Saturday, February 5, 2005
Someone has stolen 3.6 million nickels belonging to the Federal Reserve, perhaps the truck driver hauling them, perhaps someone else. How in heaven's name do you liquidate $180K in Nickels? Update: Here's the America's Most Wanted story. UPDATE: Miami-Dade police searching for a hydroponics lab noticed a cooler full of shiny new nickels; after searching with metal detectors they found 3 million nickels buried in the backyard. (They also found 88 marijuana plants, and it has not been determined if the missing truck driver has any connection to the property). I still want to know: What was the plan? Eat at vending machines three meals a day for the rest of your life? [Jack Chin]
Alexandra “Sasha” Natapoff writes: “I was raised in Cambridge, Massachusetts by professor parents. After studying philosophy as a Yale undergraduate, I headed for Washington, D.C., to save the world, where it took several years of public policy work and community organizing to figure out that democracy wasn’t that simple. Stanford Law School was a wonderful experience, in large part because it gave me the chance to start writing. I then went back to D.C. to clerk, first for Judge Paul Friedman in federal district court, and then for Judge David Tatel on the D.C. Circuit, after which I went to Baltimore on a fellowship from the Open Society Institute. I spent two years in low-income communities providing legal services and education, motivated in part by my selfish desire to hear firsthand what people living in rampant urban disfunction think about our legal system. That experience propelled me into the Federal Public Defenders Office where I worked for three years.
I started teaching last year at Loyola Law School, Los Angeles. As a scholar, my current focus is on the uncomfortable intersection of legal doctrine with the realities of the criminal system. For example, I have written about the legal institution of snitching and its caustic effects on high-crime communities in which snitching is common. I am now writing about the personal, dignitary, and democratic harms caused by the pervasive silencing of criminal defendants. I am also enormously enjoying kindergarten with my six-year old son, who, when I ask him too many questions about his day at school, likes to remind me that he has the right to remain silent."
Natapoff has authored the following publications: In a Missing Voice: The Silencing of Criminal Defendants (2004 Outstanding Paper Award from the AALS Criminal Justice Section) (manuscript); Snitching: The Institutional and Communal Consequences, 73 U. Cinn. L. Rev. _ (2005) (selected by 2004 Stanford/Yale Junior Faculty Forum); Madisonian Multiculturalism, 45 Am. U. L. Rev 751 (1996); Trouble in Paradise: The Dilemma of Interminority Group Conflict, 47 Stan. L. Rev. 1059 (1995) (winner Stephen M. Block Civil Liberties Award); Intersectionality and Equality for Deaf Children in Non-English Speaking Homes, 4 J. Law & Educ. 271 (1995); The Year of Living Dangerously: State Courts Expand the Right to Education, 92 Ed. Law Rep. 755 (1994).
Each Saturday, CrimProf Blog will spotlight on one of the 1500+ criminal justice professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community. Please email us suggestions for future CrimProf profiles, particularly new professors in the field.
During his State of the Union address on Wednesday, President Bush acknowledged the problems with wrongful convictions, stemming from inadequate DNA testing and incompetent lawyers handling capital cases. "In America,'' Bush said, "we must make doubly sure no person is held to account for a crime he or she did not commit, so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction.'' Last Fall, Congress passed a law proposing $350 million over the next five years to make DNA testing more accessible for death row prisoners and to fund improved legal training to public and private defense attorneys, prosecutors, and state judges who handle death penalty cases. But the law provided no funding. Under the plan Bush set forth in the State of the Union, in the next year $20 million ($50 million over 3 years) would be spent in lawyer training and $236 million ($1 billion over 5 years) for DNA testing. More from the AP... [Mark Godsey]
