November 4, 2005
Corporal Punishment: A Good Rule of Thumb...Removal?
From MSNBC.com: Reno, NV (AP): The mayor of Las Vegas has suggested that people who deface freeways with graffiti should have their thumbs cut off on television. “In the old days in France, they had beheadings of people who commit heinous crimes,” Mayor Oscar Goodman said Wednesday on the TV show “Nevada Newsmakers.”...
I’m saying maybe you put them on TV and cut off a thumb,” the mayor said. “That may be the right thing to do.” Goodman also suggested whippings should be brought back for children who get into trouble. Story... [Mark Godsey]
9th Circuit: Law Prohibiting False Statements Against Officers, Overturned
From MSNBC.com: San Francisco, CA (AP): The 9th Circuit Court of Appeals in California has nullified a California criminal law enacted after Rodney King's 1991 beating. The law prohibited citizens from knowingly lodging false accusations against police officers, an offense punishable by up to six months in jail. The 9th Circuit held that the law unconstitutionally limited free speech, because the law did not prohibit false statements supporting officers, but rather, only the negative false statements. The law was enacted in 1995 in reaction to a surge in complaints against officers following King's 1991 taped beating. Story... [Mark Godsey]
CrimProf Blog Spotlight: Cumberland Law's Donald Cochran
"Originally from Columbia, Missouri, Professor Cochran holds both an undergraduate and law degree from Vanderbilt University.
After graduating from law school, Professor Cochran headed to Atlanta where he was a law clerk to United States District Judge Julie Carnes. In 1993, he moved to Birmingham to assume a position as a deputy district attorney for Jefferson County, Alabama. As part of the special prosecutions unit, dedicated to sex crimes and homicides, he handled approximately 70 jury trials including 16 capital murder cases.
In 1998, Professor Cochran moved to a position as an Assistant United States Attorney for the Northern District of Alabama. He successfully prosecuted a number of high profile criminal cases including the 1963 Sixteenth Street Baptist Church bomber, Bobby Frank Cherry. For his work in the Sixteenth Street Church Bombing Case, Professor Cochran received the Directors award and was the subject of a feature story in the Vanderbilt Lawyer.
One of Professor Cochran’s great strengths as a practicing lawyer was his ability to integrate technology into the presentation of a case. He has developed and teaches an Advanced Trial Advocacy course which stresses the use of technology. He also teaches Basic Trial Advocacy and Criminal law."
What a Load of BS
Bull Semen, that is. A cache of bull semen from "prominent" sires, worth an estimated $75,000, was stolen from a farm in Maryland. Story... [Mark Godsey]
November 3, 2005
Prosecutors are from Neptune, Defense Attorneys are from Pluto
A commentary by Richmond CrimProf and Dean Rod Smolla here. [Mark Godsey]
Military Commission Chief to Speak at W&M Law on Detainee Operations in War on Terror
John D. Altenburg, Jr., the retired Army major general in charge of the trials of terror suspects at Guantanamo Bay, Cuba, will present a lecture titled “Detainee Operations in the War on Terror” at 3:30 p.m. on Wednesday, Nov. 9, at William & Mary Law School. The talk, part of the Distinguished Lecture Series sponsored by the Human Rights and National Security Law Program, is free and open to the public and will be held in room 127. Defense Secretary Donald H. Rumsfeld appointed Altenburg to serve as the appointing authority of military commissions in 2004. In this role, Altenburg is responsible for approving charges against individuals detained at Guantanamo Bay, approving plea agreements, and appointing members of military commissions. Prior to being named to this post, Altenburg had retired from active duty, following 28 years as a U.S. Army lawyer. From 1997-01, he served as the assistant judge advocate general for the department of the Army and, in that post, provided advice on major legal and policy issues and was responsible for legal services provided by the department’s civilian and uniformed attorneys around the world.
A graduate of Wayne State University, Altenburg earned his J.D. from the University of Cincinnati College of Law. He joined the law firm of Greenberg Traurig in Washington, DC, in 2002, following his retirement from active duty.
For more information, call the Law School at 757-221-1840 (email@example.com).
Russia: Empty Acquittals and Rampant Double Jeopardy
Twelve years ago, the Russian legal system began using juries as part of an effort to move away from the former Soviet legal system of the 1990s. But, in practice, juries' decisions rarely stand, leaving the Russian trial by jury an empty check on the State. Russian law does not prohibit double jeopardy, and prosecutors (as well as defendants) can appeal verdicts. Jury acquittals are almost always appealed.
According to Russian court statistics and analyses by Russian legal scholars, "In the past five years, between 25 percent and 50 percent of not-guilty verdicts returned by juries were reversed by the country's Supreme Court."
