure and directs the Graduate Program for Foreign Students in U.S. Legal Studies."
Professor Katz says, "Criminal Law and Criminal Procedure tell a great deal about society, its values and its ability to protect the rights of all its citizens. It is said that society should be measured by how well it protects the rights of its worst citizens. We have a very strong criminal law/procedure curriculum at CWRU. Students also have the opportunity to test the waters in the Criminal Defense Clinic. I enjoy engaging in criminal law reform and writing for criminal law practitioners and for non-lawyers. I think it is important that we reach out to the greater community beyond the legal profession." For a list of Professor Katz's articles and information about his professional activities, click here.
9th Circuit: No Reasonable Suspicion Needed for Border Patrol Agents to Disassemble Cars to Search for Contraband
From Law.com: (The Recorder)--This past Wednesday, the 9th U.S. Circuit U.S. Court of Appeals, ruled that, in their search for contraband, border agents "may disembowel gas tanks, drill holes in truck beds and disassemble car doors without reasonable cause for suspicion." Judge Betty Fletcher wrote a concurrence to her own opinion in U.S.A v. Chaudhry, 05 C.D.O.S 8344, in which she expressed her "'distaste for the government's game-playing.'...The game-playing involved the government's goal of getting an appeals court to agree that border agents could take apart an automobile without apparent suspicion," even though all three cases involved "clear reasons for suspicion that the government chose not to enter into evidence -- from drug-sniffing dogs to visibly nervous drivers." Still, according to Judge Fletcher, "the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border...This would have an ancillary benefit for the government -- it would not have to prove the reliability of its drug-sniffing dogs."
"The question of whether the government may conduct such extensive searches without suspicion, she added, "'is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government's desire to push the envelope to its limits: to find out how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.'"
"Northern District of California Federal Defender Barry Portman said Fletcher seemed constrained by the longstanding trend of U.S. Supreme decisions expanding the freedom of border guards to conduct random searches." The full story... [Mark Godsey]
September 15, 2005
Wayne State CrimProf on Dateline NBC Tonight
Tonight, Friday September 16, at 8 pm, Wayne State CrimProf David Moran will appear on Dateline NBC to speak about a murder case in which he was involved as an attorney.
Here are some details about the case and Moran's role: "On June 15, 1974 a college student was found raped and strangled in her apartment in Saginaw. While many people were interviewed, no one was arrested and it became a “cold case.” In 1995 a man was arrested for the murder; the night the crime was committed was the first night of his honeymoon. Moran was an attorney on the case when it reached the appeal stage in the late 1990s. At the time, Moran was an attorney with the State Appellate Defender’s Office.
Moran was interviewed this past July by reporter Chris Hansen about the case, which is again before the courts because of an appeal by the defendant. Moran addresses many legal aspects of the case, including other possible suspects, the reliability of some of the witnesses, potential prosecutorial misconduct, and various medical aspects of the case.
David Moran has argued three cases before the U.S. Supreme Court and will appear before the Court again when their next term begins. He has been an assistant professor of law at the WSU Law School since 2000 and teaches a wide variety of criminal law and evidence classes." (From Wayne State Law School's Law School News) [Mark Godsey]
US House Approves More Stringent Sex-Offender Monitoring and Expansions to Hate Crime Law
From MSNBC.com: Washington (AP)--On Wednesday, the US House approved the Children's Safety Act, "which, among its many provisions, creates a national Web site for child sex offenders and stipulates that sex felons face up to 20 years in prison for failing to comply with registration requirements...The sex offender bill...also requires felony offenders to register for life and authorizes the death penalty for sex crimes resulting in the killing of a child." House Judiciary Committee Chairman James Sensenbrenner, R-Wis., called the bill a response to a "'national crisis' in child sex offenses. He said that of some 550,000 convicted sex offenders in the nation, the whereabouts of 100,000 are unknown." Rep. Mark Foley, R-Fla., commented that 'We track library books better than we do sexual predators.'
