CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, October 1, 2005

Article Spotlight: Role-Based Policing

St. Louis CrimProf Eric Miller has posted Role-Based Policing: Restraining Police Conduct “Outside the Legitimate Investigative Sphere. Abstract:

In this article I claim that the massive incarceration of African Americans consequent to the War on Drugs and policing practices targeted upon predominantly minority residents of the inner cities have undermined the popular legitimacy of the criminal law. The central challenge of urban policing is how to combat the effects of bias in policing and punishment without reducing the level of law enforcement in poor black communities.

Recent, norm-focused solutions separate public order from drug offenses, and identify the former as most destructive of community cohesion. They thus require the police to ignore low-level drug offenses and instead to engage in preventative policing, singling out quality of life issues, rather than the reactive type of investigative policing directed at apprehending criminals.

My claim is that the police, as currently constituted, are simply the wrong people to engage in preventative policing.  They are trained to use precisely these public order offenses as an opportunity to escalate and transform encounters into the sort of stop-and-frisk drug busts that have caused such controversy among minority communities.

In Role-Based Policing, I introduce the vital and far-reaching distinction between rule- and role-based grants of authority.  Rule-based authority has its basis in adherence to the content of particular rules; role-based in the powers afforded individuals occupying a particular status in specified circumstances or jurisdictions These different justifications for the scope of legitimate authority explain the Supreme Court’s vacillation between a due-process insistence on prior, neutral scrutiny of police activity and a crime-control promotion of reasonableness in evaluating police activity. The triumph of the role-based model authority undermined the Warren Court’s rule-based limits on policing, and permits the invasive stop-and-frisk practices used in urban communities as part of the War on Drugs.

The solution is not more rules to constrain the police, but a separation of the police’s proper investigative role from the preventative role of public order maintenance.  The goal is to delegate preventative tasks of public order policing to individuals who do not have the same to arrest and incarcerate urban residents.  In so doing, this article provides, not only a timely and relevant critique of current prescriptions for policing urban minority communities on the front lines of the War on Drugs, but an innovative solution to the legitimacy crisis facing law enforcement in the inner city.

Download paper here.

October 1, 2005 in Scholarship | Permalink | TrackBack (0)

Scott Turow to Speak on Death Penalty at Vanderbilt

Turrow_1 NASHVILLE, Tenn. – Attorney and best-selling author Scott Turow will give a talk “Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty” Thursday, Oct. 6, at 7 p.m. at Vanderbilt University.

The event, which is free and open to the public, will be held in the ballroom of the Student Life Center, located off of 25th Avenue South, on Vanderbilt’s campus.

The title of Turow’s talk mirrors the title of his latest book published in October 2003. His lecture is part of the Project Dialogue series, a yearlong, university-wide program that seeks to involve the entire Vanderbilt community in public debate and discussion, and attempts to connect classroom learning with larger societal issues.

Project Dialogue, which started in 1989, is held every other year at the university and allows each student generation the opportunity to participate in two Project Dialogue series while attending Vanderbilt. Each year's series centers on a particular theme. This academic year’s theme is "Crime & The Ultimate Punishment."

An accomplished author, Turow has sold approximately 25 million copies worldwide and his books have been translated into more than 25 languages. His first book, One L, was about his experience as a first-year student at Harvard Law School. Novels he has written include Presumed Innocent, which was turned into a 1990 movie starring actor Harrison Ford, The Burden of Proof, Pleading Guilty, The Laws of Our Fathers, Personal Injuries, Reversible Errors and Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.

Turow continues to work as an attorney as a partner in the Chicago office of Sonnenschein Nath & Rosenthal, a national law firm with 600 lawyers. His practice centers on white collar criminal litigation and he devotes a substantial part of his practice to pro bono work, including representations in cases involving the death penalty.

His previous experience includes working as assistant United States attorney in Chicago. He served as one of the prosecutors in the trial of Illinois Attorney General William J. Scott, who was convicted of tax fraud, and as lead government counsel in a number of the trials connected to Operation Greylord, a federal investigation of corruption in the Illinois judiciary.

Turow is currently a member of Illinois’ Executive Ethics Commission regulating executive branch employees. From 2002-2004, he served as chair of the Illinois State Appellate Defender’s Commission, which oversees the state agency that represents indigent criminal defendants in their appeals. He also served as one of the 14 members of the commission, appointed in March 2000 by Illinois Governor George Ryan, to consider reform of the capital punishment system. The commission delivered its report in April 2002.
For more information about upcoming events in the Project Dialogue series, which include a film series and a Nov. 10 lecture by Nina Totenberg, National Public Radio's award-winning legal affairs correspondent, visit www.vanderbilt.edu/dialogue/.