From the DPIC: "Justice Raoul Cantero, recently appointed to Florida's Supreme Court by Gov. Jeb Bush, criticized the quality of private lawyers handling the appeals of death row inmates, noting that some attorneys have botched cases, muddled and omitted key arguments, and generally performed 'the worst lawyering I've seen.' He also seriously questioned Governor Bush's effort to replace the state-run regional offices that handle death penalty appeals with private attorneys as a cost-cutting measure. To date, lawmakers have closed one of Florida's three Capital Collateral Regional Counsel offices. The state has registered 150 private lawyers to take over the cases formerly handled by that office, as well as to handle any overflow cases from the remaining two regional centers. Cantero stated that the minimal qualification standards for attorneys wishing to be listed on this registry have resulted in some of 'the worst briefs that I have read.' He emphasized that an attorney familiar with a few burglary trials does not have the skills to replace someone devoted to the highly specialized death row appeals process, which takes years to master. Cantero noted, 'I'm not sure we have enough quality lawyers out there that would be able to pick up the slack.... Some of the registry counsel have little or no experience in death penalty cases. They have not raised the right issues. Sometimes they raise too many issues and still haven't raised the right ones. In arguments, they're unable to respond to questions, or they don't know what the record shows. They don't have a real good understanding of death penalty cases.... For us to wade through the morass of baseless claims takes a lot of work for the justices and eventually leads to a lot of inefficiencies in the process. That takes a lot of time that we can be spending on civil cases, on other criminal cases, on important issues.' Governor Bush is seeking to close all three of the state's Capital Collateral Regional Counsel offices and to completely privatize appellate representation. Representative Joe Negron, a top-ranked Republican who supported closing the first regional center, stated that Cantero's remarks would 'carry a lot of weight' as lawmakers decide this spring whether to proceed with plans to close the remaining two offices or eliminate the privatization plan." [Mark Godsey]
In Britain, police have made it possible to report what they call "drink drivers" on the web. Officers will take the information and then search for the drivers; those less tech-savvy can report by hotline instead. [Jack Chin]
Friday, February 4, 2005
Reasonable Expectations of Privacy
The Fourth Circuit held this week in U.S. v. Stevenson, 04-4227, that a defendant did not have a reasonable expectation of privacy in an apartment rented in his name. In Stevenson, the defendant was taken into custody by the police prior to the unlawful search of his apartment. While in custody, the defendant, presumably expecting to be convicted and serve a long sentence, wrote a letter to his girlfriend saying that she can have everything in his apartment. As a result, the court found that he had abandoned his expectation of privacy in the apartment prior to the time the search occurred.
Public Safety Exception to Miranda
In the recent Eighth Circuit case of U.S. v. Luker, No. 04-1220, the police pulled the defendant over for DUI. The officers claimed that after they pulled the car over and saw who was behind the wheel, they feared for their safety because they knew the defendant had a history of meth use. After placing the defendant in custody and without providing Miranda warnings, the officers asked the defendant whether there was anything in his car "that shouldn't be there or that they should know about." The defendant then revealed that he had a firearm in his car, and was arrested and convicted of felon in possession. The decision drew a dissent from Judge Heaney, who argued that the evidence that the defendant was in fact a meth user was very thin and far too vague to raise a reasonable concern about public safety. The evidence amounted to the fact that the defendant had been seen hanging out with known meth users.
I have another concern with the decision. According to Quarles, "the questions must be necessary to secure the safety of officers or the public, and may not be designed solely to elicit testimonial evidence from a suspect." So, in Quarles, the officers' concern related to the location of a gun, and the question asked of the suspect was pointedly directed to that end. The question asked of the defendant in this case, however, was so broad that it seemed designed solely to elicit incriminating statements from the defendant. The officers appeared to be on a fishing expedition rather than concerned about a specific type of danger, and their question was the functional equivalent of: "Are you doing anything illegal right now?" [Mark Godsey]
CrimProf Elizabeth E. Joh of UC-Davis has posted Conceptualizing the Private Police on SSRN. The article is forthcoming in the Utah Law Review. Here's the abstract:
The war on terrorism has brought new
urgency to a subject that remains poorly understood: the private
police. The debate surrounding the creation of the Transportation
Security Administration and the Abu Ghraib prisoner abuse scandal share
a common question: what is the proper relationship between the state
and policing? This Article lays out the conceptual framework needed to
develop a response. There is much confusion about the private police -
much of which can be attributed to their inadequate conceptualization.
Is private policing a continuation of longstanding historical practice?
