October 29, 2005
Pilot Program in the OC to Track Sex Offenders in Relation to Crime Scenes
From MercuryNews.com: Santa Ana, CA (AP): "While global positioning systems (GPS) are used to track parolees across the country, Orange County [California] will be the first to automatically cross-reference their location with the scene of a recent crime. The state is paying for the two-year pilot program.
"It's one of those great tools to potentially identify a suspect, but it also helps us eliminate those people who have not committed the crime," Sheriff Michael S. Carona said Friday.
Under the system, the sheriff's department will send the state Department of Corrections and Rehabilitation information on crimes committed in its jurisdiction. If a parolee was within 500 feet of a crime scene, the state will notify the sheriff's department. The department can also ask which parolees were closest to a crime scene.
This week, GPS tracking began for 21 high-risk sex offenders in Orange County. Officials expect to increase the number to 40 within two weeks. Carona said he wants to expand the system to include all high-risk sex offenders, along with gang members, drug dealers and stalkers. Eventually, it should include all people on probation or parole, Carona said....
Monitoring a parolee with GPS costs the state $8.75 per day along with the $9.70 per day it costs to supervise someone on parole." Story... [Mark Godsey]
"Business is Booming for White Collar Criminal Defense Bar"
From Law.com: (The National Law Journal): "Business is booming for the white-collar criminal defense bar. Corporate officials -- both the legitimately worried as well as the unnecessarily paranoid -- see themselves as possible criminal targets and are lawyering up. What's spurring this significant ramp-up in corporate defense work? A major shift in the federal government's approach to corporate crime, says one white-collar criminal defense lawyer...
It all stems from the government's practice of considering indictments not just against individuals but also against companies, he said. Companies can avoid or defer prosecution by handing over to the government any findings from their internal investigations or implicating wrongdoers. That Justice Department policy was in effect earlier but was underscored in 2003 in the so-called Thompson memo, issued by then-Deputy Attorney General Larry D. Thompson...
In theory, creating conflicts between a company and its allegedly criminal officials helps the government get to the facts of a case faster. In practice, it has been a boon for defenders. "It's absolutely a criminal defense lawyers' employment initiative," said Stephanie A. Martz, director of the White Collar Crime Project at the National Association of Criminal Defense Lawyers. "Definitely, this is a boom time right now."
Even so, many white-collar defenders decry the Justice Department's cooperation program. "The fact that business is good doesn't mean that it's either pleasant or healthy for the system," said Joseph F. Savage Jr., a former prosecutor and member of the white-collar defense team at Goodwin Procter in Boston.
"When I first started [defense work], the government would go after people, not typically the company," he said. "Now it's a given the company is in the mix."
The Thompson memo says that indicting corporations for wrongdoing "enables the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover, and punish white collar crime." The memo adds that in gauging the extent of a corporation's cooperation, the prosecutor may consider the company's willingness "to identify the culprits within the corporation, including senior executives; to make witnesses available; to disclose the complete results of its internal investigation; and to waive attorney-client and work product protection."...
Prosecutors use cooperation pressure as a "very powerful tool," said Mary Jo White, chairwoman of New York-based Debevoise & Plimpton's 200-plus-lawyer litigation practice... But coercing a company to cooperate by waiving a privilege under threat of indictment is "being asked for too routinely and too often," White said. "Prosecutors shouldn't be saying, 'Waive the privilege or else be indicted.'" Story... [Mark Godsey]
One Way Ticket to Federal Court
From SeattleTimes.com: "A Southern Oregon woman used a stolen credit card to buy a state lottery scratch-it ticket that was worth $1 million...Christina Goodenow, 38, of White City was lodged without bail in the Jackson County Jail on charges of theft, forgery, identity theft, credit card fraud, possession of methamphetamine, computer crime and a parole violation.
Goodenow purchased the winning ticket Oct. 9 in Central Point, using a credit card that belonged to her mother-in-law, Inez Cornett, who died more than a year ago...Goodenow made the trip Oct. 12 to Oregon Lottery headquarters in Salem to accept a check of $33,500. The $1 million grand prize is paid out over 20 years...A search warrant served at her home Thursday turned up some methamphetamine, but little money." At this point, no one knows what happened to the first $33,500 payment. Story... [Mark Godsey]
Use of Cell Phones as Warrantless Tracking Devices--Struck Down
From washingtonpost.com: "The FBI may not track the locations of cell phone users without showing evidence that a crime occurred or is in progress,..In separate rulings over the past two weeks, judges in Texas and New York denied FBI requests for court orders that would have forced wireless carriers to continuously reveal the location of a suspect's cell phone as part of an ongoing investigation. Other judges have allowed the practice in other jurisdictions, but the recent rulings could change that.
