January 29, 2005
California Train Wreck Case--How Do They Get to Murder?
CourtTV reports that the man whose suicide attempt-gone-bad caused 11 deaths in the big train derailment this week in California could be facing the death penalty. Prosecutors are still deciding whether to charge him with death specs. Story . . . He was attempting to commit suicide by parking his car on train tracks, and then lost his nerve at the last second and bailed. The train smashed into his car, derailed, and passengers died.
How do they get to capital murder? One possibility is First Degree Felony Murder under California Penal Code 189: "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . train wrecking . . . is murder of the first degree."
This route is may be doubtful. California Penal Code 218 and 219 deal with train wrecking, so the use of the term in the felony murder statute probably does not deal with train wrecking in general, divorced from the specific statutory felonies. However, 218 and 219 apply to train wrecking by fire, which is not what happened in this case. (218 applies to any person "who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train").
A more promising theory is the Special Train Derailment Statute, which has its own death penalty: Cal. Penal Code 219: "Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same . . . is guilty of a felony and punishable with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof . . . ." Evidently there are no cases interpreting the section.
The critical question here is what "with the intention of derailing" means; in Model Penal Code terms, does it mean the defendant's purpose in the sense of subjective goal has to have been derailment, or is the defendant's mere knowledge, awareness of a substantial certainty that the train would derail, enough? On the evidence as reported in the newspapers, it will be easier to prove knowledge; whether he had the purpose of derailing the train is questionable.
Although there may be a California case giving a clear answer that I [Jack Chin] could not find in a quick search, what I found conflicts about the meaning of the mens rea term "intent" under California law. Compare People v. Osband, 919 P.2d 640, 681 (Cal. 1996) ("To '[i]ntend' means 'to have in mind as a purpose or goal....'" (People v. Balcom (1994) 7 Cal.4th 414, 423, fn. 2, 27 Cal.Rptr.2d 666, 867 P.2d 777") with People v. Smith, 67 Cal.Rptr.2d 604, 613 (Cal. App. 1997) ("'As Professor Perkins puts it: 'Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)."').
There's a federal statute covering similar ground, 18 USC 1992; it has been held not to require a specific intent to derail the train; that derailment is a natural and probable consequence of conduct wilfully performed may be enough. See, e.g., United States v. Alcorn, 329 F.3d 759 (10th Cir. 2003); United States v. Dreding, 547 F.2d 471 (9th Cir. 1976). However, the language of the federal statute and the California statute is sufficiently different that the federal decisions may not be particularly weighty.
For cases under the predecessor version, see People v. Thompson, 43 P. 748 (Cal. 1896); People v. Thompson, 46 P. 912 (Cal. 1896); for a conviction under a misdemeanor version of the statute holding that no mens rea is required, see People v. Bohmer, 120 Cal. Rptr. 136 (Cal. App. 1975). These and other California court opinions available here. [Mark Godsey and Jack Chin]
You Can't Make This Stuff Up
A man who robbed a convenience store in Minnesota was caught when he returned a few minutes later to reclaim the gun that the store clerk had snatched from his hand during the robbery. In Michigan, a woman was convicted of DUI after having had too much Listerine. Listerine contains 27% alcohol. In NC, a man who was prounced dead at the scene was taken to the morgue, where the coroner noticed that he was breathing faintly. The man was taken to the hospital where he remains in critical condition. Here's a story about some kids who drew suspicion when they started showing up before school at a convenience store to buy candy with $100 bills. Turns out, one of the youngsters had run across tens of thousands of dollars from a drug dealer's stash. A police officer in London says he has the cure for high crime rates: getting the public to read more Jane Austen novels. Finally, police in Cleveland have decided not to press animal cruelty charges against a high school student who skinned and cooked a guinea pig and rabbit that he purchased from a local pet store. An important fact in their decision not to prosecute was that the young man killed the animals for a cooking class, and the students and teacher dined on the would-be pets afterward (the fact that they ate the animals meant the killings were not "unnecessary" under the cruelty statute, according to police). [Mark Godsey] I've got to add: The only difference between a chicken, pig or cow and some animal that some consider horrible to eat is a highly culturally contingent sense of cuteness or appropriateness. Many Americans eat rabbit and squirrel, and guinea pig is a common food in South America. (For the record, I only eat tofu, made from beans that died of natural causes.) [Jack Chin]
New Article Spotlight
Julie Goldscheid of CUNY has recently published Crime Victim Compensation in a Post 9/11 World in the Tulane Law Review. Here's the abstract:
In this article, Professor Goldscheid explores the barriers to economic independence faced by victims of domestic and sexual violence by comparing the government programs for those victims with the federal September 11 Victim Compensation Fund created for victims of the 9/11 terror attacks, another group of victims systematically impacted by violence. Professor Goldscheid chronicles and compares the history, rationales and underlying theories that animate the programs. She argues that the programs contain different, but opposite, flaws. Neither is driven by a coherent theoretical foundation or a methodical analysis of victims' economic realities in the aftermath of the violence. She concludes that the tremendous differences in program approach are not warranted by the differences in program purpose or victims' experience.