Is it related to the privatization of other government services? What
analytic approach is most suitable? The little scholarship on private
policing that exists offers interpretive approaches that are sometimes
inconsistent, or only partially congruent. Likewise, legal scholarship
has often assumed without discussion who the private police are before
proceeding to traditional doctrinal analysis. Even worse, when courts
talk about private policing, they make unstated assumptions about their
topic that are sometimes erroneous. Yet these disagreements and
misunderstandings remain unexamined. Private police now employ more
people and spend more dollars than our public police agencies do. What
is more, private police are increasingly referred to as front-line
soldiers in the war against terrorism. Yet when courts, commentators,
and lawmakers discuss the private police, they demonstrate only a
shallow or incomplete understanding of the nature and extent of the
work private police perform. To that end, in this Article I offer a
socio-legal approach to the problem: how should we think about private
policing? First, I examine and critique the dominant interpretive
perspectives on private policing. Second, based upon a pluralistic
understanding, I offer a typology of private policing that will help
guide the analysis of commentators, courts, and lawmakers. I then
suggest some ways in which the perspective that I have outlined can
enrich or, in some cases, correct some views of private policing.
To obtain the paper, click here. [Mark Godsey]
The Florida Department of Health Inspector General reported that potential criminal offenses by doctors discovered by the department were not turned over to prosecutors as required by law. As a result, the agency will review almost 25,000 cases dating to 1992 to determine if reports should be made. [Jack Chin]
A cop in Sweden robbed a bank and then assigned himself to the investigation. Naturally, he was unable to come up with any leads. Intead, he went on a spending spree, which raised suspicion and ultimately led to his downfall. Story here. [Mark Godsey]
Thursday, February 3, 2005
The Supreme Court of California held last week in People v. Howard, S108353, that the crime of "driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer" is not an "inherently dangerous" crime for purposes of the felony-murder rule. California determines whether a crime is inherently dangerous by looking at the elements in the abstract as opposed to how the crime was actually carried out in the case in question. The Court noted:
"Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193), arson of a motor
vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673; but see People v. Henderson (1977) 19 Cal.3d 86, 96, 137 Cal.Rptr. 1, 560 P.2d 1180), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354, 92 Cal.Rptr.2d 727; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169, 17 Cal.Rptr.3d 604, 95 P.3d 872 [quoting Clem with approval] ), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271, 74 Cal.Rptr.2d 7), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377, 68 Cal.Rptr.2d 61; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299, 280 Cal.Rptr. 584), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646, 3 Cal.Rptr.2d 343). Felonies that have been held not
inherently dangerous to life include practicing medicine without a
license under conditions creating a risk of great bodily harm, serious
physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96, 137 Cal.Rptr. 1, 560 P.2d 1180); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41, 98 Cal.Rptr. 33, 489 P.2d 1361); possession of a sawed-off shotgun (id. at pp. 41-43, 98 Cal.Rptr. 33, 489 P.2d 1361); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52, 98 Cal.Rptr. 44, 489 P.2d 1372); grand theft
(People v. Phillips, supra, 64 Cal.2d at pp. 580-583, 51 Cal.Rptr. 225, 414 P.2d 353); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458, 47 Cal.Rptr. 7, 406 P.2d 647); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238, 72 Cal.Rptr.2d 918); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099, 8 Cal.Rptr.2d 439); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229, 286 Cal.Rptr. 117)."
The ruling in Howard was based on the fact that California defines "driving with a willful or wanton disregard for the safety of persons or property," to include any flight from an officer during which the motorist commits three traffic violations that are assigned a "point count" under section 12810, or which results in "damage to property." Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds.(e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)). Since these violations are not inherently dangerous to human life, and since it is conceivable that someone could commit the crime in question by simply driving with a suspended license and failing to signal 100 feet before a stop sign, the crime in the abstract could not be considered inherently dangerous. Thus, the felony-murder rule was inapplicable. [Mark Godsey]
A woman in Australia was convicted of fraud after ripping off customers on e-bay by purporting to sell Duff Beer. Duff Beer, for those of you who don't watch the Simpsons, is Homer Simpsons favorite beer. The woman, of course, did not have any Duff Beer, as it doesn't exist, and simply pocketed the money she received from the gullible Simpsons' fans. The woman got caught because she pulled a Homer--she listed her correct name, address and e-mail address on her e-bay action forms. Story here. [Mark Godsey]
