Saturday, October 8, 2005
Professor Bruce Smith to present "Miranda's Paradoxical Pre-History" at Yale Law School Legal History Forum
Illinois Professor Bruce Smith will present the lecture, "Miranda's Paradoxical Pre-History," at the Yale Law School Legal History Forum Tuesday, October 18 from 4:30-6 p.m. Professor Smith's lecture will center on English pre-trial interrogations in the 18th and 19th centuries.
Defence lawyers in Scotland did not always have access to prosecution witnesses' criminal records and pending charges, until the Privy Council applied to EU human rights law principles to conclude that disclosure was required. Some good discussion in the opinion about dock identification and identification parades. At one point, the opinion states that "The Crown proceeded to precognosce the witnesses"; what the heck does that mean. Story here; opinion of the Privy Council here. [Jack Chin]
Miami Herald Columnist Leonard Pitts (archive here) describes how, notwithstanding the description of a 5'8" suspect, his 6'3" kid was arrested and held for a couple of weeks; "A few weeks later, the prosecutor declined to press charges, finally admitting there was no evidence." Column here. [Jack Chin]
From The Journal News: "Tony Castro, the Democratic candidate for Westchester County district attorney, struggled to pass the bar exam in both Massachusetts and New York, taking and failing the test multiple times in each state before he finally passed.
Castro, who has pledged to restore "honesty and integrity" to the county prosecutor's office, also was forced from his job as an assistant district attorney in the Bronx for more than a year in the mid-1980s because he could not pass the exam — a fact that is not included in the resume he posted on his campaign Web site.
In a phone interview yesterday, Castro said his struggles to pass the bar exam "had nothing to do" with his qualifications to serve as district attorney. He also insisted the information on his campaign Web site is accurate." Story . . . [Mark Godsey]
Friday, October 7, 2005
Texas A&M-Corpus Christi professor John Graham took the fourteen students in his forensic science class for a stinky ride. Four weeks ago, they built two dummy cadavers and stuffed them with raw beef and pork products.
From the Caller.com: "'It's as close as we can get to the real thing," Graham said. "It's as real as we can make it under the circumstances." The class divided into two teams, each creating their own dummy and planting it in a secluded coastal area on campus. Students simulated a kidnapping, wrapped the fake cadavers in carpet and tied their hands with cords so they could gather trace evidence later.
During [this past] Tuesday's class, the teams trekked out to the simulated crime scenes and began the investigation process. Each team member was careful to approach the scene in the proper way to avoid disturbing any evidence. 'We have to work from the outside in,' said biomedical student Vickie Fierova. For the rest of the class, team members took turns stepping through the crime scene tape, carefully collecting trace evidence and documenting every minute detail.
Graham said this type of project is crucial for students who want to pursue careers in forensic sciences. 'It gives them the opportunity to acclimate themselves and apply the other scientific standards they've learned in the other science classes,' Graham said. [Mark Godsey]
"Professor Frase is recognized for his scholarship in the area of criminal justice. He teaches criminal law, criminal procedure, and the federal defense clinic. His seminars include comparative criminal procedure and sentencing guidelines. He was the Julius E. Davis Professor of Law for 1988-89 and became the Benjamin N. Berger Professor of Criminal Law in 1991.
Professor Frase graduated Phi Beta Kappa from Haverford College. He received his J.D. degree from the University of Chicago, where he was Comment Editor of the University of Chicago Law Review. He clerked for the Honorable Luther M. Swygert, Chief Judge of the United States Court of Appeals for the Seventh Circuit, and was an associate attorney for the law firm of Sidley & Austin in Chicago from 1972 to 1974. Professor Frase then became a research associate and Arnold Shure Fellow of the Center for Studies of Criminal Justice at the University of Chicago Law School. In 1977 he joined the faculty of the University of Minnesota Law School. He has been a Visiting Professor at the Christian Albrechts Universität in Kiel, Germany and at the Université Jean Moulin in Lyon, France. Professor Frase is a member of the American Law Institute, the International Association of Penal Law, the American Society of Criminology, and the American, Minnesota, and Hennepin County Bar Associations. He is a frequent contributor to radio, television, and newspaper reports on criminal justice issues." Here are links to some of Professor Frase's articles. For a full list of his publications, click here.