October 1, 2005 in Capital Punishment | Permalink | TrackBack (0)

No Sex Probation Order

Kaimi Wenger at Prawsblawg has a post on a 17 year old probationer sentenced to no sex. [Jack Chin]

October 1, 2005 in Sentencing Corrections | Permalink | TrackBack (0)

Draft Report of the ABA Ad Hoc Committee on Mental Illness and the Death Penalty

Here is the draft report of an ABA Ad Hoc Committee on Mental Disability and the Death Penalty. Please direct any comments to co-chairs Barry Boss (bboss@cozen.com) and Michael Hamden michaelhamden@ncpls.org). [Jack Chin]

October 1, 2005 in Capital Punishment | Permalink | TrackBack (0)

Who Will Replace O'Connor?

Discussion here.  [Mark Godsey]

October 1, 2005 in Supreme Court | Permalink | TrackBack (0)

Friday, September 30, 2005

CrimProf Blog Spotlight: Emory Law's Morgan Cloud

CloudThis week the CrimProf Blog spotlights Morgan Cloud of Emory Law School

"Professor Cloud practiced law as a trial lawyer and litigator in Florida and California before joining the Emory faculty. He is a program director for the National Institute for Trial Advocacy, and lectures to practicing attorneys around the country about trial practice and civil litigation. He has served as chairperson of the Section on Litigation of the Association of American Law Schools. He serves on the advisory board of the Green Bag, a journal devoted to legal history and legal policy issues.

In addition to his Emory courses, Professor Cloud regularly teaches and lectures at other universities. In the United States he has been the Robert Daniels Distinguished Visiting Professor at the University of Iowa College of Law and a Distinguished Visiting Professor in Advocacy and Dispute Resolution at the University of Tennessee. In Europe, he has been a German Marshall Fund distinguished guest lecturer and has taught courses on Corporate Crime in a Global Economy, constitutional theory, and United States law at the University of Konstanz Law School in Germany, at the Central European University in Budapest, Hungary, and at the European Business School in Germany. Professor Cloud lectures regularly to academic and professional groups in the United States and other countries. Recent lectures have been delivered at the University of Heidelberg, the National Judicial College, and the National Center for Justice and the Rule of Law at the University of Mississippi.

His numerous publications include: CONSTITUITIONAL CRIMINAL PROCEDURE, INVESTIGATION TO TRIAL, Fourth Edition (West Group 2005) (with Johnson); CRIMINAL LAW, CASES, MATERIALS AND TEXT, Seventh Edition (West Group 2003) (with Johnson); "Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Supspects" (with Shepherd, Barkoff & Shur) in the University of Chicago Law Review; "Searching through History, Searching for History" in the University of Chicago Law Review; "The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory" in the Stanford Law Review; "Torture and Truth" in the Texas Law Review; "Judges, 'Testifying', and the Constitution" in the Southern California Review; "The Dirty Little Secret" in the Emory Law Journal; and "Pragmatism, Positivism, and Principles in Fourth Amendment Theory" in the UCLA Law Review." 

September 30, 2005 in Weekly CrimProf Spotlight | Permalink | TrackBack (0)

PI Paul Ciolino to Speak at Arizona

Ciolinopicture_004_11 TOP “WRONGFUL CONVICTION” PRIVATE INVESTIGATOR
TO TALK AT THE COLLEGE OF LAW

Internationally renowned Paul J. Ciolino, famous for participating in the release of innocents from prison, will speak at the University of Arizona, Rogers College of Law on: Friday, October 7, 2005, 12:15 p.m. – 1:30 p.m.
Rogers College of Law, Room 140, 1201 E. Speedway (Speedway and Mountain), Tucson, AZ

This presentation is open to the U of A community and to the public.  Pay parking is available in the UA garage at Park and Speedway.

Called “One of America’s top five investigators” by CBS News Anchor Dan Rather, Paul Ciolino is most known for his work in complex criminal and civil investigations.  His participation in wrongful conviction investigations has helped free five men from death row in Illinois.  In February of 1999, he obtained a dramatic videotaped confession from a double murder suspect, which was shown on TV stations across the western hemisphere.

