November 26, 2005
Mental Health Records Not In Firearms Database
Certain mental health conditions can make one ineligible to buy a firearm under federal law. See 18 U.S.C. 922(g) ("It shall be unlawful for any person--. . .(3) who is an unlawful user of or addicted to any controlled substance [or] (4) who has been adjudicated as a mental defective or who has
been committed to a mental institution . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce"). However,
most of those records are not checked when individuals purchase weapons. Story here. [Jack Chin]
NY: Gay Partner Seeks Spousal Privilege
Story here. [Jack Chin]
1,000th Execution Next Week?
This background piece includes commentary from Cardozo CrimProf Barry Scheck, and talks about two past executions which may have been of innocent people. Story here. [Jack Chin]
November 25, 2005
CrimProf Spotlight: Minnesota's Kevin Reitz
Professor Kevin Reitz "joined the University of Minnesota law faculty in 2005. He teaches criminal law, criminal procedure, and professional responsibility. His scholarship is focused on criminal justice policy, including law and criminology. His recent book with Henry Ruth, The Challenge of Crime: Rethinking Our Response (Harvard University Press, 2003), considers issues of crime and punishment in American history, drug control policy, policing, gun control, and juvenile justice. Much of his writing has been in the field of sentencing law and policy, including 2005 articles in the Columbia and Stanford Law Reviews. In addition to his research, Professor Reitz serves the criminal bar and the criminal justice community. In 1993, he organized the pilot meeting of the National Association of Sentencing Commissions, which has gone on to become a nationwide resource for states contemplating or undertaking the process of sentencing reform. He continues to work with NASC and with individual sentencing commissions nationwide. From 1989 to 1994, he served as Co-Reporter for the new edition of the ABA’s Criminal Justice Standards for Sentencing. In June 2001, he was appointed by the American Law Institute to be Reporter for the first-ever revision of the Model Penal Code, limited to the Code’s provisions on sentencing and corrections. This ambitious project has drawn wide attention from policy makers and scholars, including a full symposium issue of the Buffalo Criminal Law Review in 2003.
Professor Reitz graduated from the University of Pennsylvania Law School in 1982, where he served as Comment Editor of the Law Review. Following graduation, he clerked for one year for Justice Jay A. Rabinowitz of the Supreme Court of Alaska in Fairbanks. From 1983 to 1988 he was an associate in the litigation department of Saul, Ewing, Remick, and Saul, in Philadelphia, where he handled criminal and civil cases. From 1988 to 2005 he taught at the University of Colorado School of Law in Boulder. In 2002 he was visiting fellow at the Institute of Criminology at the University of Cambridge, where he taught a seminar in sentencing policy and research." For a list of Reitz's publications click here.
World Health Organization Issues Report on Domestic Violence
November 24, 2005
Open Letter from John Dean to Patrick Fitzgerald
Here. [Jack Chin]
Scott Peterson Sues to Stop Ex-Lawyer's Book
A former lawyer for the Peterson defense team has a book coming out, explaining why Scott is innocent. Nevertheless, Peterson is suing to stop publication of the book. Is this a publicity stunt on the part of Peterson on top of a publicity stunt by his former lawyer? Why would Peterson object to someone arguing that he is innocent? Of course, if the book is really unauthorized, it is a disgrace--lawyers should not write about their current or former clients without permission. [Jack Chin]
Northwestern CrimProf Sheds Light on Prosecutions of CIA Operatives In Absentia
Italy's chief anti-terrorism expert for the northern Italian region has stated his intention to prosecute 22 past and present CIA operatives "in absentia" on kidnapping charges. This decision comes in the wake of European nations' reactions to recently publicized information about how the CIA has used European facilities since 9/11. Recent news reports have exposed that aircrafts registered to CIA front companies have been using European airports with increasing frequently since 9/11. At least eight European nations have raised questions about this secret CIA practice, known as "extraordinary rendition." The Milan case being pursued by Italian prosecutor Armando Spataro that now threatens to further expose the once-secret practice stems from the February 2003 abduction of an Egyptian-born imam, Osama Moustafa Hassan Nasr, better known as Abu Omar. Omar was abducted as he walked from his Milan apartment to a nearby mosque.
Although they are highly uncommon, if not unknown in the United States, trials in absentia are more common in Europe, particularly in terrorism cases. The European Court of Human Rights has advised that convicting a defendant in absentia does not violate the defendant's human rights as long as: 1) the defendant has been notified that a trial is taking place; and 2) the defendant is provided with legal counsel. In some cases, even defendants thought to be dead have been convicted in absentia.