Vanderbilt CrimProf Nancy King Featured on NPR Morning Edition Story about Changes in Jury Selection Procedures
An interview with Vandy CrimProf Nancy King, a jury selection expert, was featured in an NPR story focusing on racial imbalance on a Boston jury, in which a judge ordered changes in jury procedures that could increase the pool of minority jurors by sending a second round of summons to specific ZIP code areas with a higher minority population. Federal prosecutors have appealed, claiming the judge doesn't have the authority to change jury rules. Prosecutors add that sending a second round of summons to specific ZIP codes violates the required random selection of jurors.
"If the order was targeting districts that had a higher proportion of African-American citizens, for example, that would be unconstitutional, but if you're sampling from within certain ZIP codes randomly, it seems to me you have a case for saying that still complies with the statute," King told report Martha Bebinger.
Listen to the story here: http://www.npr.org/templates/story/story.php?storyId=4933569
Thursday, October 6, 2005
William & Mary's CrimProf Paul Marcus comments on internet crime stings designed to catch sexual predators who prey on children using internet chat rooms. The Spotsylvania County, VA Vice and Narcotics Unit, like 44 other task forces throughout the country, have trained officers to pose as teenagers online, talking in "teen lingo" to spot pedaphiles who engage in sexual conversations with and, often, arrange to meet, their teenage victims for sex.
From Fredericksburg.com: "Marcus points out that these are expensive undercover operations led by highly trained officers and prosecutors. He said little data exist to prove how effective the stings are in reducing crime. 'Nobody wants the government creating a class of criminals that don't exist,' said Marcus, although he acknowledges that 'nobody wants a bunch of child molesters out there.'"
Richmond criminal defense attorney David P. Baugh takes a similar view. He acknowledges that police have the right to do undercover work online, but he's not a big fan of the practice. 'It makes me uncomfortable,' he said. 'It sounds like Big Brother.' "Smith [the Spotsylvania county sheriff] said people are free to critique the practice, but he said it'll continue as long as he's Spotsylvania's sheriff. He said he'd rather stop a crime through "Big Brother" than work a murder case involving a young girl." Story... [Mark Godsey]
From MSNBC.com: "The number of criminal cases opened by the FBI has dropped by nearly half since 2000, a reflection of the bureau’s shift toward stopping terrorist attacks, the Justice Department’s inspector general said Monday. The decline was steepest in drug investigations and extended to organized crime, bank robberies, civil rights, health care fraud, corporate fraud and public corruption, Inspector General Glenn A. Fine said...
Among the FBI’s traditional criminal investigations, only gang cases increased...The report looked at cases opened and the deployment of agents in the 2000 government spending year — the last full year before the attacks — and in 2004. The FBI opened 62,782 criminal investigations in 2000 and 34,451 last year, a drop of 45 percent, Fine said. Drug cases declined by 70 percent, he said. There were 2,200 fewer field agents investigating criminal matters in 2004, he said.
State and local law enforcement officials said they have tried to fill the gaps, but have been unable to take up the slack in complex financial fraud cases that the FBI handled before Sept. 11." Story... [Mark Godsey]
An exerpt from NYTimes.com's column Serving Life with No Chance of Redemption including New York Law School's CrimProf Robert Blecker, a retributivist advocate of the death penalty: "Minutes after the United States Supreme Court threw out the juvenile death penalty in March, word reached death row here, setting off a pandemonium of banging, yelling and whoops of joy among many of the 28 men whose lives were spared by the decision. But the news devastated Randy Arroyo, who had faced execution for helping kidnap and kill an Air Force officer while stealing his car for parts.
Mr. Arroyo realized he had just become a lifer, and that was the last thing he wanted. Lifers, he said, exist in a world without hope. "I wish I still had that death sentence," he said. "I believe my chances have gone down the drain. No one will ever look at my case."