Depending on a wireless phone's capabilities, carriers can determine either precise or rough locations of users when they make or receive calls, a feature primarily used for emergencies.
On Tuesday, a coalition of technology and privacy groups filed suit challenging a Federal Communications Commission order that would make it easier for law enforcement to monitor e-mail and other Internet-based communication.
In the New York and Texas cases, the courts approved FBI requests for other information from the wireless carriers, including logs of numbers a cell phone user called and received calls from. Court orders for that information require law enforcement agencies to show only that the information is relevant to an ongoing investigation.
But the FBI also sought cell-site locations, which the courts said amounted to the ability to monitor someone's movements. The judges ruled that such information requires law enforcement to show "probable cause" that a crime has been or is being committed.
Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause. Such orders granted quickly, they said, are critical in tracking fugitives and kidnappers, for example. The officials said that in their interpretation, cell phones are not tracking devices. And even if they are, they said, not all tracking devices require a showing of probable cause. The officials...said that only when someone has an expectation of privacy does the higher threshold need to be met and that cell phone use does not qualify.
Both [Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York] and federal Magistrate Judge Stephen Wm. Smith of the U.S. District Court for the Southern District of Texas, rejected that argument, and said the government was relying on creative and contrived legal theories." Story... [Mark Godsey]
CrimProf Blog Spotlight: Georgia State's Mark Kadish
"Mark Kadish graduated from New York University School of Law in 1967. He served in the Judge Advocate Generals Corps. from 1968 through 1971. He was an associate in the law firm of Bailey Alch and Gillis, in Boston MA from 1971 through 1974. He continued in private practice in Atlanta, GA specializing in defending federal criminal cases. He jointly published Volume I of Criminal Law Advocacy, wrote numerous articles for professional journals and lectured nationally.
Professor Kadish was an Adjunct Professor in the Emory University Law School masters program teaching litigation skills. He was a faculty member of the Advanced National Trial Advocacy College and Co-Faculty Director of the Atlanta Bar Association College of Trial Advocacy. He was Chair of the Criminal Defense Section of the Association of Trial Lawyers of America.
He joined the Law School in 1990. He has been the Director of the Lawyer Skills Development Program. He teaches various components of this program, including the second year required Litigation Workshop Course. He also teaches Advanced Issues in Trial Advocacy, a civil litigation seminar course. He has published several law review articles in the areas of criminal procedure.
His public service includes an appointment by the Mayor of Atlanta to review the city court system. He has also taught senior courses at Mercer University. He has been a speaker at various judicial conferences and bar association seminars. He was a part-time pro hac judge in the Atlanta Municipal Court and is currently a part-time magistrate judge in the State Court of Fulton County. He teaches educational programs to magistrate judges. He is a commentator on various television and radio station programs."
October 28, 2005
Bullet Proof Benches and 'Smart' ID Cards: A Look at New Courthouse Security Proposals
From Law.com (New York Law Journal): "In the wake of a series of unsettling breaches of courthouse security around the nation, the Office of Court Administration on Wednesday released a comprehensive set of 47 proposals to better protect New York courthouses.
A 10-member task force of court officials offered an amalgam of proposals, both large and small, to bolster security. They ranged from providing all 1,200 state-paid judges with bulletproof benches to insuring that prisoners change into civilian clothes before they are brought to courthouses for appearances.
The 51-page report is available on the court system's Web site at www.courts.state.ny.us.
In the last decade, the court system has handled 1,300 threats to judges without any serious disruption of courthouse routine, said Chief Administrative Judge Jonathan Lippman, who ordered the review.
But, he added, the recent slaying of a judge and two court employees in an Atlanta courtroom and the murder of the husband and mother of a federal judge in Illinois "prompted a top-to-bottom review of security procedures throughout the state to make sure that we have the most modern, state-of-the-art security procedures possible."