The Milan kidnapping trial will proceed if the Milan Judge Chiara Nobili grants permission; Nobili has already approved warrants for their arrests. If the CIA operatives are convicted, they will be subject to arrest and extradition in any of the 184 Interpol (international police organization) countries. Prosecutor Sparato believes that Italian criminal procedure affords him authority to take testimony from potential witnesses located at the U.S. Embassy in Rome (where the CIA's Italian branch is located), the U.S. Consulate in Milan (from where Omar's abduction was coordinated), and from people currently residing in the U.S.
But international law experts, including Northwestern CrimProf Ronald Allen (pictured), don't think the governing laws and procedures give clear guidance on how this situation should be handled.
From The Chicago Tribune: "This is uncharted territory," says Ronald Allen, a professor of criminal law at Northwestern University. Although procedures exist for the international exchange of evidence in civil cases, Allen says "these kinds of things just don't come up" in most international criminal cases.
Other experts said that while it might be impossible for Spataro to obtain evidence or testimony in the United States without the assistance of the Bush administration, which is not likely to be forthcoming, U.S. Embassy employees in Rome who do not have diplomatic immunity probably would be subject to the normal processes of Italian law. Prospective witnesses presumably would include CIA officers stationed in both locations." Read more. . . [Mark Godsey]
Suspect Found with $200K Worth of Stolen Legos
From MSNBC.com: "PORTLAND, Ore.(AP) - "Agents had to use a 20-foot truck to cart away the evidence from a suspect’s house — mountains of Lego bricks. William Swanberg, 40, of Reno, Nev., is accused of stealing hundreds of thousands of dollars worth of the colorful plastic building blocks. Swanberg was indicted by a grand jury in Hillsboro, a Portland suburb, which charged him with stealing Lego sets from Target stores" in five Western states, changing their barcodes, and reselling them on the internet. Story. . . [Mark Godsey]
U.S. Abandons Prosecution of Arthur Andersen
From NACDL.com: "The Justice Department [on Tuesday] abandoned its prosecution of Arthur Andersen LLP, walking away from one of the signature cases in its drive to eradicate corporate fraud. The announcement came six months after the U.S. Supreme Court tossed the accounting firm's 2002 conviction on obstruction-of-justice charges related to its work for client Enron Corp. In a 9 to 0 decision, the court ruled that the jury instructions were so broad that jurors could have found Andersen guilty even if officials did not intend to break the law and impede a looming investigation.
Andersen's indictment sent clients scrambling for the exits and quickly led the firm to shut its doors -- at a cost of 28,000 jobs in the United States...Andersen came under intense scrutiny in 2002 amid disclosures that the firm had shredded tons of Enron-related documents as investigators probed accounting troubles at the Houston energy trader. Several jurors said they voted to convict Andersen based on evidence that an in-house lawyer had tampered with language in a memo about Enron.
The controversy served as a catalyst for a series of significant changes to the accounting industry, which had been largely self-regulated for more than 70 years. Congress imposed new criminal penalties on auditors who destroyed or tampered with work papers. It also created an independent oversight board to monitor the work of accounting firms and inspect their operations.
"It was a wake-up call," said Donald T. Nicolaisen, who served as the chief accountant at the Securities and Exchange Commission until last month. "I believe that wake-up call has been largely heeded. . . . It has been a period of very dramatic change, and mostly good change."...Critics of the government's aggressive efforts to crack down on business wrongdoing say the Andersen decision is the latest signal that prosecutors have overreached in an effort to boost investor confidence and calm the markets." More from the Washington Post. . . [Mark Godsey]
Mark Godsey and Ohio Innocence Project on A&E's American Justice Saturday
CrimProf Blogger Mark Godsey runs the Ohio Innocence Project at the University of Cincinnati College of Law. Among his cases is one from where DNA points to another suspect. It has been blogged here before. The case will be featured this Saturday on A and E's American Justice at 11 p.m., 10 central. The episode: "What the Girl Saw. On June 6, 1998, between midnight and 6:30 a.m., a man crept into 58-year-old Judith Johnson's home, and raped and killed her--while her 6-year-old granddaughter Brooke slept. Brooke told police that a man who looked and sounded like "Uncle Clarence" did it. Despite new evidence--including Brooke's reidentifying a local resident, with a history of violent sexual attack and a dead ringer for her uncle, as the killer--Clarence Elkins' appeal was denied. His wife vows to continue her fight to free him." [Jack Chin]