Mr. Arroyo has a point. People on death row are provided with free lawyers to pursue their cases in federal court long after their convictions have been affirmed; lifers are not. The pro bono lawyers who work so aggressively to exonerate or spare the lives of death row inmates are not interested in the cases of people merely serving life terms. And appeals courts scrutinize death penalty cases much more closely than others. Mr. Arroyo will become eligible for parole in 2037, when he is 57. But he doubts he will ever get out. "This is hopeless," he said.
Scores of lifers, in interviews at 10 prisons in six states, echoed Mr. Arroyo's despondency. They have, they said, nothing to look forward to and no way to redeem themselves. More than one in four lifers will never even see a parole board. The boards that the remaining lifers encounter have often been refashioned to include representatives of crime victims and elected officials not receptive to pleas for lenience.
And the nation's governors, concerned about the possibility of repeated offenses by paroled criminals and the public outcry that often follows, have all but stopped commuting life sentences. In at least 22 states, lifers have virtually no way out. Fourteen states reported that they released fewer than 10 in 2001, the latest year for which national data is available, and the other eight states said fewer than two dozen each.
The number of lifers thus continues to swell in prisons across the nation, even as the number of new life sentences has dropped in recent years along with the crime rate. According to a New York Times survey, the number of lifers has almost doubled in the last decade, to 132,000. Historical data on juvenile offenders is incomplete. But among the 18 states that can provide data from 1993, the juvenile lifer population rose 74 percent in the next decade.
Prosecutors and representatives of crime victims applaud the trend. The prisoners, they say, are paying the minimum fit punishment for their terrible crimes. But even supporters of the death penalty wonder about this state of affairs.
"Life without parole is a very strange sentence when you think about it," said Robert Blecker, a professor at New York Law School. "The punishment seems either too much or too little. If a sadistic or extraordinarily cold, callous killer deserves to die, then why not kill him? But if we are going to keep the killer alive when we could otherwise execute him, why strip him of all hope?"
Burl Cain, the warden of the Louisiana State Penitentiary in Angola, which houses thousands of lifers, said older prisoners who have served many years should be able to make their cases to a parole or pardon board that has an open mind. Because all life sentences in Louisiana are without the possibility of parole, only a governor's pardon can bring about a release. The prospect of a meaningful hearing would, Mr. Cain said, provide lifers with a taste of hope.
"Prison should be a place for predators and not dying old men," Mr. Cain said. "Some people should die in prison, but everyone should get a hearing." Full story... [Mark Godsey]
”Special Tactics for a Secret War”
Friday, Oct. 28, 6:30 p.m.
William Mitchell College of Law, St. Paul, Minn.
Detaining terrorism suspects at secret locations, interrogating terrorism suspects more aggressively than criminal defendants, and rendering terrorism suspects to foreign countries for secret detention and interrogation—the legality and wisdom of these three practices will be explored by keynote speaker John A. Rizzo, acting general counsel of the CIA, and panelists Douglas Jehl, The New York Times, Professor Neal K. Katyal, Georgetown University Law Center, and Professor John Norton Moore, University of Virginia School of Law. William Mitchell Associate Professor A. John Radsan, former assistant general counsel at the CIA, to moderate.
Read more and register online:
From the Pittsburgh Post-Gazette: "The issues of juvenile crime and the courts will be addressed by Rosemary Sarri, professor and former researcher at the University of Michigan, in the Norman J. and Alice Chapman Rubash Distinguished Lecture in Law and Social Work [today, October 6, 2005 from noon to 2 pm in the Teplitz Moot Court Room in the Barco Law Building] at the University of Pittsburgh...
