January 26, 2005
Criminal Investigation of GE's Military Helicopter Production
AP reports on a worker at a Kentucky GE plant's testimony before a federal grand jury, alleging that helicopter parts were being shipped in spite of being below specifications. The Department of Defense Criminal Invetigation Service confirmed that an investigation had been ongoing at the plant since 2000; a GE spokesman said the company was cooperating and conducting its own internal investigation. The allegations are all the more disturbing given the heavy use of helicopters in Iraq and the ensuing casualties. [Jack Chin]
Kids Arrested for Stick Figure Drawing
The 10 year olds were put in handcuffs and charged with felonies for drawing classmates being hung and stabbed. Usually threats have to have some level of reality to be actionable as threats, yes? [Jack Chin].
Joanna Grossman and Virginia Fornication Decision
Scrushy Trial Begins: First Test for Sarbanes-Oxley Act
Richard Scrushy's trial on corporate fraud charges opened Tuesday with a prosecutor telling jurors the fired HealthSouth CEO was the driving force behind a conspiracy to overstate earnings in the rehabilitation giant by about $2.7 billion. With underlings generating bogus financial statements to make it appear HealthSouth Corp. was meeting Wall Street forecasts from 1996 through 2002, a prosecutor argued, Scrushy sold about $150 million worth of his own HealthSouth stock and spent more than $200 million on a lavish lifestyle. All the while, Scrushy was getting private reports on the company's true financial condition, but he never told investors what was going on, U.S. Attorney Alice Martin told jurors in opening statements. "They pumped up the profits, and he hid it from the public," Martin said. She described Scrushy as "a very hands-on leader" who personally selected top aides and tried to sway their statements to federal agents once an investigation began. "The evidence will show that Richard Scrushy as chief executive officer gave phony numbers to the public," Martin said. Richard Scrushy's trial on corporate fraud charges opened Tuesday with a prosecutor telling jurors the fired HealthSouth CEO was the driving force behind a conspiracy to overstate earnings in the rehabilitation giant by about $2.7 billion. With underlings generating bogus financial statements to make it appear HealthSouth Corp. was meeting Wall Street forecasts from 1996 through 2002, a prosecutor argued, Scrushy sold about $150 million worth of his own HealthSouth stock and spent more than $200 million on a lavish lifestyle.
The case is significant because it marks the first test of the 2002 Sarbanes-Oxley Act, which requires top executives of public corporations to vouch for the financial reports of their companies. The former CEO challenged the new corporate fraud law in November last year, but U.S. District Judge Karon O. Bowdre rejected the challenge. Bowdre had disagreed with Scrushy's argument that the act is unconstitutionally vague and should not be part of the indictment accusing him of a massive fraud at HealthSouth.
Story . . . [Mark Godsey]
January 25, 2005
New Case: Public Access to Plea and Sentencing Proceedings
The Second Circuit held yesterday in U.S. v. Alcantara that before a district court may close a plea or sentencing proceeding to the public, it must make factual findings on the record supporting the need for exclusion, and provide notice to the public. The court also noted that holding a plea proceeding in a judge's robing room violates Federal Rule of Criminal Procedure 11, and that conducting a sentencing proceeding in a robing room violates 18 U.S.C. § 3553(c). The court summarized its holding as follows:
The public and press have a qualified First Amendment right of access to plea and sentencing proceedings. United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1998); In re Washington Post Co., 807 F.2d 383, 389 (4th Cir.1986). Therefore, "[t]he power to close a courtroom where proceedings are being conducted during the course of a criminal prosecution ... is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent reasons." United States v. Cojab, 996 F.2d 1404, 1405 (2d Cir.1993). Before excluding the public from such proceedings, district courts must make findings on the record demonstrating the need for the exclusion. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986); Haller, 837 F.2d at 87. In addition, two decades ago, we established procedures for providing notice to the public that must be followed before closing a proceeding to which a First Amendment right of access attaches. To ensure that members of the public have notice that a motion to close the courtroom has been made, and have an opportunity to challenge the closure, a closure motion--whether made by a party or by the court sua sponte-- must be docketed in the public docket files maintained in the court clerk's office. See In re The Herald Co., 734 F.2d 93, 102-03 (2d Cir.1984).
Here, the District Court apparently decided sua sponte to conduct Goiry's sentencing and Munoz's plea proceeding in the robing room, and did not provide notice to the public of its intention to close the proceedings as is required by Herald. In neither case did the court make findings on the record demonstrating the need for closure. There is no indication in the record of either case that there were circumstances present that would warrant closed proceedings. The public and press have a right to trust that the rules and procedures we have established will be followed. Therefore, in the exercise of our supervisory powers, we remand both cases to the District Court for further proceedings to be held in the public courtroom.