Ciolino is a past national director of the National Association of Legal Investigators, Inc. (NALI), and a past president and life member of the Special Agents Association in Chicago.  In 1999 he was named CII’s “Investigator of the Year.”  Currently Ciolino is the owner of Paul J. Ciolino & Associates, and Dearborn Process Services in Chicago. He is a popular lecturer at both investigation seminars and universities across the country, and appears regularly on CNN’s “Burden of Proof.”  He has also coauthored many leading investigative textbooks such as “Advanced Forensic Civil Investigations.” 

Ciolino will speak about the experiences that have gained him so much national, and international, recognition.

This presentation is sponsored by the Law, Criminal Justice and Security Program/Criminal Law Association. More information about the LCJSP/CLA Fall 2005 Speaker Series and schedule can be found at the College of Law website http://www.law.arizona.edu.

September 30, 2005 in Colloquia | Permalink | TrackBack (0)

A Moment of Silence in the Cone of Silence

for the late Don Adams, Agent 86, who added so many humorous catchphrases to the language (sound files):

"Sorry about that, Chief."
"And loving it."
"Missed it by that much."
"The old - trick."
"Would you believe?"
"I asked you not to tell me that."
"The part after 'Listen carefully'."
"There's only one thing that bothers me."
"I think we should use the Cone of Silence."
"I happen to know that at this very moment seven coast guard cutters are converging on this boat. Would you believe it? Seven. Would you believe six? How about two cops in a rowboat?"

[Jack Chin, thanks to George Fishman for the funny headline]

September 30, 2005 in News | Permalink | TrackBack (0)

Abortions of African American Babies would Cut Crime: William Bennett

5 to 1 he regrets the quote.  Story here. [Jack Chin] Here's Paul Butler at Blackprof.

September 30, 2005 in Criminal Justice Policy | Permalink | TrackBack (0)

Defense Wants Nickname Barred from Court

From the AP:  WEST CHESTER, Pa. - A defense attorney has asked a judge to bar any references to his client's nickname — "Scuz" — in his upcoming murder trial, saying the moniker could negatively influence jurors.  Demetrius "Scuz" Fiorentino, 31, of Coatesville, is charged with the April 2004 robbery and shooting death of Joel "Wellz" Taylor, 19, of Queens, N.Y., during a botched drug deal in a Coatesville crack house in Coatesville.  Defense attorney Laurence Harmelin cited the dictionary definition of scuzzball as "an unpleasant, dirty or dangerous person; creep" and scuzzy as "dirty, shabby or foul in condition or nature."  Story . . . [Mark Godsey]

September 30, 2005 in News | Permalink | TrackBack (0)

Thursday, September 29, 2005

Virginia Prof Faces Criminal Charges

From the Cavalier Daily:  "University Police arrested Martin Straume, an associate professor of research in the University Health System, yesterday afternoon on several criminal charges, including the attempted malicious wounding of a female University graduate student.  According to University Police, the attempted malicious wounding of the graduate student occurred Sept. 13 when Straume allegedly attempted to hit the student with his car near Gilmer Hall.  Straume, 47, also was charged with computer harassment, threatening phone calls, computer invasion of privacy and stalking after the graduate student reported a series of incidents to the police, the release stated."  Story . . .  [Mark Godsey]

September 29, 2005 in News | Permalink | TrackBack (0)

Pace to Host Crim Moot Court Competition

The International Program of Pace Law School Proudly announces

The First Annual Pace International Criminal Court Moot Competition

October 14-16, 2005

Please join us for the keynote address

Presented by

Professor David Scheffer

Former U.S. Ambassador at Large for War Crimes &
Chief U.S. Negotiator for the Rome Statute

Friday October 14th at 6:00 p.m.

Moot Court Room

For more information or to RSVP, see www.law.pace.edu/icc

September 29, 2005 in Teaching | Permalink | TrackBack (0)

No Charges in Corpses For Porn Site

A website offers members of the U.S. Armed Forces the opportunity to get free porn in exchange for photos of dead insurgents in Iraq.  The military investigated whether soldiers who contributed to this site were guilty of an offense, and concluded there was not enough evidence of a crime.  Here's WikiNews.  [Jack Chin]  Isthatlegal seems to have broken the story some time ago--congrats, Eric, for the scoop.