Sarri will talk on "Prosecuting and Treating Juveniles as Adults in the United States." In the 1970s, she participated in research on juvenile justice. Her work spurred a movement away from incarcerating juveniles in adult jails. She believes the trend is now swinging in the opposite direction." A panel discussion will follow featuring, among others, former Pittsburgh police Cmdr. Gwen Elliott and CrimProf Barry McCarthy of Pitt Law, an expert in juvenile law, criminal law and criminal procedure both in the U.S. and abroad. [Mark Godsey]
Wednesday, October 5, 2005
From SanDiego.com: Austin, TX (AP)-- "A convicted killer whose case helped spark national debate over whether mentally impaired inmates should be executed had his death sentence overturned for the third time Wednesday. A divided Texas Court of Criminal Appeals sent Johnny Paul Penry's case back to trial for the punishment phase. The court ruled that jurors in Penry's most recent trial may not have properly considered his claims of mental impairment.
Penry has won two reversals from the U.S. Supreme Court that changed the way judges instruct juries in capital murder cases. The Supreme Court overturned his conviction in 1989 and, in 2001, overturned his sentence but left the conviction intact. Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation.
For the July 2002 trial that was considered by the Texas appeals court, jurors heard detailed testimony about his intellect. Defense experts noted his IQ consistently tested below 70, the retardation standard, and Penry remained very childlike in his abilities. Prosecutors say his lifelong anti-social behavior prevented him from being able to properly take an IQ test and that he has a life-or-death reason to act unintelligent. The jury determined Penry was not retarded and sentenced him to die. More... [Mark Godsey]
This past Monday, October 3, 2005, marked the ten year anniversary of the O.J. Simpson "not guilty" verdict. Cal Berkeley CrimProf David Sklansky and Temple CrimProf & Associate Dean JoAnne Epps offer insight into the O.J. verdict and its impact, ten years later, in the following article.
From BlackAmericaWeb.com: "As an estimated 150 million people watched the live broadcast of the courtroom finale on October 3, 1995, television news cameras captured the vastly-different reactions of black and white Americans, and the images spoke volumes about race relations as the 20th century drew to a close.
JoAnn A. Epps, a one-time prosecutor for the city of Los Angeles and the U.S. Attorney’s Office in Philadelphia, told BlackAmericaWeb.com that she believes the Simpson trial presented a defining moment for blacks and the legal system. "I think the O.J. trial did empower African-Americans across this country to believe that they could get a fair day in court, although for many that realization was tempered by the worry that their day in court would be costly," said Epps, who is black. "But the trial gave hope for many that they could have their case and their voice heard."
Some would argue that the trial and the infamous use of the "race card" by Simpson’s defense team were nothing more than a public spectacle, while others believe it played an important role in getting people to have frank discussions about race. "The race card spawned a tremendous amount of conversation on race," said Epps, a professor and associate dean at Temple University’s School of Law. "Not all of it was easy, but it was good that we were reminded of this thorny issue."...
"This trial really revealed the extent to which black Americans and white Americans saw things through different lenses,” David Sklansky, a professor at the University of California at Berkeley’s School of Law, told BlackAmericaWeb.com. "There was just an astonished lack of comprehension by many white Americans, and there were things that seemed plausible to black Americans that didn’t seem plausible to whites -- like how blacks were much quicker, in general, to believe that police could have planted evidence."
The person many believed to have planted evidence was Los Angeles homicide detective Mark Fuhrman, who discovered a bloody glove near the murder scene. While on the witness stand, Fuhrman also denied ever having used a racial slur, although it was eventually discovered that he spewed the N-word in a taped interview 10 years prior to Simpson’s trial.
'That was an important lesson from the trial,' said Sklansky, who was a criminal law professor at the University of California at Los Angeles at the time of the trial. 'It was a lesson that, despite all of the progress that has been made, we still live in a universe in which black and white lives can be very different. The fact was that police officers that didn’t utter racial epithets in court might very well use them outside of the courtroom.'" More insight from Epps and Sklansky here... [Mark Godsey]
The trial of Saddam Hussein, scheduled to begin October 19, is expected to be among the most important trials in legal history. To help journalists, academics, and the public keep abreast of and understand developments related to the trial, the Frederick K. Cox International Law Center at Case Western Reserve University School of Law has launched the Saddam Hussein trial blog and interactive website at: http://www.law.case.edu/saddamtrial.