Although the Supreme Court's power to overturn jury verdicts is supposedly curtailed to a limited number of reasons, the Court has broadly interpreted its power. For example, Vladislav Kozachenko, who was recently acquitted by a jury for the third time for a double murder, had his first jury acquittal overturned because the judge "failed to officially notify a relative of one of the victims of his right to make a final statement to the jury." Although he has been acquitted by two separate juries since his initial acquittal, the State plans to appeal this third acquittal as well. In fact, the State plans to continue trying Kozachenko until a jury renders a guilty verdict. Story from washingtonpost.com... [Mark Godsey]
The Worst Defense Theory of the Year Award Goes to...
Gail O'Toole's attorney. Gail O'Toole, in case you haven't heard, is the woman convicted of simple assault for gluing her ex-lover's penis to his stomach, his testicles to his leg, and his buttocks cheeks together, while he slept. She lured her ex-lover to her home under the guise that they should reestablish their friendship. Although O'Toole admitted that she had been planning the assault since they broke up five years prior, O'Toole's attorney used the theory that "this was part of routine sexual activity between the couple -- acts that he agreed to -- incidents that should have stayed in the bedroom." Story... [Mark Godsey]
Utah Judge Has Three Wives
I have always been troubled by the criminalization of plural marriage (among consenting adults), as a religious, rather than civil, legal, institution. Doesn't the free exercise clause allow individuals to go through whatever religious rituals they like with whomever they like? So the law could criminalize being a party to more than one civil, legal marriage at the same time, but how can the state can criminalize a particular set of religious rituals that do not purport to have legal consequences? If a whole religious community, for example, had a sacrament called "community marriage" could that ceremony in and of itself be criminalized? After Lawrence v. Texas, non-marital sex in and of itself cannot be criminalized, although I suppose adultery can still be prohibited. But if this judge engaged in religious but not civil ceremonies with three different people, with all parties having no intent to create legal consequences (i.e., none of them intending to be legally married, just married in the eyes of their church), I vote that the free exercize clause allows him to do to. Story here. [Jack Chin]
November 2, 2005
WI: Double Jeopardy Case
The U.S. Supreme Court denied cert. of a Wisconsin Supreme Court decision affirming a double-jeopardy reversal of a man tried four times for the same crime. He was convicted 3 out of the 4 times, but the 3d trial ended in a mistrial without, according to the Wisconsin Court of Appelas and Supreme Court, manifest necessity. The Court of Appeals had rejected the double jeopardy claim twice before accepting it a third time; the prosecution argued law of the case, which might make sense in an argument to the Court of Appeals, but it seems wrong to argue law of the case in the Supreme Court, which had never addressed the issue. Obviously, no Supreme Court is bound by a prior legal determiantion of a lower court. Story here. [Jack Chin]
DOJ Report: Prisoners in 2004
Here. "Highlights include the following:
- Ten States had increases of at least 5%, led by Minnesota (up 11.4%), Idaho (up 11.1%), and Georgia (up 8.3%).
- Eleven States experienced prison population decreases, led by Alabama (down 7.3%), Rhode Island (down 2.8%), New York (down 2.2%),
- Local jails housed 74,378 State and Federal inmates (5.0% of all prisoners)."
The Nation's prison population grew 1.9% in 2004, reaching 1.5 million inmates.
New Article Spotlight: The Commerce Power and Criminal Punishment
NYU CrimProf Margaret Lemos has published The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence? in 84 Texas Law Review (2006). The SSRN abstract: "The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts - the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce - by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court's decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational. The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress's legislative authority), but pays scant attention to how Congress legislates. Commentators assume that, since Congress's power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well established in the civil sphere, it must be equally clear in the criminal context. As this article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress's discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs of findings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant's conduct and interstate commerce." Paper available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=822867
Southwestern CrimProf's Habeas Corpus Win
Ken Williams won a 5th Circuit habeas and a 9-7 denial of rehearing en banc in a capital case where the defendant was tricked into confessing. The district court found that the defendant had requested counsel, but was told by the police that his lawyer told him to go ahead and talk without an attorney present. Story here. [Jack Chin]
Mafia Constitutes 3.4% of Italy's GDP
From People'sDailyOnline.com: "The Calabria-based mafia organisation made 36 billion euros (43.6 US dollars) last year, Italian media reported on Sunday. The report by Italian social research institute Eurispes said the criminal revenue in 2004 equalled 3.4 percent of Italian GDP. Drug trafficking was the organisation's most profitable business, generating 22.3 billion euros (26.7 billion dollars), Eurispes said.