Professor Goldscheid argues that future compensation programs for victims of domestic and sexual violence should maximize cost spreading and should redress the systemic unavailability of traditional systems of recovery. She proposes an approach that is grounded in empirical data describing the reality of victims' experiences and that eliminates vestiges of bias against victims of domestic and sexual violence. The approach would generally retain the modest award structure of the state programs, but would integrate the September 11 Fund's overall approach to victims, marked by meaningful efforts to address their resulting unmet practical needs, by extensive public education and outreach and by efforts to encourage participation and maximize program utilization. She cautions against the dangers of developing a two-tier track of crime victim compensation programs - one for victims of terrorism and one for victims of other acts of violence - and identifies risks that such a dual system would present. [Mark Godsey]
January 28, 2005
Job Announcements: Texas Tech
The Texas Tech University School of Law seeks to fill two new professorships, each with a substantial endowment. One of the positions is limited to criminal law and procedure, and the other is open to any field of law. As a general guideline, candidates should have ten or more years of full-time teaching experience and a record of scholarship that clearly demonstrates the professor's potential to make a long term contribution to Texas Tech and to the legal community.
Judge George E. Killam Professor of Criminal Law
Experience: 10+ years
Endowment: Multimillion dollar (income to supplement senior level salary)
Field: Some aspect of criminal law or procedure
Governor Preston B. Smith Professor of Law
Experience: 10+ years
Endowment: $560,000 (income to supplement senior level salary)
If you are interested in one or both of these positions-or would like to nominate another potential candidate-please contact Professor John Krahmer, Chair of the Search Committee, at:
Foundation Professor of Commercial Law
Texas Tech University School of Law
1802 Hartford Avenue
Mail Stop 0004
Lubbock, Texas 79409-0004
Enviromental Crime Fugitive on State's "Most Wanted" List
A 64 year old Maine man who fled rather than serve his 1 year sentence is now on that state's most wanted list. MaineToday reports that "Most of Maine's most-wanted criminals are accused of burglaries, thefts, scams and drug crimes." Here's his photo. [Jack Chin]
Since the Supreme Court handed down Booker a few weeks ago, thousands of petitions for resentencing have flooded the federal courts causing an enormous backlog. Details. . . [Mark Godsey]
The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law
On March 10-11, 2005, the Justice for Children Project, in conjunction with the Ohio State Criminal Law Journal and the Center for Law, Policy, and Social Science, will sponsor a conference entitled The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law. Unlike other symposia, which generally have focused on social scientific explanations for juvenile behavior and crime, the interdisciplinary symposium will look to recent developments in the "hard" science of brain development and function and the implications of that research for concepts of mens rea.