September 29, 2005 in International | Permalink | TrackBack (0)

Wednesday, September 28, 2005

New Buie Sweep Case

The Second Circuit suppressed the results of a sweep done after a suspect invited cops into his apartment.  The court found that there were no facts suggesting that someone else might be in th ehouse prepared to launch an attach.  Story here, opinion here.  [Jack Chin, thanks to Jared Hautamaki]

September 28, 2005 in Search and Seizure | Permalink | TrackBack (0)

Criminal Law Job at Iowa

THE UNIVERSITY OF IOWA COLLEGE OF LAW seeks applicants for permanent or visiting classroom and clinical faculty positions.  We are interested in all persons of high academic promise, irrespective of prior teaching experience, and wish to enhance the diversity of our faculty by including among our candidates persons of all races, cultural backgrounds, genders, creeds, ages, as well as members of other groups that traditionally have been underrepresented in the legal profession.  Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College.  Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in criminal law, business law, disability law, immigration, intellectual property, law and economics, regulated industries, and taxation.  Appointment to track and rank will be commensurate with qualifications and experience.  Candidates interested in an academic career in law should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa 52242-1113.

THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer.  Women and minorities are encouraged to apply.

September 28, 2005 in CrimProfs | Permalink | TrackBack (0)

Collateral Consequences and Drug Offenders

A new GAO report talks about the effects of various laws denying federal benefits to drug offenders, including food stamps, TANF, and educational benefits.  [Jack Chin; thanks to Margy Love]

September 28, 2005 in News | Permalink | TrackBack (0)

Federal Prosecution Trends

Story here. [Jack Chin]

September 28, 2005 in DOJ News | Permalink | TrackBack (0)

Ray Krone Gets More Money

Ray Krone, who spent 10 years in prison, including 2 on death row, based on bogus bite mark evidence, settled his suit against the City of Phoenix for $3 million.  He already got $1.4 million from Maricopa County.  Story here. [Jack Chin, thanks to Laura Conover]

September 28, 2005 in Exoneration Innocence Accuracy | Permalink | TrackBack (1)

Iowa CrimProf Tomkovicz and Maryland v. Blake

Jamestomkovicz From a press release:  University of Iowa CrimProf Jim Tomkovicz will be involved in a case to be heard by the U.S. Supreme Court when it opens its new term on Monday, the traditional first Monday in October.

Tomkovicz has submitted an amicus curiae brief to the High Court in the case Maryland v. Blake, a case he believes could significantly reduce Americans' protections against unfair police questioning.

"Legal decisions in recent years have really whittled our Miranda rights down to nothing but the core," said Tomkovicz, an expert on the rights guaranteed in the Supreme Court's landmark 1966 Miranda decision. "The meat has been picked off and there's nothing left but bones."

In the case, Leeander Blake, a teenager, was arrested between 4:30 and 5:00 a.m. by police in Annapolis, M.D. as a suspect in a murder investigation. Blake, who was wearing only boxer shorts and a tank top, was placed in an Annapolis Police Department holding cell. As questioning began, he immediately invoked his right to an attorney and the police left.

A half-hour later, however, a police detective returned and presented Blake with a document that specified the charges. The document stated, in capital letters, that the penalty for first-degree murder was "DEATH," even though Blake, as a juvenile, could not be executed under Maryland law. A second police officer in the room then said to Blake "I bet you want to talk now, huh?" The first officer replied by telling the second officer that Blake didn't want to talk, that he had asked for a lawyer, and that the officers couldn't talk to him at that time. The officers then left the cell. Twenty-eight minutes later, when the first officer returned to the cell with Blake's clothing, Blake asked if he could "still" talk to the officers. He subsequently made incriminating statements to the police before consulting with an attorney.

Blake's attorney convinced the trial judge to suppress the incriminating statements because they had been given without the presence of an attorney even though Blake had requested one. The Maryland Court of Appeals agreed with that ruling and the State of Maryland took the case to the U.S. Supreme Court.

Tomkovicz agrees that the prosecution should not be able to use Blake's statement at his trial. In its decision in Edwards v. Arizona, the Supreme Court has previously held that the police are prohibited from initiating the interrogation of a suspect who has clearly requested an attorney. Once the right to counsel is invoked, interrogation is permissible only if an attorney is present or if the suspect himself initiates communications with the authorities and waives his Miranda rights.

"When Blake asked for an attorney, that should have ended all questioning immediately," Tomkovicz said. "But by returning to his cell with the erroneous and threatening statement of charges and then overtly challenging him to 'talk now,' the officers improperly ignored Blake's request for a lawyer's assistance and initiated a forbidden interrogation. This conduct clearly jeopardized his Fifth Amendment privilege not to be compelled to be a witness against himself."