The new website features the key documents related to the Iraqi Special Tribunal (IST), answers to frequently asked questions, and expert debate and public commentary on the major issues and developments related to the trials of Saddam and other former Iraqi leaders.
The site is the first to publicly post an English translation of the newly revised IST Statute and Rules of Procedure, which were promulgated on August 11, 2005, by the Iraqi Provisional Legislature. It also includes English translations of such hard-to-find documents as the Iraqi Penal Code and the Iraqi Code of Criminal Procedure, which will be relevant to the Saddam Trial.
“This new, interactive website is an extension of the valuable work the faculty and students at our law school have been doing to train and advise the judges who will preside over the Saddam Hussein trial,” said Gerald Korngold, dean and McCurdy Professor of Law. “We are pleased that our Cox international law center has been able to make such a significant contribution to these historic judicial proceedings.”
Contributors to the site include a panel of 12 renowned legal experts who will provide commentary on the critical issues and breaking news related to the trial. Issues debated on the website include: Does Saddam Hussein have a right to represent himself; should his trial be televised gavel to gavel; will the trial be fair; is the IST legitimate; should the IST impose the death penalty; and can Saddam Hussein be convicted of genocide for the crimes alleged?
Expert contributors include:
- Michael Scharf, professor at Case Western Reserve University School of Law, who has led training sessions for the IST judges and provides ongoing research assistance to the tribunal as head of its academic consortium
- Cherif Bassiouni, Distinguished Research Professor of Law at DePaul University College of Law and president of the International Human Rights Law Institute, who helped draft the IST Statute
- Laura Dickinson, associate professor at University of Connecticut School of Law, who served as senior advisor to the deputy assistant secretary of state for human rights in the Clinton administration
- Linda Malone, Marshall-Wythe Foundation Professor of Law and director of the Human Rights and National Security Law Program at the College of William and Mary School of Law, who serves as a member of the IST’s academic consortium
- Col. (Ret.) Michael Newton of Vanderbilt School of Law, who helped draft the IST Rules of Procedure
- Christopher Rassi, deputy director of the Case School of Law War Crimes Research Office, who has served as a legal assistant to the judges of the International Criminal Tribunal for Rwanda
- Leila N. Sadat, the Henry H. Oberschelp Professor of Law at Washington University School of Law and author of the award-winning book The International Criminal Court and the Transformation of International Law
- William Schabas, director of the Irish Centre for Human Rights and one of the world’s leading authorities on human rights and war crimes trials
- David Scheffer, former U.S. Ambassador at Large for War Crimes Issues, who has worked for the past 10 years to bring Saddam Hussein to justice
- Ruth Wedgwood, the Edward B. Burling Professor of International Law and Diplomacy and director of the International Law and Organization Program at The Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, who has served as the U.S. Expert Member on the U.N. Human Rights Committee
- Paul Williams, professor of law and international relations at American University’s Washington College of Law and executive director of the Public International Law and Policy Group, who helped draft Iraq’s new constitution
In addition Scharf, who along with Williams was nominated for the 2005 Nobel Peace Prize for the work he has done assisting in the trials of major war criminals, is available to provide commentary for reporting on the Saddam Hussein trial. He can be reached at Michael.Scharf@case.edu; phone: (216) 368-3299; cell: (216) 534-7796. [Mark Godsey]
Tuesday, October 4, 2005
In the aftermath of 9/11, some Americans favored the use of unconventional methods to obtain information from suspected terrorists to prevent another major attack. But revelations emerging from U.S. detention centers in Guantanamo Bay, Iraq and Afghanistan have transformed the use of torture into one of the most controversial issues of our time. Are such practices moral, legal, effective and sound policy? If not, how might they be challenged?
These will be among the questions addressed in "Torture and the War on Terror," a conference at the Case Western Reserve University School of Law. The conference will take place Friday, October 7, from 8:30 a.m. - 5:30 p.m. at the law school, 11075 East Blvd. in Cleveland. It is free and open to the public, and CLE credit is available. The proceedings will be Webcast live at http://www.law.case.edu/centers/cox/content.asp?content_id=77.