Details, brochure and registration here. [Mark Godsey]
Conference Announcment: Undercover Policing and Emerging Enforcement Powers: Perspectives from Two Sides of the Atlantic
University of Illinois, March 11-12, 2005. Too many CrimProfs to mention; details here. [Jack Chin]
New Article Spotlight
Criminal sanctions work to reduce crime in a variety of ways. In a simple economic sense, legal sanctions raise the cost of criminal conduct. Expressive law scholars have shown that the criminal law can help to reduce crimes in other ways as well - by shaping preferences, changing social meanings, and encouraging non-legal sanctions. Lawmakers rely on these mechanisms when they attempt to use criminal laws to change behavior. But lawmakers and scholars alike should keep in mind that the expressive function of criminal law does not always work as intended.
In order to illustrate that point, this article examines street culture's reaction to criminal drug policy. The first section describes street ideology and the social meaning of crack dealing and marijuana use. It relies not only on recent academic work in the fields of sociology and history, but also on a variety of primary sources, including music, movies, magazines, poetry, and memoirs. These sources demonstrate that in street culture, drug policy has utterly failed to produce its intended social norms. In fact, if anything, criminal drug policy has helped to create a system of norms and meanings that undermine the state's goal.
The second section lays a foundation in theoretical sociology for the argument that expressive criminal law can fail. It draws on several concepts, including strain theory, differential association, and labeling theory, from canonical sociological texts. The third section examines implications for recent law and norms scholarship. Finally, and most provocatively, the article questions whether criminal law's production of oppositional cultures is truly a failure or simply part of its intended function.
To obtain the paper, click here. [Mark Godsey]
January 27, 2005
New Case: Terry Pat Downs
The Eighth Circuit held yesterday in U.S. v. Hanlon that a police officer did not exceed the scope of a Terry patdown when the officer reached into the suspect's pocket after feeling a hard, cylinder-shaped object one-half inch to an inch in length and with the diameter of a penny. Not surprisingly, the object turned out to be a vial of meth rather than a weapon. Of course, the rule is that officers are only allowed to reach into the clothing during a Terry patdown if they are able to determine during the patdown that a weapon is present, or if they develop probable cause based on the "plain feel" doctrine that contraband is present. The Eighth Circuit upheld the search because the officer in question had testified at the suppression hearing that he had not yet "ruled out" the possibility that the object was a weapon. The officer argued that the object could have been a very small pocketknife.
Unless I'm missing something, the argument that the object in question could have been a one-half inch long, cylinder-shaped pocketknife strains credulity. Any reasonable police officer would have concluded that such an object was probably a vial of narcotics and not a weapon. This case demonstrates that we need to develop some type of standard which holds that officers can reach into the clothing only if a "reasonable officer" would have concluded that a weapon may have been present based on what he felt during the patdown. Otherwise, Terry's promise that Terry searches must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer" is illusory. [Mark Godsey]
NPR: California Prisons put New Empahsis on Rehabilitation
Story here. [Jack Chin]
New Article Spotlight: Chavez and the Privilege
Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take better account of the remedies it provides. Finally, recognizing the need to cement these views, the article proposes a broad damages remedy for unconstitutionally coercive interrogation in violation of the privilege or related due process doctrines. [Mark Godsey]
CrimLaw is on a drug kick; here's the marijuana news. Grits For Breakfast thinks the Caballes decision is a dog. Sentencing Law and Policy believes times may be changing with respect to expensive, long-term prison sentences. TalkLeft blogs the Ohio Supreme Court's reversal of a death sentence against a Scotsman. The Confrontation Blog discusses a Wisconsin Supreme Court case addressing the issue of whether cross-examination by another party can render prior testimony admissible. WhiteCollarCrimeProf blogs the question of whether former execs Ebbers and Scrushy will testify in their criminal trials. [Jack Chin]
Robber Calls Victim to Ask for Date
Uses own cell phone to make call; gets arrested, no date, either. Story here. [Jack Chin]
Watch Webcast of I.C.C. Prosecutor's Talk at Harvard Law
On Wednesday, January 19, Luis Moreno-Ocampo, prosecutor at the International Criminal Court, spoke to students at Harvard Law School. Led by Professor Martha Minow, an expert in international justice, Ocampo spoke about his role as the first I.C.C. prosecutor and the challenges of working within an emerging legal system. To watch the webcast of his talk on your computer, click here. [Mark Godsey]
January 26, 2005
NYU Center for Research in Crime and Justice
I've attended some of their events; this center is really cool, an outstanding model of integrating law students into serious research projects, and of exposing faculty to experts in other disciplines and to practitioners. Here's what they have to say about themselves. [Jack Chin]
NYU CENTER FOR RESEARCH IN CRIME AND JUSTICE
The goal of the Center for Research in Crime and Justice is to stimulate and promote criminal justice research at New York University School of Law and to make the school a regional and national focal point for the study, discussion, and debate of criminal justice policy. Professor James B. Jacobs founded the center in 1993. In 1996, Jerome Skolnick joined him as co-director.