Maryland admits that the officers did improperly initiate contact with Blake, but claims that the first officer's response to the second officer's conduct showed respect for Blake's right to counsel and "cured" any impropriety. 

Tomkovicz has argued that the officers "violated the Edwards doctrine and improperly approached Blake after he asked for a lawyer" and that "this sort of violation should be considered incurable. The officers here crossed a bright line and could not undo the harm they caused."

In his brief, Tomkovicz asks the justices to ensure that Fifth Amendment rights are preserved by adopting a demanding standard for police who continue to question suspects after Miranda rights have been invoked.

"Criminal suspects have to meet a very demanding standard when they ask for an attorney," he said. "Anything less than a clear, unequivocal request for an attorney does not trigger their entitlement to counsel, according to past Court decisions. In my view, the Court put in place an equally demanding standard for police questioning after a suspect informs them that he needs assistance."

The court will hear oral arguments in the case Nov. 1.

Tomkovicz is an expert in criminal law and criminal procedure and has written four previous amicus curiae briefs to the Supreme Court. He was enlisted to write the brief by the National Association of Criminal Defense Attorneys.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500.

MEDIA CONTACT: Tom Snee, 319-384-0010, tom-snee@uiowa.edu.

September 28, 2005 in Confessions and Interrogation, CrimProfs | Permalink | TrackBack (0)

Tuesday, September 27, 2005

Connecticut: Law Enforcement Agencies Propose New Eyewitness ID Procedures

Leaders in Connecticut's law enforcement community have devised changes to the State's eyewitness ID procedures.  These changes will offer more expansive procedural protection than the procedure the State's Supreme Court urged in a decision last week--that police tell future witnesses, who are about to view a suspect or a photo array, that the perpetrator of the crime "may or may not" be present.

From the Journal Inquirer on NACDL.com: "[T]he development of the new procedures has been going on for months and involves the 13 regional state's attorneys, the Connecticut Police Chiefs Association, and officials in charge of the state-police and municipal-police academies.

Even before the Supreme Court issued its decision [last] week in a case involving the knifepoint robbery of a pedestrian on an East Hartford street, the law-enforcement group had reached a consensus on a set of changes that includes the one urged by the high court...While refusing to overturn the robbery conviction of former Hartford resident Laquan Ledbetter, 22, the Supreme Court strongly suggested that police tell future witnesses who are about to view a suspect or a photo array that the perpetrator of the crime "may or may not" be present.

If police fail to do so, the court ruled, the trial judge must instruct the jury that the approach taken 'tends to increase the probability of misidentification.'  Psychological research has shown that witnesses tend to pick the person in a photo array who looks most like the criminal. The warning that the criminal "may or may not" be present is designed to reduce that tendency.

Morano, [the Chief State's Attorney,] said the 'may or may not' warning was one of the changes the law-enforcement group had decided on before the Supreme Court decision. If police follow the new procedure consistently, he said, there will be no need for any trial judge to give the cautionary jury instruction set out in the decision.

Standard instructions

Under the new procedure, Morano said, a police officer showing a suspect or photo array to an eyewitness will be expected to read a set of standard statements from a form, just as police read the famous Miranda warnings to suspects before interrogating them.

He said those statements will include reminders that it is as important to clear innocent people as to identify the guilty and that people's appearance can change due to changes such as hair styles -- and the statement that the perpetrator may or may not be present. In addition, the officer will say that police will continue to investigate the incident "whether you identify someone or not."

The form also will include a space for the officer to write down any statements the witness makes while viewing the suspect or the photo array. The witness will subsequently be asked to sign the form to confirm what was said.

In addition, the form will include instructions to the officer: not to use words, gestures, or expressions that indicate who the suspect is; to stand outside the field of view of the witness, if practical, in order to avoid giving even subtle, nonverbal feedback; and to avoid making any comment on an identification made by the witness.

The last instruction is designed to avoid the following problem, which has been uncovered by psychological research:

Witnesses who are told they have picked the suspect from a photo array tend to become more confident in the identification. Judges and juries, in turn, give great weight to the confidence of the witness in deciding whether to believe the identification."  Other proposed procedures were rejected. More... [Mark Godsey]

September 27, 2005 in Eyewitness Identification, Law Enforcement | Permalink | TrackBack (0)