W e also conclude that conducting Munoz's plea proceeding in the robing room violated Federal Rule of Criminal Procedure 11, which requires that such proceedings be conducted in "open court," and that conducting Goiry's sentencing in the robing room violated 18 U.S.C. § 3553(c), which requires that the District Court state in "open court" its reasons for imposing the sentence. Although we need not reach those issues because we are remanding both cases under our supervisory powers, we believe Rule 11 and § 3553(c)'s were clearly violated and thus address the issues to provide guidance to district courts. [Mark Godsey]
The Problem of Actual Innocence and Parole Boards
I recently came across a new paper by Michael Naughton of University of Bristol titled Why the Failure of the Prison Service and the Parole Board to Acknowledge Wrongful Imprisonment is Untenable. He argues an important point of relevance to the wrongly convicted. Namely, that parole boards almost universally refuse to release inmates on parole who refuse to accept responsibility for the crimes of which they have been convicted. Acceptance of responsibility is undoubtedly an important part of the rehabilitative process, and should be considered heavily. But this practice ignores recent evidence of the number of wrongfully convicted in this country, who as a result of these parole board policies, often end up serving longer sentences than their guilty counterparts. Abstract and article here.
This phenomenon has caused me a great deal of concern in my position as the Director of an Innocence Project. I represent a group of inmates at the current time for whom we have developed a reasonable amount of evidence of innocence, and whom I personally believe are innocent. However, given that judges often expect DNA-type ironclad proof of innocence for exonerations, our evidence in some of these cases is arguably insufficient to clear them in court under the exceedingly high standards for exoneration in my state (some of my parole clients could meet the standard, but have chosen to seek release on parole first and then fight to clear their names in court later). Thus, our first step is to obtain parole for these inmates if they are eligible. But the fact that these inmates adamantly refuse to admit guilt means that they might spend more time in prison than other inmates for whom absolutely no evidence of innocence exists.
The parole board in my state, however, has on some occasions, unlike some other parole boards, shown a willingness to "think the unthinkable," as Naughton calls it, and recognize that sometimes wrongful convictions occur. If you are in such a state, the next hurdle is that parole board hearings as currently set up in many states are not conducive to proving innocence. Typically, inmates in many states get just a few minutes to put on his or her case. After going through their excellent record in prison, etc., 2-3 minutes is simply not enough time to develop a convincing case of possible innocence in order to provide a plausible explanation as to why the inmate has not admitted guilt. Then, the prosecution and victim's family often has the chance to present their case for an extended period of time, typically using hearsay and other evidence that cannot be refuted (the inmate often does not have a rebuttal argument in many states). In many states, this procedure does not come close to resembling an adversarial proceeding where evidence of innocence can be thoroughly reviewed and considered.
Naughton's argument needs to be taken seriously. We need to come up with constructive ways to balance the competing interests so that evidence of innocence can be presented to parole boards in a fair way, and without having it automatically backfire and cause the inmate in question to serve more time than his clearly guilty counterparts. [Mark Godsey]
FBI Seeks to Limit Public Access of Records
Story here. [Jack Chin]
In Ireland, a person convicted of a car bombing won an appellate reversal when the court concluded that police records had been falsified. Wilton Dedge is seeking $4.9 million from the Florida legislature to compensate him for his 22 year wrongful incarceration; Florida has no compensation statute. In Arkansas, a bill proposes to add to the cost of filing a civil suit, with the revenue going to crime labs. Here's an interview with a Kentucky man wrongly accused of robbery and murder. Larry Marshall is moving from Northwestern to Stanford. Robery Coney beat a 1962 wrongful conviction, but was reincarcerated for a 1959 robbery; now he's gotten medical release. Here's a story about an exoneration in Israel In the Albany Times Union, Scott Christianson, author of Innocent: Inside Wrongful Conviction Cases (2004), urges the New York legislature to fix the problem of trial error before reinstating the death penalty. [Jack Chin]
Supreme Court Asks Lower Courts To Review Hundreds of Sentences in Light of Booker
January 24, 2005
Supreme Court Issues New 4th Amendment Decision Today
Today, the Supreme Court decided Illinois v. Caballes, holding that a police officer does not need reasonable suspicion to have a drug-detection dog circle a vehicle properly stopped for a routine traffic stop. The decision was 6-2 with Ginsburg and Souter dissenting. In this case, when the defendant was stopped for speeding, officers paraded the canine around his car, and the canine alerted to the presence of narcotics. At that point, the officers' suspicion went from zero to probable cause and they executed a search, found drugs and then arrested the defendant. Justice Stevens wrote in his opinion for the Court:
In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement. This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity--in that case, intimate details in a home, such as 'at what hour each night the lady of the house takes her daily sauna and bath.' Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Read Orin Kerr's analysis of the case at The Volokh Conspiracy here. [Mark Godsey]
Visitors Wanted at Notre Dame
"We may need visitors for the coming academic year (2005-06) in several basic curricular areas -- Business Associations, Constitutional Law, Contracts, Criminal Law, Property, and Torts. Although our needs are not yet settled, I would welcome expressions of interest (along with a CV), with special preference for those who could visit for the entire year.
Walter F. Pratt, Jr.