In addition to tightened sex-offender monitoring, the bill also expands the "current hate crime law to include some crimes involving sexual orientation, gender and disability. Under current law, the federal government assists local and state authorities prosecuting limited types of crimes based on the victim’s race, religion or ethnic background." Sensenbrenner expects the bill to be approved by the Senate and signed into law by the end of the year. Story... [Mark Godsey]
MA: Are Fingerprints Fallible?
The Massachusetts Supreme Judicial Court heard argument last week in a case challenging the scientific validity of fingerprint evidence. Three Boston CrimProfs, BU's Stanley Fisher, Northeastern's Daniel Givelber and New England's David Siegel wrote this amicus brief arguing that fingerprint comparison evidence has not been scientifically tested and validated. [Jack ChIn]
New Article Spotlight: Federal Criminal Law and Tribal Self-Determination
At a University of Arizona faculty workshop, Minnesota CrimProf Kevin Washburn just presented this fascinating paper on federal jurisdiction over serious crimes in Indian Country. The paper is forthcoming in the North Carolina Law Review. The abstract:
Under the rubric of "tribal self-determination," federal policy-makers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according to critics, because crime is worse for American Indians than any other ethnic group. The failure to embrace self-determination in federal Indian country criminal justice is curious. Criminal law has a central role in shaping and expressing community values and identity. And a community that cannot create its own definition of right and wrong cannot be said in any meaningful sense to have achieved true self-determination. Tracing the history of the century-old Indian Major Crimes Act, it is clear that the Act's original purposes, increasing federal control and encouraging assimilation, are aimed at colonization and lack legitimacy in the modern era. Since the 1960s, mainstream federal Indian policy has become much more enlightened and the Major Crimes Act has become an embarrassing anachronism. Tribal self-determination strategies in criminal justice could help tribes get closer to true self-determination and help Indian country recover from the current criminal justice crisis.
SSRN author page here.
Missing PA Prosecutor; UPDATE
There is little sign of five term Centre County, PA prosecutor Ray Gricar, missing in spite of an extensive search. He has been missing since April 16. [Jack Chin] UPDATE: There's a website. Update: Still missing; daughter passes polygraph.
September 14, 2005
Ohio CrimProfs Comment on OH Governor's Call for a Second Clemency Hearing
Ohio Governor Bob Taft's decision to follow the Parole Board's recommendation to delay the September 20 execution of John Spirko (as blogged about here) has triggered debate about the delay's impact on the future of capital punishment in Ohio. The delay is based on the state presenting information of questionable accuracy during Spirko's clemency hearing.
Ohio Northern CrimProf and capital punishment expert Victor Streib believes that the delay is unlikely to have a broader impact because Taft's decision is specifically related to the facts of the Spirko case rather than Ohio's capital punishment policies in general. He commented that at best, "maybe there’s sort of a warning here that, 'Make sure what we say in these hearings is accurate.'"
Ohio State CrimProf Douglas Berman has a different view. He believes the delay could reduce the state's credibility in future clemency hearings. "It will not only lead the parole board and maybe even the governor to be suspicious of the evidence they get from the attorney general, but will provide lots of fodder for defense attorneys to say over and over again, 'Well, I know the prosecutors say that, but they said that kind of stuff before and they were not playing above board,'" he said. Cantonrep.com's full story... [Mark Godsey]
Taiwan President Promises To Abolish Death Penalty
Story . . . [Mark Godsey]
Texas Board of Pardons and Parole Recommends Delay in Woman's Execution; Governor Agrees: UPDATED--EXECUTED
Frances Newton, found guilty of murdering her husband and two children in 1987, was scheduled to be executed at 6 p.m. on December 1 in Houston, Texas. On November 30, the U.S. Court of Appeals for the Fifth Circuit denied her appeal, but the Texas Board of Pardons and Parole recommended in a 5 to 1 decision to delay the execution for 120 days to review ballistics evidence. The evidence has been handled by the Houston police crime laboratory, the same lab that misplaced and recently discovered 280 boxes of evidence involving 8000 cases, although Newton's case is not one of these 8000.