OCA will spend $342 million, or nearly 17 percent of its $2.1 billion budget, for security in the current fiscal year, which ends March 31. There are 3,500 court officers statewide, an all-time high, with 2,500 deployed in New York City.
Among the report's recommendations:
• Expand statewide statutory authorization in 23 counties for defendants to make routine court appearance via video teleconferencing and eliminate a requirement that the defendant consent to the video appearance.
• Make crimes against judges and court personnel designed to impede the judicial process aggravated offenses similar to the higher designation given to crimes committed against witnesses, jurors and crime victims.
• Establish SWAT-like teams of specially trained court officers to respond to emergencies and serious judicial threats.
• Clarify guidelines on the handcuffing of prisoners to require that they be rear-handcuffed at all times except when appearing before a jury or at an extended hearing.
• Establish a dormitory facility for the training of court officers upstate.
• Issue bullet-resistant vests to all state-paid court officers and develop a way to pay for them.
• Develop a "smart" identification card for court employees and attorneys who use photo ID cards to bypass security searches upon entering courthouses. The new cards would use computer technology to identify the card holder and could be canceled electronically once the card holder is no longer entitled to enter a courthouse without being searched.
• Study whether state court officers should be subject to ongoing performance standards, including periodic assessment of their physical skills."
Story... [Mark Godsey]
New Orleans Cops Fired
A smart Arizona cop told me that a lot of the New Orleans cops who "deserted" might well have been ghost employees holding no show jobs; they didn't show up for Katrina because they didn't exist. In any event, dozens have been fired. Story here. [Jack Chin]
CrimProfs on Libby Indictment
Including Viet Dinh (Georgetown), Erwin Chemerisky (Duke), Michael Cahill (Brooklyn), Andrew Levy (Maryland), Mark Godsey (Cincinnati) and Jack Chin (Arizona). Story here.
Libby Indictment Text Here
October 27, 2005
New Article Spotlight: Innocence, Harmless Error and Federal Wrongful Conviction Law
"Innocence, Harmless Error, and Federal Wrongful Conviction Law", by U. Va. CrimProf Brandon Garrett, Wisconsin Law Review, Vol. 35, 2005. SSRN abstract: This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial." Paper available here: http://papers.ssrn.com/paper.taf?abstract_id=794792
SCOTUS to Decide Whether to Fill in Crawford's Blank Spots
From Law.com: (The National Law Journal): "The outcomes of thousands of criminal cases hang in the balance while the U.S. Supreme Court decides whether to clarify when out-of-court accusations may be used in lieu of in-court testimony without violating defendants' Sixth Amendment right to confront witnesses.
Both the National District Attorneys Association's point man on the confrontation clause and the National Association of Criminal Defense Lawyers agree that the time is ripe for the court to satisfy its promise to fill in the blanks it intentionally left when it decided Crawford v. Washington, 541 U.S. 36 (2004).
Two petitions for certiorari that raise confrontation clause issues -- in the context of excited utterance exceptions to hearsay rules -- are pending before the court. Both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705, domestic violence cases, are listed for action by the court at its Oct. 28 conference. The court's decision on whether it will hear the cases is expected on Oct. 31.
Before Crawford, any hearsay could come in -- even when a witness did not testify -- if the hearsay exception was firmly rooted and traditional, and if a judge found the statement to be reliable and trustworthy in the circumstances in which it was made. Ohio v. Roberts, 448 U.S. 56 (1989).
Crawford bars testimonial hearsay introduced by the prosecution unless the defense has an opportunity to question the person who made the statement, and that person is unavailable at the time of trial. With some exceptions, the court explicitly decided that it would 'leave for another day' a more specific definition of 'testimonial.'...
Barbara Bergman, president of the NACDL and a visiting professor at Washington's Catholic University of America Columbus School of Law, noted the "tremendous confusion in federal and state court decisions as to the meaning of 'testimonial' in the context of Crawford.