Jacobs and Skolnick are particularly interested in creating opportunities for students to engage with faculty in collaborative research projects. The Center’s research is currently focused on two areas:
A project to study the legal assault on organized crime, headed by Jacobs, seeks to document and analyze the dismantling of traditional Italian-American organized crime in the late 20th century. Many students have been and are involved as research assistants and sometimes as co-authors in this work. Jacobs is currently conducting a study of organized crime and organized labor, two 20th-century institutions that have profoundly affected one another over many decades. The resulting book will document and evaluate the government’s remarkable effort, since the early 1980s, to use the Racketeer Influenced and Corrupt Organizations (RICO) Act – one of the most ambitious government-sponsored, court-supervised efforts at organizational reform in U.S. History – to reform local, regional, and national unions under court-monitored trusteeships. Some of Jacobs’ recent student co-authors include: Lauryn Gouldin (’00), “Cosa Nostra: the Final Chapter?” Crime and Justice (1999); David Santore (’00), “The Liberation of Local 560,” Criminal Law Bulletin (March-April 2001); and Kristin Stohner (’03), “Ten Years of Court-Supervised Reform: A Chronicle & Assessment”, California Criminal Law Review (Spring 2004).
A project on police accountability and police integrity, led by Skolnick, has produced articles on racial profiling, the blue code of silence, and coercive interrogation. Skolnick’s articles “Guns, Drugs, and Profiling” was co-authored with law student Abigail Phillips Caplovitz (’01). He is currently working with graduate student Christine Scott-Hayward on an assessment of the organizational changes that have occurred in the New York City Police Department since September 11, 2001.
To enhance interest in criminal justice research, policy development, and community building, the Center hosts numerous events, most notably the monthly multidisciplinary Hoffinger Colloquium on Criminal Justice and a weekly criminal law group lunch series to inform faculty, visiting scholars, and selected students about issues and developments in criminal justice.
Throughout the year the Center sponsors small seminars and workshops, frequently to hear from American and foreign criminal justice scholars who are in New York City for a short time. On occasion, the Center provides a home and an opportunity for foreign scholars to spend a few weeks in NYC. Professor Dirk Van Zyl Smit, Dean of the University of Capetown (South Africa) Law School visited the Law School this year on this basis, as did University of Frankfurt criminologist Henner Hess during academic year 97-98. Boalt Hall’s Professor Franklin Zimring spent his spring 1996 sabbatical at the Center. In the spring of 1997, Professor Cyrille Fijnaut (University of Leuven, Belgium), the leading scholar of European policing, was in residence and teaching with Professor Skolnick.
Other key figures in the center include: Professor David Garland, a world class criminologist and social theorist who joined the NYU Law Faculty and Sociology Department in 1997. He is the founding editor of the new interdisciplinary journal Punishment & Society.
Major New Canadian Report on Preventing Miscarriages of Justice
The report was drafted under the authority of the Federal, Provincial and Territorial Justice Ministers, and the committe included senior prosecutors and police. "The Working Group’s 155-page report includes a chapter on each of the issues that have been identified, both in Canada and elsewhere, as the key factors that contribute to wrongful convictions:
- tunnel vision
- mistaken eyewitness identification and testimony
- false confessions
- in-custody informers
- DNA evidence
- forensic evidence and expert testimony
The report concludes that a wrongful conviction “is a failure of justice in the most fundamental sense” and says that public confidence in the administration of justice is fostered by demonstrating that participants in the criminal justice system are willing to take action to prevent future miscarriages of justice." Link here; news here. [Jack Chin].