Skimming off money from public works contracts and general business corruption were the next most lucrative activities, netting the group more than 4.7 billion euros (5.7 billion dollars). Prostitution and arms trafficking made the 'Ndrangheta an estimated 4.6 billion (5.6 billion dollars) while extortion and loan-sharking brought in 4.1 billion (4.9 billion dollars), the report said.
It stressed that the 'Ndrangheta's grip on the southern region was having a devastating social impact. The 'Ndrangheta is believed to have been responsible for the murder of an important local politician earlier this month. Franco Fortugno, deputy chairman of the regional "parliament", was gunned down on October 16 as he voted in centre-left primary elections in the town of Locri. The slaying shocked the country and fuelled fears that the ' Ndrangheta had become even more powerful and dangerous than the Sicilian Mafia, Italian media said. " [Mark Godsey]
November 1, 2005
"Alito's Friends and Supporters Available": A Tiny Insight into the PR Process
Here's a press release that "went out on the wire" identifying those who are willing to talk to the media in support of the nominee. In addition to his elementary school english teacher, Elaine Tarr, are a number of legal academics and practicing lawyers. [Jack Chin]
Georgetown Future Law Profs Fellowship
Since 1989, Georgetown University Law Center’s Graduate Fellowship Program for Future Law Professors has worked to expand the avenues available to aspiring law professors, and to increase the diversity of the law teaching profession, by attracting top law school graduates and lawyers who bring underrepresented perspectives to the development of legal scholarship. Each year, the Law Center offers the fellowship to an individual who shows outstanding aptitude for independent legal research and a strong desire to teach law. As demonstrated by the diversity of our own faculty, the Law Center values the contribution that diverse experiences and viewpoints make to a well-rounded legal education, and is committed to mentoring aspiring law professors.
The Future Law Professors program has been designed to permit a flexibility that takes advantage of each candidate’s individual strengths. During their 18 months in residence at Georgetown, fellows will have opportunities to:
-Work with a single faculty mentor;
-Identify an area of scholarly interest and expertise—providing a head start in the single most difficult task for any new law teacher;
-Watch faculty mentors teach, and discuss teaching techniques with them;
-Engage, with faculty mentor approval, in actual classroom teaching;
-Participate in the rich mixture of scholarly symposia, invited lectures, and brown bag seminars for Georgetown faculty;
-Complete a piece of published research before entering the job market;
-Obtain faculty recommendations for law teaching jobs that utilize the existing academic network.
Past Future Law Professor fellows have gone on to become tenured or tenure track faculty at distinguished universities, including Albany, Catholic, University of Florida, Fordham University, University of Illinois, University of Indiana, Notre Dame University, Rutgers, and Wisconsin.
Both practicing lawyers and recent law school graduates holding a J.D. from an ABA-accredited law school are eligible to be considered as Future Law Professors (foreign-trained lawyers are not eligible for the program). We seek applicants who have demonstrated an outstanding aptitude for independent legal research (either through prior research as a law student or legal experience after law school), and who also have varied intellectual interests and may wish to pursue legal research ranging across the full spectrum of legal theory.
Fellows have two options for when they choose to start the program. A fellow may choose to begin the program in January and spend until June of the following year in residence; or to start in August and finish in December of the following year. Within this timeframe, the fellow will be able to complete at least six months of research and writing prior to the beginning of the law school hiring season; and, during the 18 months, will also have enough time to complete a substantial piece of published scholarship.
The Fellowship offers a tuition waiver, eligibility for staff health insurance, and a stipend of approximately $54,000 over the 18-month period.
To apply, candidates must submit the following materials to the Graduate Admissions Office by December 1, 2005:
Completed Georgetown University Law Center LL.M application (including all required supplementary materials);
Completed Georgetown University Law Center Future Law Professors Program Application Form;
Detailed research proposal 10 to 15 pages in length. The application deadline is December 1, 2005. Applications postmarked after this date may not be considered. Application information and materials are available through our website at http://www.law.georgetown.edu/graduate/fellowships.html#3.
Former Death Row Inmate's Visit to UNC Law
Here. [Jack Chin]
Oral Argument in Confessions Case Today
The case is Maryland v. Blake. Question presented: Did the police actions in question constitute the functional equivalent of interrogation, and if so, were they appropriately ruled inadmissible at trial? Details of case here. [Mark Godsey]
Alito's Criminal Practice Experience
Here's an article outlining some of Alito's criminal practice experience. [Mark Godsey]
October 31, 2005
Homicide By Failure to Give Medication
Here's a case right out of a crim law final exam: A mother convicted of murder for failure to give her daughter insulin. [Jack Chin]