February 19, 2005
California Train Wreck Case-Update
We blogged this story earlier. Newspapers are now reporting that authorities believe the crash was not a suicide, but instead a deliberate effort to casue a "horrific tragedy," to get the attention of an ex-wife. Defense attorney Eric Chase denied the claims. [Jack Chin]
Colorado Prisoner Pays his Own Way Back to Prison
Colorado prisoner Ricky Lee Claycomb, serving time for robbery, was taken to Ohio to stand trail for rape. When he was acquitted, Ohio authorities told him he was free to do. When he explained that he was supposed to go back to Colorado, they told him that was his problem, so his mother sent him money for a bus ticket. "Bless Ricky's little heart" said a Colorado detective when he heard that Claycomb was returning on his own. [Jack Chin]
Leaked Michael Jackson Grand Jury Transcript
Available at The Smoking Gun, here. [Jack Chin]
Reinstatement of Death Penalty in New York Appears Unlikely
The DPIC has two stories on the possible reinstatement of the death penalty in New York. The first report here shows that a number of key legislators who favored the death penalty when it was first reinstated in 1995 now oppose it, and think that the ten-year experiment with capital punishment, now set to expire, will not be extended. The second report here describes a New York Times poll showing that 56% of New Yorkers are no longer in favor of the death penalty. [Mark Godsey]
Bush Budget Proposal Cuts Funding for Aspects of War on Drugs
NPR reports: "Many state and local drug enforcement officials are upset with President Bush's proposed budget. It would cut federal grants for state and local efforts in the war on drugs, ending most of the support for hundreds of anti-drug task forces in more than 40 states across the country." Listen to detailed NPR report by Greg Allen here. [Mark Godsey]
February 18, 2005
Golden Gate Students' Work Leads to DNA Exoneration UPDATED
Congratulations to Golden Gate Univeristy School of Law Supervising Attorney Janice Brickley and her students at the Northern California Innocence Project for a DNA exoneration in California http://www.msnbc.msn.com/id/6370107/ UPDATE: at a hearing last week, the students and attorney Susan Rutberg obtained a formal finding of innocence, whic clears the way for the individual to seek compensation. [Jack Chin]
Mistaken Release of Prisoners
More mistaken releases; murder suspect in Louisiana, convicted murder in New Jersey, drug suspect in California; a fugitive in Alabama. In Pennsylvania, 22 year old Brian McDonald was transferred from prison to an unlocked rehab center instead of 50 year old Dennis McDonald; Brian split. The third story down is about a mistaken NON-release of someone in jail ordered discharged but detained anyway. Don't forget, if a prisoner is released by mistake before serving their full sentence, as in the case of Diana Ross, the prisoner is entitled to credit against their sentence. See Commonwealth v. West (Pa. Superior Ct. 2005). [Jack Chin]
New Article Spotlight: Early Booker Article
Paul Kirgis of St. Johns appears to have one of the first Booker articles already accepted for publication. He has just posted The Right to a Jury Decision on Sentencing Facts After Booker: What the Seventh Amendment Can Teach the Sixth on SSRN. Here's the abstract:
When the Supreme Court invalidated a
Washington state sentencing scheme in its 2004 decision in Blakely v.
Washington, both courts and commentators assumed that the newly
invigorated Sixth Amendment jury right would topple the Federal
Sentencing Guidelines as well. To address those concerns, the Supreme
Court moved quickly to hear a pair of appeals directly raising the
constitutionality of the Guidelines. The resulting decision, United
States v. Booker, with its two majority opinions, seems to offer
something to both jury-right advocates and Guidelines advocates. The
first Booker majority held that the Sixth Amendment applies to judicial
decision-making under the Guidelines. But the second majority held that
any constitutional infirmity could be expunged by simply making the
Guidelines discretionary instead of mandatory. The apparent principle
resulting from the case is that if a judge finds facts increasing a
defendant's sentence beyond the otherwise allowable maximum because
Congress required her to find those facts, the sentence is
unconstitutional. On the other hand, if a judge finds facts increasing
a defendant's sentence beyond the otherwise allowable maximum because
Congress suggested that she find those facts, the sentence is perfectly
valid. In other words, at least until Congress acts, judges may
continue to decide exactly the same factual issues they have always
decided. Any victory for jury-right advocates is, then, a pyrrhic one.
Booker fails on its face as a matter of logic. Its constitutional remedy negates the very right the case purports to protect. But it also fails for another pragmatic reason. By validating judicial power to find facts pertinent to sentencing, Booker entrenches an unjustifiable disparity between the scope of the jury rights in civil and criminal cases. The Supreme Court has recently reaffirmed that, where punitive damages are at issue in a civil case, the jury should make any factual determinations on which the award of punitive damages turns. In contrast, Booker will permit judges acting under the now-advisory Federal Sentencing Guidelines to determine exactly the same factual matters, such as the degree of harm to the victim, as a predicate for imposing a criminal sentence. This article explores that anomaly and argues that the gap between the scope of the civil jury right and the scope of the criminal jury right should be closed by requiring jury decisions on all fact questions, regardless of when those questions arise in a proceeding. The article offers a definition of "fact questions" for criminal cases and then discusses some of practical issues that this approach would raise.