New Information on Alleged Abuse of Prisoners in Iraq and Guantanamo
The ACSBlog reports: "New reports on prisoners in Iraq and Guantanamo shed new light on the conditions of detainees in the war on terror. Military documents obtained by the ACLU show that while the Army launched over 50 investigations into detainee abuse in Iraq, almost all were closed with soldiers facing no consequences. In some cases, 'investigations were abandoned because abusive conduct was characterized as acceptable practice or as 'standard operating procedure.' The Baltimore Sun notes that the findings 'further refute government claims last year that photographs from Abu Ghraib showed isolated pranks of a few low-ranking soldiers.' Furthermore, Human Rights Watch released a report today documenting systematic torture and abuse by Iraqi security forces in the interim government. The report also finds that 'with rare exception, the Iraqi authorities have failed to investigate and punish officials responsible for violations. International police advisers, primarily U.S. citizens funded through the United States government, have turned a blind eye to these rampant abuses.' The Washington Post quotes Hania Mufti, the Baghdad director of Human Rights Watch and chief author of the report, on why such conditions continue: 'Many of the same people who worked in Saddam's time are still doing those jobs today. So there is a continuity of personnel and of mind-set. I think the Iraqi people themselves thought there was going to be a different system. Every day, they are finding it is not so different.' In Guantanamo, meanwhile, more than 20 detainees attempted to hang or strangle themselves over an eight-day period in 2003 in an event an army spokesman described as 'a coordinated effort to disrupt camp operations.' Apparently, several prisoners began the attempt, which widened as word spread among the cellblocks. Human rights advocates are criticizing both the conditions leading up to such incidents and the military's delay in reporting." Talkleft has more here.
Click here to hear NPR's Alex Chadwick talk with Heather MacDonald, a fellow at the Manhattan Institute think tank, who defends the Bush administration's position on the interrogation and treatment of enemy combatants in detention. [Mark Godsey]
St. Mary's to Hold Symposium on Terrorism and Law in Washington D.C. this Friday
WHEN: Friday, Jan. 28, 2005
WHERE: at the Crystal Gateway Marriott Hotel, 1700 Jefferson Davis Hwy., Arlington, Va.
WHO: Justice Paul Green, of the Supreme Court of Texas, will be the keynote speaker. Jeff Addicott, assistant professor of law and director of the Center for Terrorism Law at St. Mary’s University School of Law, will speak on “Contractors on the Battlefield”; Amos Guiora, visiting professor of law, Case Western Reserve University School of Law, will speak on “Targeted Killing as an Example of Active Self-defense”; Michael Scharf, professor of law and director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law, will discuss “Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects”; David DiCenso, cyber-terrorism consultant to the Center for Terrorism Law and liaison to the Center for Infrastructure Assurance and Security at the University of Texas at San Antonio, will talk about “Civilian Information Warriors–National Assets or War Criminals”; Vickie Sutton, director of the Center for Biodefense, Law and Public Policy and professor of law at Texas Tech University, will talk on “Federalism and Biodefense”; Bob Summers, professor of law, director of LL.M. Program, and associate director of the Center for Terrorism Law at St. Mary’s University School of Law, will discuss “Intelligence Information Sharing and the War on Terror.”
Press release here. [Mark Godsey]
Pakastani Man Who Videotaped Landmark Skyscrapers in the U.S. Sentenced to Six Months in Prison
Kamran Akhtar, 36, from Pakistan, was arrested in July after the police found him videotaping the FBI headquarters in Charlotte. When the police reviewed the tape in his camera, they found it full of other shots of skyscrapers and other American landmarks across the country. He has been jailed since July, but after the government was unable to prove that he had any connection to terrorists, he was charged with five immigration offenses, including possessing false identification cards. This week he was sentenced to six months impisonment on those charges, in effect time served, and will be deported shortly. Story here. [Mark Godsey]