"Judges have struggled to see where particular cases fit -- like 911 calls -- that fall between the cracks of the concrete definitions of testimonial that the court laid out," Bergman said." Story... [Mark Godsey]
Here's a chart from The National Law Journal, of where the various courts currently stand:
Where courts stand
Admissibility of "excited utterances" that describe criminal activity to governmental agents under the confrontation clause.
|Statement can be used at trial without the accuser or witness testifying: |
1st and 8th circuits
|Intermediate state courts in: |
|Circumstances dictate whether or not the statement can be used at trial without the accuser or witness testifying:|
2nd and 9th circuits
|High courts in:|
District of Columbia
|Intermediate state courts in: |
|Statement cannot be used at trial without the accuser or witness testifying: |
6th and 10th circuits
|High courts in: |
Intermediate state courts in:
No Tricks, No Treats, No Kids for Sex Offenders in New Jersey
From MSNBC.com: Newark: (AP): "New Jersey sex offenders who face supervision under Megan’s Law will be confined to their homes on Halloween and will be under orders not to answer the door when trick-or-treaters come calling. It will be the first time sex offenders in New Jersey will be subject to a curfew.
The rules were issued by the state Parole Board in a recent letter to the 2,200 offenders it supervises.
The offenders must be indoors by 7 p.m. Monday and cannot answer their door when trick-or-treaters knock. They cannot attend parties where there are children, and cannot take any children, including their own, out in search of treats." Story... [Mark Godsey]
New Article Spotlight: Wilfully Blinded: On Date Rape and Self-Deception
Willfully Blinded: On Date Rape and Self-Deception, Harvard Journal of Law & Gender, by Howard CrimProf Andrew E. Taslitz. SSRN Abstract: This article takes seriously the proposition that many men are telling the truth when they say that they honestly believed that a woman in a date rape case had consented when she in fact did not do so. The article argues, however, that the men are generally truthful at a conscious level, while being aware unconsciously that the truth is otherwise. Furthermore, the absence of conscious awareness is the result of self-deception. Drawing on research in philosophy and cognitive psychology, this article defines the various forms of self-deception and explains how they work in date rape cases. Date rape liability often involves a negligence analysis: Should the man have known of the woman's non-consent? Yet the penalties imposed for negligent date rape are often quite severe, more so than for most crimes of negligence. The article argues that self-deception is best understood as a form of negligent conduct but explains why it is morally far more reprehensible than other sorts of negligence. Next, the article responds to concerns about the morality of punishing men for unconscious thoughts and the problems posed for proving those thoughts and for free will. In particular, the article suggests a form of negligence liability in date rape cases that is meant to discourage male self-deception in sexual intercourse and that does not require proving what any individual male's unconscious state was in a particular case. The article further responds to arguments about the wisdom of such an approach given that it will unquestionably catch some non-self-deceiving males. The law's fear of imposing liability for unconscious desires is based upon a flawed conception of the nature of the conscious and unconscious minds that ignores the teachings of cognitive science. Those teachings establish that there are strategies for changing unconscious thoughts that motivate socially undesirable action even when we are not in the short run aware of the contents of our unconscious mind.
October 26, 2005
New Article Spotlight: The Law of Domestic Violence
Ruth Colker's article Marriage Mimicry: The Law of Domestic Violence appears in the William & Mary Law Review, Vol. 47, 2006. The SSRN abstract: "In this article, Professor Colker argues that the legal system does not simply privilege those in marital relationships but has now begun to privilege those in "marriage-like" relationships through what she terms a marriage mimicry model. She uses the law of domestic violence to critique this method of according benefits and protections. She traces the haphazard development of the law of domestic violence and argues that it has served to underprotect many of the victims of domestic violence because law makers have reflexively privileged marriage-like relationships without asking who is most in need of protection. She argues that the legal system should disentangle benefits and protections from marriage and, instead, use a functional approach to deciding who receives benefits and protections." Paper here. http://papers.ssrn.com/paper.taf?abstract_id=819164.
Three Strikes, You're Out
From Findlaw.com: "An attorney appealing his second drunken driving conviction was jailed [for contempt of court] Monday after he came to court intoxicated...He was ordered held without bail until Thursday [today]...Stewart faces a total of six years in prison and could be disbarred if convicted of a fourth felony offense." Story... [Mark Godsey]
CrimProf Comments on House's "Second Chance Federal Death Sentence" Provision
From NYTimes.com: "If all 12 members of a jury in a capital case in federal court cannot agree on whether to impose the death penalty, a convicted defendant is automatically sentenced to life in prison.
But that may be about to change. A little-noticed provision in the House bill that reauthorized the antiterrorism law known as the USA Patriot Act would allow federal prosecutors further attempts at a death sentence if a capital jury deadlocks on the punishment. So long as at least one juror voted for death, prosecutors could empanel a new sentencing jury and argue again that execution was warranted.
