November 8, 2005
U Michigan Alito Site
Here. [Jack Chin]
Bone Marrow Transplants Mix Up DNA
From New Scientist.com: "IT SOUNDS like an open-and-shut case: a clear DNA match is made between semen from a serious sexual assault and a blood sample from a known criminal. Yet in a recent case from Alaska, the criminal in question was in jail when the assault took place. And forensic scientists had already matched the crime sample to the DNA profile of another person who was their prime suspect. It was only after careful detective work that the mystery was solved: the jailed man had received bone marrow from the suspect many years earlier.
This week, at a meeting of the American Society of Human Genetics in Salt Lake City, Utah, Abirami Chidambaram of the Alaska State Scientific Crime Detection Laboratory in Anchorage described the case to highlight the danger of miscarriages of justice. Given the retribution that can be doled out to sex offenders by other jail inmates, the consequences could be severe. "If you implicate the wrong person, they can be killed in prison," says Chidambaram.
When Chidambaram discovered the perplexing match, she initially thought there had been a sample mix-up. But there was no mistake. What's more, the jailed man and suspect shared the same surname.Because medical records are confidential, a detective had to make further enquiries among family and friends of the two men. That revealed that not only were the convict and suspect brothers, but the inmate had received a bone marrow transplant from his brother. As a result, his blood was populated with cells bearing his brother's DNA profile.It's an instance of life imitating art: in November 2004, US TV channel NBC broadcast an episode of Law and Order: Special victims unit in which a rapist nearly got away with his crimes because of a similar bone-marrow mix-up." [Mark Godsey]
November 7, 2005
SCOTUS to Review the Role of Military Tribunals
The Supreme Court has agreed to review the case of Salim Ahmed Hamdan (Hamdan v. Rumsfeld, 05-184). Hamdan, Osama bin Laden's former driver, is among approximately 500 foreigners who has been held at the U.S. military prison in Guatanamo Bay, Cuba. The Supreme Court will decide if he can be tried for war crimes before a military tribunal in Guantanamo Bay.
The Bush Administration initially prohibited these men from seeing their attorneys or challenging their imprisonment, but in 2004, the Supreme Court decided that U.S. Courts may accept filings from them, despite their classification as "enemy combatants." Before his appointment to the Supreme Court, Chief Justice Roberts was part of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit who ruled against Hamden and decided that the 1949 Geneva Convention does not apply to al-Qaida and its members--only "prisoners of war"--a category noninclusive of "enemy combatants."
Roberts didn't participate in the decision of whether to accept Hamden's case, but Hamden's attorney, Georgetown CrimProf Neal Katyal may request Roberts to participate in the Court's ultimate decision if the Court renders a 4-4 tie. Katyal calls the current system, "contrived...subject to change at the whim of the president...With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.
Other Law Profs have participated in the debate. Yale Law professor Judith Resnik comments, "At the moment there is no more critical issue than the exact scope of executive authority in the name of security." In October, she organized a statement from more than 500 law professors, urging the Supreme Court to take up the case.
Maryland Law professor Michael Greenberger thinks the Court's acceptance of Hamden's case is "a black eye for the Bush administration. This [case] opens a Pandora's box." Greenberger, served as a Justice Department attorney in the Clinton administration.
Murder Proved Thanks to Testimony of the Co-Conspirator's Lawyer
Ann Miller Klontz, a chemist, pleaded guilty to conspiring to kill her husband with arsenic, an old, old story. However, Klontz was caught thanks to the testimony of her boyfriend/co-conspirator Derril Willard's attorney. Willard committed suicide after consulting a lawyer. The lawyer was then targeted by the authorities, who got an order, affirmed by the North Carolina Supreme Court, holding that the lawyer had to give information about what Willard had said. The court concluded that the statement could not give rise to civil or criminal liability even had Willard been alive, because the statement was that "Klontz did it," so the statement was unprivileged.
But this is clearly wrong: Other evidence showed that Willard had been involved at other stages of the plot, and therefore his statement that his co-conspirator actually did the physical killing was inculpatory, and hence privileged, even on the North Carolina Supreme Court's bizarre theory of the privilege (If Jane Jones finds out from her attorney that in her state, adultery or homosexual conduct gives rise to neither criminal nor civil liability, that should not mean the lawyer is free to blab that information all over town). The North Carolina Supreme Court said in 2003: "we believe that communications between attorney and client regarding any criminal activity of a third party, which do not tend to harm the interests of the client" are unprivileged, but now, thanks to Willard's lawyer's disclosure of Willard's own words, everyone in North Carolina knows Willard is a killer, so the premise of the court's decisions was false. Story here; 2004 opinion upholding disclosure here. 2003 opinion setting forth general principle here. [Jack Chin]
Two Vehicular Homicides
John Robert Schrieffer, 74, Nobellist in physics, got two years in a California court for vehicular homicide after he fell asleep and drove into a crowd. However, in Florida, the pleas of survivors did not persuade a judge to incarcerate a 29 year old woman who killed two young boys. She didn't stop, she said, because she was scared (she dragged the children 150 feet). She was too scared to report the accident. When questioned five days later by police, she explained that a different car had done it, which turned out to be a lie. With these incredible prospects for rehabilitation, no wonder the court didn't send her to prison. [Jack Chin]
Did You Hear about the Trick the Supreme Court is Playing on First-Time Advocates?