From MSNBC.com: "Some Americans might think of junk mail as cruel and unusual punishment, but a U.S. appeals court ruled Tuesday that prison officials could not stop bulk mail and catalogs from reaching prisoners. The case stems from a lawsuit against the Washington state Department of Corrections, which had barred its inmates from receiving such mailed materials. The 9th U.S. Circuit Court of Appeals upheld a lower-court ruling and rejected arguments that banning bulk mail made it easier to run a prison and reduced the risk of fire. 'Publishers have a First Amendment right to communicate with prisoners by mail, and inmates have a First Amendment right to receive this mail,' Arthur Alarcon wrote for the three-judge panel. The 'ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is therefore unconstitutional,' he added." Story here. Decision here. [Mark Godsey]
From Newsday: "Criminal charges against New Paltz Village Mayor Jason West for marrying gay couples were reinstated Wednesday by a judge who said public officials cannot pick and choose which laws to obey. Twenty-four misdemeanor counts were filed against West after he married a series of gay couples last Feb. 27 in the Hudson Valley college town of New Paltz. But the charges were dismissed last summer by a town court judge who said there were constitutional problems in banning same-sex marriages. Ruling on an appeal from prosecutors, Ulster County Court Judge J. Michael Bruhn said the criminal case against West was not about the constitutionality of gay marriage, but whether West lived up to his oath of office to uphold the law. Bruhn wrote in his decision that under the town court's logic, a mayor may "ignore and flout" a law he believes is unjust or unconstitutional. Ruling on an appeal from prosecutors, Ulster County Court Judge J. Michael Bruhn said the criminal case against West was not about the constitutionality of gay marriage, but whether West lived up to his oath of office to uphold the law. Bruhn wrote in his decision that under the town court's logic, a mayor may "ignore and flout" a law he believes is unjust or unconstitutional." Full story here. [Mark Godsey]
Erwin Chemerisky of Duke and Steven Henderson of Widener comment on the conflict between the Delaware legislature and supreme court over authority to interpret the law. Stan Goldman of Loyola comments on the Michael Jackson case; so too do Laurie Levenson of Loyola, Tom Lyon of USC, and Robert Pugsley of Southwestern. Wayne State CrimProf David Moran comments on criminal charges against a teenager who, with his girlfriend's consent, caused a miscarraige by assault. Case Western CrimProf Lewis Katz comments on the possible effect of Ohio's anti-gay marriage amendment on domestic violence prosecutions involving unmarried victims. Rory Little of Hastings comments on a three strikes prosecution in California. [Jack Chin]
Here's an article on how non-felons have been mistakenly identified as criminals by bad people who used their names or identification as aliases. Meanwhile, New Britain, CT police report that they do not check the claimed addresses of arestees, so the recorded (and published) addresses can be of third parties--this seems likely to add to the confusion. [Jack Chin]
A panel discussion will consider "U.S. v. Booker: The Supreme
Court and the Sentencing Guidelines" on Friday, February 4, 2005, at
2:30 p.m., in Room 127. The talk is free and open to the public.
Kate Stith, Lafayette S. Foster Professor of Law and co-author of Fear of Judging, which foreshadowed much of the current debate, will moderate the discussion. The panelists will include Michael Dreeben, deputy solicitor general of the United States with special responsibility for criminal matters; Nancy Gertner '71, a judge on the U.S. District Court for the District of Massachusetts, who co-teaches the Sentencing course at YLS; David Fein, head of Wiggin and Dana's White-Collar Defense Practice Group and a former federal prosecutor for the Southern District of New York; and Daniel Freed, clinical professor emeritus of law at YLS and editor of the Federal Sentencing Reporter. More details here. [Mark Godsey]
Wednesday, February 2, 2005
Two men who served 12 years for murder were exonerated on Monday based on DNA. This link also has the Chicago Tribune's package on flawed forensic evidence, and on the criminal justice system in Chicago, through the NY Newsday site. When the Tribune suggested the prosecuting attorney re-investigate the cases of a detective whose work led to over a dozen questionable confessions, including the confessions in this case, a spokesperson replied: "There's no reason to review every single case of a detective," Milan said after the hearing. "This detective has had a long career, a good career," which included getting a murder confession from a suspect who was in jail when the crime was committed. [Jack Chin]
NPR reports: "A federal judge says the U.S. government must provide detainees in Guantanamo Bay, Cuba, with a fair opportunity to challenge their incarceration. Judge Joyce Hens Green says Defense Department hearings do not satisfy last year's Supreme Court ruling on the matter. The ruling is a setback for the government, but the detainees may face a long legal battle before they get what they want." Obtain the written opinion and listen to NPR report here. [Mark Godsey]