The article has been accepted by the Georgia Law Review, but is not yet on SSRN, so if you want a draft, you'll have to speak to the author. Contact info here. [Mark Godsey]
LA Police Change Shooting Policy
On February 16, the LA Police Commission approved a revised policy as to when officers may shoot at moving vehicles. The revision was approved only 10 days after an LA police officer fired 10 shots and killed a 13 year-old boy, Devin Brown, who backed a stolen vehicle into a police car and led police on a chase. Although the policy was already under way for a year when Brown was killed, his death hastened the revision and approval process. The new policy limits officers so that they cannot shoot at moving vehicles unless someone is threatened with a deadly force other than the vehicle itself. In recent years, Boston, Cincinnati, and Detroit adopted similar policies, while New York City has followed an identical policy since 1972. More... [Mark Godsey]
February 17, 2005
Bush Nominates John Negroponte as the First National Intelligence Director
Yesterday, President Bush nominated Iraq Amabassador John Negroponte to serve as the first Director of National Intelligence, a position created by the Intelligence Reform Bill. If confirmed, Negroponte will work coordinate the work of all 15 U.S. intelligence agencies, serve as Bush's primary briefer, and hold a position above the CIA director. According to MSNBC.com's report, "a leading congressional Democrat with insight into intelligence matters told NBC (on the condition of anonymity) that Negroponte will have strong support for confirmation...(but) Negroponte's biggest problem in the new post will be preserving his intelligence prerogatives from Pentagon encroachments. Defense Secretary Donald Rumsfeld had initially opposed creating the intelligence post and only endorsed it after it was clear that it was going to happen." The full report from MSNBC.com is here. [Mark Godsey]
In the News
Current law in Maryland provides a stiffer penalty for assaulting a police dog than for assaulting an actual cop. The legislature is moving to put cops on the same footing as their dogs. Story here.
Given the outbreak in recent years of overzealous parents assaulting those who referee their children's sports, the legislature in Indiana is seeking to enhance the penalties for assault when the victim wears stripes and carries a whistle. Story here. [Mark Godsey]
Interesting TalkLeft Posts
Talkleft has a post here with new information about the controversy over stunguns, which have caused 80 deaths in recent years and are starting to lose support from some police departments. Here is a post that discusses a new report on the number of disenfranchised felons in this country. [Mark Godsey]
DC Circuit Orders Reporters to Disclose Sources or Face Jail
From MSNBC.com: "A federal appeals court on Tuesday upheld a ruling against two reporters who could go to jail for refusing to divulge their sources to investigators probing the leak of an undercover CIA officer’s name to the media. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with prosecutors in their attempt to compel Time magazine’s Matthew Cooper and The New York Times’ Judith Miller to testify before a federal grand jury about their confidential sources. 'We agree with the District Court that there is no First Amendment privilege protecting the information sought,' Judge David B. Sentelle said in the ruling, which was unanimous. Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse Tuesday’s ruling. 'Today’s decision strikes a heavy blow against the public’s right to be informed about its government,' Abrams said in a statement." Story here. Listen to NPR story here. [Mark Godsey]
Pennsylvania Minister Takes Guns off the Street
An inner-city Allentown minister offers an unusual service to his parishoners: He takes their guns and turns them over to the police without disclosing their identities. ''I don't want to be viewed as a servant of the police or a snitch,'' he said. ''I'm a sanctuary.'' He's also accepted drugs, which he destroys. The neighborhood is plagued with crime and gun violence. [Jack Chin]
No one is Above Suspicion: Identity Theft Victims Usually Know Perpetrator
A recent report states that approximately 50 percent of identity theft victims are ripped off by a friend, neighbor or family member rather than a stranger, and the usual method is with paper documents rather than a computer. Information here; report here.
February 16, 2005
Gambino Crime Family 101
A law school in Italy has added a new course to its criminal law curriculum: the Mafia. According to Law.Com, the class will "look at the roots of organized crime in Italy and follow its development under Fascist rule, in postwar years and up until the present day. It explains the differences between various syndicates in the country -- including the Sicilian Mafia and the Calabrian 'ndrangheta, which investigators say is becoming the most powerful crime organization in Italy -- and examines how they raise money."
Will the class have any problems with enrollment? Fuggetaboutit...more than 500 students have already signed up.
For more, click here.
Chertoff Confirmed as Director of Homeland Security
Story here. [Mark Godsey]
2005 National Innocence Conference
The 2005 National Innocence Conference, featuring CrimProfs Barry Scheck, Peter Neufeld and the gang, will be held from
Friday, April 1-Sunday, April 3 at the David A. Clarke School of Law at the
University of the District of Columbia in the Van Ness section of
Washington. The conference will
address a number of issues related to wrongful convictions, ranging from
scholarship in the area to litigation and investigation strategies in handling
post-conviction claims of innocence. Registration here. [Mark Godsey]
Old Man Walking
The DPIC has a post here about the growing number of elderly persons on death row in America. The number of death row inmates over 60 years of age has tripled in the last decade, and now stands at 110. [Mark Godsey]
Prisoner Sues Lawyers for Allowing "Wrongful Conviction"
Pennsylvania millionaire Joel Sandler, convicted of solicitation of murder--and not (yet) exonerated--sued his lawyers for allowing his "wrongful conviction." Not only did they blow trial, they also lost on appeal. In a questionable legal move, he also lodged a false advertising claim against the "hit men" he hired to kill his wife, who were, in fact, undercover cops. (OK, this is a joke).
As it turns out, Pennsylvania follows the usual rule that a demonstration of innocence is required to pursue a malpractice claim in a criminal case. Bailey v. Tucker, 621 A.2d 108 (Pa. 1993). As Mr. Sandler is still inside, collateral estoppel would seem to bar the claim. [Jack Chin]