FL: teacher Avoids Jail for Student Sex
The 25 year old Forida teacher who had sex with a 14 year old boy avoided prison by abandoning her insanity defense and pleading guilty. She will be required to register as a sex offender. Story here. [Jack Chin]
November 23, 2005
Jose Padilla Goes from Enemy Combatant to Criminal Defendant
From Law.com: "With the stroke of a pen, alleged terrorist Jose Padilla has been transformed from an enemy combatant with few legal rights to a criminal defendant covered by the Bill of Rights. On Tuesday, Padilla became a defendant in a federal criminal case in Miami. Legal critics contend the change is an indication the Bush administration knew it abused its discretion and retreated to preserve its ability to designate future enemy combatants, as Padilla's case was poised for review by the U.S. Supreme Court." More from the Daily Business Review. . . [Mark Godsey]
Congress Furthers Efforts to Limit Federal Habeas Review
From Law.com: "Congress moved on several fronts last week to impose sweeping limits on prisoners' ability to challenge the legality of their convictions and sentences in federal court. The Republican-led efforts included the last-minute insertion of a controversial key provision on federal habeas review into the USA Patriot Act legislation. Former Solicitor General Seth Waxman called it "a very grave mistake" that would remove power from the courts and give it to the U.S. attorney general." More from The National Law Journal. . . [Mark Godsey]
Woopsy, A Judicial "Boo-Boo" Could End Judge's Career
From Law.com: "The Queens judge who sparked an uproar when she helped a defendant escape arrest through a back exit of the courthouse should be removed from the bench, a disciplinary panel ruled Tuesday in one of its most contentious decisions on record. The judge, Supreme Court Justice Laura D. Blackburne, was immediately taken off active duty by the Office of Court Administration. She faces a lengthy suspension and then, if the Court of Appeals affirms the disciplinary ruling, the end of her nine-year judicial career.
In a 9-2 vote that included a forceful dissent, the majority of the Commission on Judicial Conduct said the judge brought the judiciary into "disrepute" when in June 2004 she ordered a court officer to escort the defendant from the courthouse via a private stairwell. Blackburne, 67, was under the impression that a detective, who was waiting outside the courtroom to arrest the defendant for an alleged robbery, had tried to mislead the court about his intentions. The defendant eventually was arrested, but the charges were dismissed...
In asking for the judge's removal, the counsel to the commission, Robert Tembeckjian, noted Blackburne's initial reaction to her behavior. According to commission records, the judge told a supervising district attorney, "I guess I really made a boo-boo." More from Law.com. . . [Mark Godsey]
Michael Jackson Jurors
From TheOnion.com: Two jurors in the Michael Jackson case say they regret acquitting the King of Pop in his child molestation case, and have book deals pending. Average Americans weigh in here. [Mark Godsey]
SIU Creates Center Focused on Rural Crime
From an SIU press release: "CARBONDALE, Ill. -- Legislation approved earlier this month by the U.S. House includes funding for a new research center at Southern Illinois University Carbondale aimed at studying and preventing small-town and rural crime. A $100,000 federal grant to establish the Center for Rural Violence and Prevention is part of the final U.S. House Science-State-Commerce bill. Approval is pending in the Senate. U.S. Rep. Jerry Costello, D-Belleville, helped secure the funding for the project, which involves several departments in the College of Liberal Arts and the School of Law. Research conducted at the new center will improve community justice systems in rural and small-town settings. In particular, researchers will focus on crimes involving violence against women, the processes involved in the criminal justice system and the public perception of crime-related issues. "We're looking at rural and small town settings as very unique and different than metropolitan centers, and having unique crime problems," said John S. Haller, vice president for academic affairs at SIU. "Not the least of the problems is methamphetamine. But there are also immigration issues, keeping up with sex offender registries, and others." Read more . . . [Mark Godsey]
November 22, 2005
Katrina Arrestees Stuck in Criminal Justice Limbo
From the Los Angeles Times: "Nearly three months after Katrina struck Louisiana, about 2,500 people arrested on minor charges before the hurricane struck are still in custody. A number of them have never been charged, many are being held beyond the time they were due to be released, and hundreds have never had a court hearing. Their plight is one of many troubling issues facing the Louisiana court system, where funding for public defenders, among other problems, has been further imperiled by the storm.