It was Halloween day and first-time advocate Kim Martin Lewis, partner at the Cincinnati firm Dinsmore & Shohl, was deep into arguing her first Supreme Court case, Central Virginia Community College v. Katz, a case on state sovereignty and bankruptcy. Justice Ginsburg was in the middle of asking a question, when a "shot" rang out...[O]ne eyewitness likened the noise to a flash-bang grenade, used in war to disorient the enemy...Ginsburg jumped from her seat and Court police approached the bench. There was momentary alarm, before everyone realized, the "shot" was a lightbulb that exploded; glass fragments and flaming filament fell from the ceiling.
Lewis was shaken by the incident, "It absolutely sounded like a shot," Lewis said afterward. "There was this little ball of fire, and then the glass. It scared the heck out of me." But Chief Justice John Roberts Jr. quickly moved to cut the tension. This is just a trick "'they play on new chief justices all the time.' The remark had the desired effect, and people began laughing. Justice Antonin Scalia chimed in, 'Happy Halloween!'
And Ginsburg, barely missing a beat, started to resume her question. But Roberts could not resist one more crack: 'We're even more in the dark now than before,' he said, as the justices and spectators settled down. At the end of the argument, Roberts thanked the lawyers and apologized 'for the fireworks.' Story from Law.com... [Mark Godsey]
Nazi War Criminal Dies in British Prison
Anthony Sawoniuk was a joiner. He murdered Jews as a member of a a Belarus police force, then enlisted in the Waffen SS, but deserted and became a member of a Polish freedom fighter group when it became clear that the Nazis would lose the war. His criminal past was uncovered by the KGB in 1951, but he was not tried in his adopted home coutnry of Britain until 1999. Story here. [Jack Chin]
New Article Spotlight: Criminal Law and Freud
Deborah Denno of Fordham has posted Criminal Law in a Post-Freudian World on SSRN. Here's the abstract: Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code’s mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of consciousness and conscious will provides continuity with Freudian theory. Yet, in contrast to Freudian principles, this new science offers criminal law a means of enlightening existing mens rea doctrine with advanced discoveries that more easily comport with human behavior and evidentiary standards. The results of this author's unprecedented statewide study of criminal jury instructions also suggest that courts are wrong to distort or reduce the significance of mens rea in the ways juries interpret criminal cases. This article concludes that current consciousness research provides a sound vehicle for criminal law doctrine to return the law's focus to the defendant's mental state, thereby retaining the moral insights, but not the muddle, that Freudian theory originally contributed.
Obtain the paper here. [Mark Godsey]
TJ CrimProf President of NLG
San Diego –Professor Marjorie Cohn of the Thomas Jefferson School of Law here was chosen President-elect of the National Lawyers Guild at its annual convention last weekend in Portland, Oregon. Cohn served as Executive Vice President for three years, editor of the Guild Practitioner for nine years and she is co-chair of the Guild's International Committee. The National Lawyers Guild (www.nlg.org), founded in 1937, comprises more than 6,000 members and activists in the service of the people. Its national office is headquartered in New York and it has chapters in nearly every state, as well as more than 100 law school chapters, including one at Thomas Jefferson School of Law.
Cohn will take over as president in one year and then serve a three-year term. Nine of the 59 Guild members in the Thomas Jefferson School of Law student chapter attended the Portland convention. The TJSL student chapter this year has sponsored appearances on campus by Pablo Paredes, who refused to board a Navy ship and transport Marines to Iraq; Col. Janis Karpinski, the former commander of Abu Ghraib prison in Iraq; and Santa Clara School of Law Professor Gerald Uelmen, who analyzed the Supreme Court’s new term.
Cohn, who was honored this spring with the San Diego County Bar Association’s 2005 Service to Legal Education Award, is conducting scholarly research on criminal liability for torture of prisoners in U.S. custody stemming from the wars in Afghanistan and Iraq. Cohn’s research addresses the criminal liability of interrogators and intelligence personnel, as well as command responsibility. She is examining the obligations of the United States under the Torture Convention and the Geneva Conventions, and individual liability under federal statutes.
Cohn teaches Evidence, Criminal Law, Criminal Procedure, and International Human Rights Law at Thomas Jefferson and frequently is called upon by local, national and international media to serve as a legal analyst. She also is the U.S. representative to the executive committee of the American Association of Jurists, and serves on the Roster of Experts at the Institute for Public Accuracy. Cohn is a weekly columnist for Truthout (www.truthout.org). In addition, she was a legal observer in Iran on behalf of the International Association of Democratic Lawyers and she has participated in delegations to Cuba, China, and Yugoslavia.