Associate Dean and Professor of Law
Notre Dame Law School
P. O. Box R
Notre Dame, IN 46556-0780
Visitors Wanted at Catholic
The Columbus School of Law of the Catholic University of America is currently considering applicants for full-year and one-semester visiting faculty positions for the 2004 - 05 academic year. Subject areas of particular interest may include civil procedure, criminal law/procedure, property, contracts, trusts & estates, and federal tax. Law school teaching experience is preferred. The Catholic University of America was founded in the name of the Catholic Church as a national university and center of research and scholarship. Regardless of an individual's personal religious affiliation, all faculty are expected to support the University's mission. Persons interested in being considered should submit a resume and letter describing their qualifications for an interest in the position as soon as possible to:
Dean William Fox
The Catholic University of America
The Columbus School of Law
3600 John McCormack Road, NE
Washington, D.C. 20064
FAX: (202) 319-5473
Mislabled Houston Crime Lab Evidence Includes 28 Death Cases
KPRC in Houston reports: "Dozens of death penalty cases are included in boxes of evidence that were mislabeled and improperly stored in the Houston Police Department's Crime Lab, Local 2 reported in an exclusive story Thursday.
Judge Strikes Down Federal Statute Criminalizing Obscenity
New Article Spotlight
Robert F. Cochran Jr. of Pepperdine has posted How Do You Plead, Guilty Or Not Guilty?: Does the Plea Inquiry Violate the Defendant's Right to Silence on SSRN. Here's the abstract:
Early in every criminal case, the trial judge or magistrate asks the defendant a question which probably violates the defendant's right to silence: "How do you plead, guilty or not guilty?" The defendant confronts the "cruel trilemma," often condemned by the Supreme Court, of lying, confession, or silence in a situation where silence implies guilt. The plea inquiry raises all of the problems that have led the Court to prohibit questioning in other contexts. It interferes with the defendant's dignity, autonomy, and privacy. It is inconsistent with the adversary system, implying that the defendant has a responsibility to establish his innocence. The plea inquiry is a remnant of a day when England had many elements of an inquisitorial system.
Of course, the common practice is for defense attorneys to instruct defendants to plead "not guilty" at the plea inquiry, irrespective of their guilt. This practice has deep roots in English history and it probably has enabled courts to avoid dealing with the constitutional problems of the plea inquiry. But the "remedy" to the plea inquiry's constitutional problems has its own problems. The false "not guilty" plea unnecessarily alienates the defendant from the victim and the public, reinforces any inclination the defendant might have had to lie, reinforces a tendency on the part of lawyers to assist clients in lying, and adds to the cynicism which lawyers, clients, and the public feel toward the criminal justice system. This practice merely steers the defendant toward one of the trilemma's "cruel" options-lying. The constitutional, social, and moral problems of the plea inquiry might be worth it if it served a significant purpose, but it does not. All the plea inquiry does is signal whether the defendant will take his trial or not. Rather than pose the current plea inquiry, courts could ask the defendant whether he will plead "guilty" or take his trial or, in the alternative, courts could merely assume that the defendant will take his trial, in the absence of a defendant motion to the contrary.
To obtain the paper, click here. [Mark Godsey]
New Case: Sixth Circuit Says Credible Claim of Innocence Overcomes One-Year Time Limitation to Habeas Petition
The Sixth Circuit held last week in Souter v. Jones (and here) that a "credible" claim of actual innocence can overcome a default on the one-year limitation period to file a habeas petition under the AEDPA. As the Sixth Circuit noted, the Supreme Court has not yet directly ruled on whether a claim of actual innocence can overcome this specific prodecural bar. [Mark Godsey]
Mom Charged for Urging Killer Kids to Flee
In Australia, a mother was charged as an accessory for urging her children, who had killed a security guard during a robbery, to flee. [Jack Chin]
January 23, 2005
Swedish Pastor Gets 30 Days for Criticizing Gays
AP Reports: "Aake Green, 63, was sentenced to a month in prison in June 2004 under the country's hate crimes law after he cited Biblical scripture to condemn homosexuality during a church service, calling it "a deep cancer tumor on all of society" and warning that Sweden risked a natural disaster because of its tolerance for gays and lesbians.
Green, who also said AIDS has its roots in homosexuality, was convicted in a district court after the prosecutor, Kjell Yngvesson, argued that Green "expressed disdain for the homosexuals as a group" and compared his sermon to a racist shouting a Nazi salute." Story here. [Jack Chin]
Christian Group Charged With Hate Crime: UPDATE
Members of a Christian group called Repent America have been charged with hate crimes for protesting at a gay and lesbian rally in Philadelphia. The prosecutor claims that the group was attempting to incite a riot. The group's defense attorney says his clients' conduct is protected by the First Amendment, and added, "We believe that this is the first case in the nation where preaching the Bible has formed the evidentiary basis for a hate crime." More . . .
UPDATE: A state judge reviewed footage of the incident and found that the defendants did nothing illegal during their protest. The judge therefore revoked an order that had prohibited the defendants from coming within 100 feet of a gay rights event. The criminal charges against the defendants are still pending, apparently before a different judge. Footage of the event is available at the Crime & Federalism blog.
This link discusses a case where teens have been charged with a hate crime for, interestingly enough, beating up a Satan worshiper. [Mark Godsey]