When the storm struck, about 8,500 people being held in the New Orleans jails were relocated to facilities throughout — and, in some instances, outside — the state. A small group of volunteer defense lawyers has filed writs and obtained the release of more than 1,800 of the evacuees...[Still] the attorneys [have] to litigate for many more weeks to secure the freedom of the hundreds still incarcerated on minor charges. [These thousands of cases are left to be litigated by a public defenders office of only nine lawyers. 75% of New Orleans' public defenders have been laid off, and the State's Governor, Kathleen Babineaux Blanco, plans to cut $500,000 from the state's public defender system. New Orleans' Chief Criminal Court Judge Calivin Johnson says the combination of understaffing and underfunding creates 'at least a serious question, if not prima facie evidence, that indigent defendants in Orleans Parish are not [receiving], and cannot receive, the effective assistance of counsel to which they are constitutionally entitled.']
Over the last two weeks, in hearings in Baton Rouge, Judge Johnson...ordered more than a hundred people released. But the Orleans Parish district attorney's office appealed; a state appellate court and then the state Supreme Court stayed the release order. Asst. Dist. Atty. Donna Andrieu asserted, among other things, that there was "just cause" for holding the detainees longer because Orleans Parish prosecutors, dislocated from their office, had not had sufficient time to make decisions on whether to charge various people...
In a related development, the American Civil Liberties Union filed papers in a Louisiana federal court Thursday that provided disturbing accounts about 45 men and women who were incarcerated in the Orleans Parish Prison when Katrina struck. 'It was like we were left to die. No water, no air, no food. We were left with deputies that were out of control,' said one woman, identified in court papers as "Inmate #19." She said the women eventually were abandoned by guards, left with nothing to eat or drink, and that many of them drank water out of trashcans. Another prisoner, identified as "Inmate #41," said he saw 'a few dead bodies, and [we] were told not to say anything or we were going to be like them.'...
Since the hurricane, some legislators, judges, attorneys and others have been holding meetings on the problem, but there is no imminent solution. 'In terms of indigent defense, the Legislature is doing absolutely nothing,' said Baton Rouge attorney James Boren, former president of the Louisiana Criminal Defense Lawyers Assn. Moreover, Boren said he was outraged that as soon as the Legislature convened in special session, lawmakers approved a bill that would shield from liability the state Department of Corrections and any local sheriff's department that held people arrested before Katrina longer than was warranted." [Mark Godsey]
Iowa Governor Disciplines Prison Staff Following Escapes
From MSNBC.com: (Johnston, Iowa--AP): "Gov. Tom Vilsack said he removed the warden of a prison where two inmates escaped last week by using a homemade grappling hook...Vilsack said seven prison employees now have been disciplined over the escape of Joseph Legendre, 27, and Martin Moon, 34. He blamed the escape on a significant breach of security and said there had been no head count in the prison section where the two men worked...The inmates used a rope fashioned from upholstery webbing and homemade grappling hook to scale a 30-foot wall at the prison in Fort Madison. Both men were recaptured late last week — one in Illinois and the other in Missouri."[Mark Godsey]
November 21, 2005
The Future of Criminal Justice Jurisprudence under the Roberts Court
From an Ohio State Law press release: "With criminal law issues occupying nearly half of the Supreme Court's docket, and with the modern criminal justice system being subject to new scrutiny, a critical question is whether the Roberts Court might radically reshape existing criminal justice jurisprudence. The just-published Fall 2005 issue of the Ohio State Journal of Criminal Law (OSJCL) provides a timely and thoughtful perspective on these issues in its symposium entitled “The Warren Court Criminal Justice Revolution: Reflections a Generation Later.”...Through a series of legendary decisions such as Gideon v. Wainwright and Miranda v. Arizona , the Warren Court shifted the law of criminal procedure in ways that have been described as a revolution.
The Fall 2005 issue of the Ohio State Journal of Criminal Law contains a retrospective on the Warren Court 's criminal justice legacy. In six articles by eminent criminal justice scholars, the authors examine the way the Warren Court changed, and didn't change, the law of criminal justice; how some of those changes have been rolled back by later Courts; and whether different and better paths were available for greater federal control of state criminal justice systems.
The articles in the OSJCL Fall 2005 issue provide important new perspectives on how a Justice Alito and the rest of the Roberts Court might re-examine the Supreme Court's always evolving criminal justice jurisprudence. To subscribe to the journal, see http://moritzlaw.osu.edu/osjcl/Subscribe.htm."
Questions? Contact: Professor Joshua Dressler, 614-688-3145, co-Managing Editor of the Ohio State Journal of Criminal Law or Professor George C. Thomas III, 973-353-5035, Guest Editor, "The Warren Court Criminal Justice Revolution: Reflections a Generation Later" [Mark Godsey]