According to David R. Dow, a CrimProf at the University of Houston who runs the Texas Innocence Network, a clinic representing inmates contending wrongful convictions, "There are strong independent reasons for believing that she is actually innocent." More... [Mark Godsey]
UPDATE: Texas Governor Rick Perry agreed with the Parole Board and granted the stay to examine evidence of possible innocence. More...
New Article Spotlight: Therapeutic Jurisprudence and Criminal Defense Lawyers
Arizona and University of Puerto Rico CrimProf David Wexler has published Therepeutic Jurisprudence and the Rehabilitative Role of the Defense Lawyer in the St. Thomas Law Review. The abstract state in part: "In this article, I will identify the potential rehabilitative role of the attorney from the beginning stages -- possible diversion, for example -- through sentencing and even beyond -- through conditional or unconditional release, and possible efforts to expunge the criminal record. This article has two principal purposes; first, to call for the explicit recognition of a TJ criminal lawyer, and to provide, in a very sketchy manner, an overview of that role; second, to propose an agenda of research and teaching to foster the development of the rehabilitative role of the criminal lawyer." SSRN version available here. [Jack Chin]
Sovereignty Over Criminalization in Europe Strikes Familiar Chord With State/Federal Tension in U.S.
From Timesonline.com: "A landmark legal ruling has handed Brussels the power to create criminal legislation for member states, in what eurosceptics claim is a further erosion of national sovereignty. The ruling came at the end of a test case between the Commission and 11 EU member states, including Britain, which opposed the idea that the Commission could tell national governments what kind of offences against EU environmental law should be deemed to be criminal offences. The verdict in the Commission’s favour now opens the door to the EU dictating when breaches of a whole range of agreed EU policies should be treated as criminal.
A Commission statement said: "The judgment concerns particular environmental legislation, but it sets an important precedent for Community law in general". The head of the Commission’s legal service, Michel Petite, hinted that in future the Commission might not only push member states to apply criminal sanctions, but also to set the scale of sanctions - for instance a penalty of two years in jail to enforce an EU directive. The leader of Britain’s Tory MEPs Timothy Kirkhope this afternoon gave warning about more sovereignty lost to Brussels in the wake of the court ruling:
"This appears to be a worrying erosion of British sovereignty. Nothwithstanding our support for environmental protection, this is a blow to Britain’s ability to decide things for ourselves.
"I fear the Commission sees this as an opportunity to extend its powers and start interfering in the criminal law of member states. It is a significant transfer of power to the Commission, sanctioned by a court which tends towards the integrationist approach."
"The decision on whether or not to criminalise offences in Britain should be a matter for Britain, not for the EU. We all support penalties against environmental vandals, but this sets an alarming precedent."" Story. . . [Mark Godsey]
6th Circuit: Claim of Actual Innocence on Post Conviction Does NOT Waive Attorney Client Privilege
The defendant filed a habeas alleging Brady violations and actual innocence. The prosecution filed a motion alleging that by claiming actual innocence, the defendant had waived the attorney client privilege, and the prosecution should have access to any incriminating statements made by the inmate to his attorney prior to trial. The lower court agreed, finding that a claim of actual innocence waives the privilege. The 6th Circuit reversed. Decision. [Mark Godsey]
September 13, 2005
DOJ IG Report on Mishandling Informants
Here. [Jack Chin]
Nursing Home Owners Charged in Katrina Deaths
Nursing home operators failed to save a bunch of residents. This will be a tough case to win, given the emergency and confusion--won't everybody say "I thought someone else was handling it?" Even people who have a duty to act don't have to act when to do so would cost them their own lives, or be ineffective; here, there's an argument that they would have died had they stayed, and even if they stayed, nothing could have been done. Which is not to say it is a proud moment for them. Story here. MSNBC video here. [Jack Chin]