The Senate bill does not contain the provision, and representatives of both chambers will soon meet to discuss the differences between the two measures and potential compromises.
Sentencing deadlocks in federal capital trials are not unusual. In a federal terrorism trial in New York in 2001, for instance, the government sought the death penalty against two operatives of Al Qaeda for their roles in the deadly bombings of two American embassies in East Africa in 1998. The jury deadlocked 9 to 3 in favor of death in both cases, interviews conducted by The New York Times later revealed...
California and a handful of other states already allow new capital sentencing hearings...
State prosecutors said the federal jury provision could start a welcome trend. 'It sounds pretty even-handed,' said Joshua Marquis, the district attorney in Clatsop County, Ore. Just as juries must generally reach unanimous verdicts for conviction or acquittal, he said, they should be required to reach a unanimous decision on life or death.
[CrimProf Franklin E. Zimring of the University of California, Berkeley]...disagreed. 'It's not supposed to be a level playing field,' he said. 'It's supposed to be a penalty available when nothing else will do.'
Jennifer Daskal, a lawyer with Human Rights Watch in Washington [echoes Zimring's sentiments]....The possibility of repeated attempts to obtain death sentences from such 'death qualified' juries, she said, would only heighten the advantages prosecutors have." Story... [Mark Godsey]
"Confessions Under Torture"
From NPR.com: Oct. 25, 2005 Day to Day: "A federal court ruled that the confession of an alleged al-Qaeda member could be used at trial, despite the suspect's testimony that it was obtained under torture. Noah Adams talks with Slate legal analyst Dahlia Lithwick about the case, in which a U.S. citizen confessed -- while in the custody of Saudi Arabian authorities, often criticized for their harsh interrogation techniques -- to participating in a plot to kill President George W. Bush." Listen here [Mark Godsey]
Hawaii: ACLU Sues State for "Unsanitary" "Chaotic" Youth Prisons
From Findlaw.com: Honolulu (AP): "A civil liberties group sued the state of Hawaii on Monday, saying it failed to protect inmates at a youth prison where teens were abused and kept in overcrowded, unsanitary conditions.
The class-action lawsuit asks for a federal court-ordered expert to "design, implement and oversee policies and procedures" at the Hawaii Youth Correctional Facility, said Lois Perrin, legal director for the American Civil Liberties Union of Hawaii...
After an ACLU report in 2003 said young inmates were abused and harassed, the prison's two top administrators were removed and the attorney general's office launched an investigation. In August, the U.S. Justice Department released its own critical report, saying the young inmates' constitutional and federal statutory rights were being violated and describing the Kailua facility as 'existing in a state of chaos'...An ACLU lawsuit last month accused guards at the youth prison of harassing and discriminating against inmates because of their sexual orientation." Story... [Mark Godsey]
October 25, 2005
'Cuff Me' Elmo Takes the Walk of Shame
From MSNBC.com: Los Angeles (AP): "The red and cuddly Sesame Street Muppet Elmo has learned a new lesson: ‘H’ is for handcuffs.
A man dressed as the character was one of three impersonators arrested last week for allegedly harassing tourists for tips after posing for photos on Hollywood Boulevard. Booked with him were people impersonating superhero Mr. Incredible and the dark-hooded character from the horror movie "Scream."
The impersonators said they were taken into custody at gunpoint, handcuffed and paraded on the Hollywood Walk of Fame before stunned tourists and other impersonators. They were charged with misdemeanor “aggressive begging,” police said." Story... [Mark Godsey]
Crips Gang Co-Founder Scheduled for Execution
From CNN.com: Los Angeles (AP): "A judge signed a death warrant Monday for Stanley "Tookie" Williams, a co-founder of the notorious Crips gang who was nominated for the Nobel Peace Prize for his children's books. Williams is scheduled to die December 13 at San Quentin prison. The judge rejected requests by his attorneys to delay the execution until December 22 to give them more time to seek clemency from Gov. Arnold Schwarzenegger.
The December 13 date means attorneys have only until November 8 to submit a clemency request. The U.S. Supreme Court declined to consider Williams' case earlier this month.
'This case has taken over 24 years to get to this point,' Superior Court Judge William R. Pounders said. 'That is a long delay in itself, and I would hate to add to that delay.' Story... [Mark Godsey]