November 6, 2005
This Week's Top 5 Crim Papers
|(1)||185||Rescue Without Law: An Empirical Perspective on the Duty to Rescue |
David A. Hyman,
University of Illinois College of Law,
Date posted to database: September 7, 2005
Last Revised: September 20, 2005
|(2)||144||Repression and Denial in Criminal Lawyering |
DePaul University College of Law,
Date posted to database: August 26, 2005
Last Revised: September 16, 2005
|(3)||119||Property Rules and Liability Rules, Once Again |
Keith N. Hylton,
Boston University School of Law,
Date posted to database: October 5, 2005
Last Revised: November 2, 2005
|(4)||94||Home as a Legal Concept |
Widener University - School of Law,
Date posted to database: September 16, 2005
Last Revised: September 16, 2005
|(5)||90||Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness |
Amanda C. Pustilnik,
Covington & Burling,
Date posted to database: August 26, 2005
Last Revised: September 8, 2005
KKK Member Sentenced for Selling Pipe Bombs
Story here. [Jack Chin]
Northwestern CrimProf Steve Drizen Quoted in Article About Juveinle Interrogations
This is a followup story on the false confessions of juveniles in Chicago to murders they did not commit (and their successful lawsuits). Story here. [Jack Chin]
Florida Prisoner #089956 Given NYC Marathon #49997 to Run the NYC Marathon Behind Bars
From NYTimes.com: "In a recent letter to the director of the New York City Marathon, Jim Deupree asked to run the 26.2-mile race on Sunday. His would be an unlikely entry. He is incarcerated at a state prison here among the cotton and peanut farms of the Florida Panhandle, midway through a 30-year sentence for armed robbery.
"I am a fairly decent 69-year-old long-distance runner and commercial printing salesman from Indiana presently 'retired' here in Florida," Deupree wrote with dark humor.
He proposed to run, not through New York's five boroughs with 37,000 other entrants, but in the razor-wire isolation of the prison yard of the Jackson Correctional Institute. He would circle a dirt track, one that measures about two and a quarter laps to the mile, until he completed the marathon in about 60 laps. He said he had trained 50 miles a week and hoped to complete the race in four hours.
His aim, Deupree said, would be to raise money for cancer research in memory of George Sheehan, the running guru and author who died of prostate cancer in 1993. Sheehan had written encouraging notes and sent him running shoes, Deupree said.
He had run about 200 of these proxy races of various distances over the past 10 years, Deupree wrote in September to Mary Wittenberg, director of the New York City Marathon and chief executive of the New York Road Runners, the club that organizes the race.
The club eagerly granted Deupree a race number, 49997, and asked that he report his finishing time. "Keep on running!" Robert L. Laufer, a lawyer for the Road Runners, wrote." Story... [Mark Godsey]
Prenatal Care and Parenting Classes in Prison
From NPR.org: "Bedford Hills Correctional Facility in upstate New York houses the oldest prison nursery in the country. Pregnant inmates are given prenatal care and parenting classes. Some women are permitted to keep their babies with them in prison for up to 18 months, in an effort to create bonds between mother and child. Linda Wertheimer talks with some inmates, including one 18-year-old mother incarcerated for transporting drugs internationally." Listen here... [Mark Godsey]
Texas Death Row Inmate Still at Large UPDATE: CAPTURED
UPDATE: captured. From MSNBC.com: "Jurors and victims’ relatives fear they might be targets of a death row inmate who freed himself from handcuffs and walked out of a county jail in civilian clothes. Convicted killer Charles Victor Thompson remained at large Saturday, authorities said. Thompson, 35, fooled at least four jail employees when he walked out of the Harris County Jail on Thursday.
“This was 100 percent human error; that’s the most frustrating thing about it,” sheriff’s spokesman Lt. John Martin said Friday. “There were multiple failures. There were several points where it could have been prevented.”...
Several relatives of Thompson’s victims — his ex-girlfriend and her boyfriend — went into hiding or agreed to police protection, the Houston Chronicle reported...
Thompson was condemned in 1999 for the shooting deaths a year earlier of Hayslip, 39, and Darren Keith Cain, 30. The Texas Court of Criminal Appeals ordered he be resentenced and on Oct. 28 a new jury again recommended the death penalty. Thompson was being held in the county jail pending his transfer back to prison...
On Thursday, Thompson claimed he had an appointment with his lawyer and was taken to a meeting room. However, the visitor was not Thompson’s attorney. Martin said investigators were questioning the visitor but wouldn’t give details.
After the visitor left, Thompson removed his handcuffs and his bright orange prison jumpsuit and got out of a prisoner’s booth that should have been locked. He then left wearing a dark blue shirt, khaki pants and white tennis shoes, carrying a fake identification badge and claiming to work for the Texas Attorney General’s office." Story... [Mark Godsey]