The conference will conclude with the adoption of "The Cleveland Principles," a document containing 10 fundamental principles relating to interrogation and detention standards, signed by many of the conference speakers and other experts from around the world.
"In today’s climate, it is essential to find the proper balance between preserving security and upholding the rights of terrorism suspects," said Gerald Korngold, dean and McCurdy Professor of Law. "Helping society to find that balance is among the most important services the legal community can provide."
The conference features panels on "What’s Wrong with Torture," "Outsourcing Torture and Extraordinary Rendition," "The Role of International Law and Organizations in Suppressing Torture," "Adjudicating Torture in American Courts" and a debate on the White House "torture memos." Among the panelists will be:
- Professor Jose Alvarez of Columbia University School of Law, president elect of the American Society of International Law
- Admiral (ret.) John Hutson, former Judge Advocate General of the U.S. Navy, and plaintiffs’ attorney in the lawsuit against Donald Rumsfeld
- Justice Richard Goldstone, former chief prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Judge of the South Africa Constitutional Court
- Professor William Schabas, member of the International Truth Commission for Sierra Leone
- Andre Surena, former assistant legal adviser for human rights at the U.S. Department of State, who recently represented the United States in the case involving the Guantanamo Bay detainees before the Inter-American Commission for Human Rights
- Andrew McCarthy, the lead prosecutor in the World Trade Center bombing case.
- Elisa Massimino, Washington director and chief advocacy strategist for Human Rights First
- DePaul University Law Professor Cherif Bassiouni, who was recently dismissed from his position as U.N. Rapporteur for Afghanistan following allegations of torture by U.S. forces
"The United States should have standards for interrogating enemy prisoners that are effective, lawful, and humane," says Case School of Law Professor Michael Scharf, conference co-chair and a nominee for the 2005 Nobel Peace Prize. "The Cleveland Principles are designed to supplement the legislation proposed by Senator John McCain, which is scheduled to be debated by Congress shortly after our conference," adds co-chair Amos Guiora, who directs Case’s Institute for Global Security Law and Policy (IGSLP).
The conference is sponsored by the Frederick K. Cox International Law Center and co-sponsored by the IGSLP. It has been designated as a centennial regional meeting of the American Society of International Law, a regional conference of the International Law Association (American Branch) and the annual meeting of the International Association of Penal Law (American National Section).
CrimProf Michael Perlin (New York Law School) has been paid tribute in the form of the San Diego Law Review article, ""Pursuing Justice for the Mentally Disabled,"" by Professor Grant H. Morris of the University of San Diego School of Law (42 San Diego L. Rev. 757 (2005)). Professor Morris’’s article, is a response to Professor Perlin’’s law review article, ""‘‘And My Best Friend, My Doctor / Won’’t Even Say What It Is I’ve Got’’: The Role and Significance of Counsel in Right to Refuse Treatment Cases,"" 42 San Diego L. Rev. 735 (2005). Professor Morris’’s spirited discussion of the role of lawyers’’ competence in individual right-to-refuse-treatment cases concludes with this paragraph:
The failure of lawyers, judges, psychiatrists, and society to treat mentally disabled people as people, that is, to treat them with dignity and respect, has left me dejected, depressed, even despondent. As Bob Dylan wrote, in a line that Michael quoted in his article, "I don't have the strength / To get up and take another shot." But not so for Michael Perlin. He remains defiant, determined, and most of all, devoted. Just like Don Quixote de la Mancha, this gallant knight remains dedicated to his cause. He continues to speak, and to write, and to hope. He pursues justice for the mentally disabled. Although we do not hear him and do not heed him, he will continue his quest. The windmills that Michael contests are not mere figments of his imagination. They are real and continuing problems. Michael is an irresistible force. But our attitude--our prejudice--toward the mentally disabled may well be an immovable object. How long will Michael continue to speak in a forest, while we hear only "sounds of silence" ? Or as Bob Dylan inquired: "[H]ow many ears must one man have / Before he can hear people cry?" [Mark Godsey]