Wednesday, February 16, 2005
Wisconsin CrimProf Keith Findley who works on that school's Innocence Project has an op-ed favoring taping of interrogations. A British columnist paid a settlement and apologized to a Conservative Member of Parliament and his wife; the columnist repeated false claims that the couple had committed a sexual assault. Eduardo Velasquez, imprisoned for a rape he did not commit, is the first to file a suit for compensation under a new Massachusetts law; if he gets the maximum award, it will amount to about $100 per day. Prime Minister Tony Blair apologized to the "Guildford Four" and the "Maguire 7", who were wrongfully imprisoned in 1974 for an IRA bombing and released 11 years later. In the news this week were charges against people falsely claiming to have been sexually assaulted in New York, Kentucky, Virginia and Masachusetts; a British woman who admitted she lied about her claim that her husband raped her avoided jail time when he pleaded for her release. [Jack Chin]
Tuesday, February 15, 2005
MSNBC.com reports: "A teenager who shot and killed his grandparents as they slept is “a shy, decent boy” who was led to kill by the antidepressant Zoloft, his attorney said as the boy went on trial." Story . . .<>
UPDATE: Jury rejects defense. Teen sentenced to 30 years. Story. . . [Mark Godsey]>
Monday, February 14, 2005
The City of Winnipeg is getting ready to try a new strategy to fight crime: public art. The idea is to install sculptures and other works of art in high crime neighborhoods to make the streets more appealing to law-abiding citizens and drive out the "punks and vandals." Story . . . [Mark Godsey]
GW CrimProf Orin Kerr has posted the above-titled article, to be published in the Mississippi Law Journal, on SSRN. Here's the abstract:
This Article contends that the legal
rules regulating the search warrant process must be revised in light of
the demands of digital evidence collection. Existing rules are premised
on the one-step process of traditional searches and seizures: the
police obtain a warrant to enter the place to be searched and retrieve
the property named in the warrant. Computer technologies tend to
bifurcate the process into two steps: the police first execute a
physical search to seize computer hardware, and then later execute a
second electronic search to obtain the data from the seized computer
storage device. The failure of law to account for the two-stage process
of computer searches and seizures has caused a great deal of doctrinal
confusion, and makes it difficult (if not impossible) for the law to
regulate the warrant process effectively. The Article concludes by
offering a series of proposed amendments to Rule 41 of the Federal
Rules of Criminal Procedure to update the warrant process for the era
of digital evidence.
To obtain the paper, click here. [Mark Godsey]
California: Killing Nonviable Fetus is Murder
An appellate court in California held last week in People v. Valdez, C036614, that the killing of a nonviable fetus constitutes murder under California law. The California legislature had included "fetuses" within its list of victims in its murder statute. The defendants argued, however, that because the fetus had a serious medical condition and would not have survived until birth, punishing the defendant for murder would violate the cruel and unusual punishment clause, and would be "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." The court responded: "As we have noted, our state's Legislature made a policy decision to protect fetal life in the same manner as the life of a human being, except where the mother's paramount privacy interests are at stake. In light of the state's legitimate interest in protecting fetal life, we cannot say that it is grossly disproportionate, or that it shocks the conscience or offends fundamental notions of human dignity, to punish as murder the unlawful killing of a fetus which, due to a physical or medical condition, may not otherwise survive until birth. In other words, construing California's murder statute to apply to the killing of "a non-survivable fetus" does not violate the cruel and/or unusual punishment clauses of the state and federal Constitutions."
Fourth Circuit: Avoiding Checkpoint in Evasive Manner Creates RS
The Fourth Circuit held in U.S. v. Smith, 04-4311, and here, that reasonable suspicion was created when a driver appeared to slam on his breaks and then pulled into a private driveway when approaching a driver's license checkpoint. The driver pulled only halfway up the long driveway and stopped, which made it appear to the officers that the driver was not intending to visit the home. The case provides a good summary of the law, and discusses numerous decisions from other circuits, on the issue of when avoiding a checkpoint can give rise to reasonable suspicion. [Mark Godsey]
WhiteCollarCrimeProf reports on an NACDL resolution urging Congress to gather facts before reforming the Sentencing Reform Act in the wake of Booker. At the meeting where the resolution was adopted, Judge Nancy Gertner and former NACDL president Irwin Schwartz discussed procedural changes that might follow Booker, including judges recording their reasons for departing, and defense lawyers writing proposed findings of fact and conclusions of law to explain particular sentences. CrimLaw, Item 7 has a link to a story suggesting that the smoking gun in the Michael Jackson case might turn into the bloody gloves of the new century: Maybe the victim's fingerprints on the porn magazine got there when the witness handled the exhibit when testifying before the grand jury, and an interesting case in the Virginia Supreme Court raising the question of whether a warrantless misdemeanor arrest illegal under state law requires application of the exclusionary rule. GritsForBreakfast has a BIG post on snitching. TalkLeft reports on a study showing declining public support for the death penalty. The ConfrontationBlog has an updated outline of post-Crawford cases. Crime and Federalism has an interesting post on the first Congress and crime. [Jack Chin]
Does it seem that people who shoot child molesters seem to be more likely than other offenders to be acquitted, not indicted or get a light sentence? Here's a case from Australia where the defendant was acquitted, a case from Kentucky where the grand jury refused to indict, a California case where the defendant served 3 years for manslaughter, a Maryland case where the defendant got home detention for a nonfatal but evidently premeditated shooting. On the other hand, here are some guys who got prison for branding the genitals of a molester. An Ohio woman who committed a breaking-and-entering in an unsuccessful search for her daughter's molester was caught after 23 years on the lam (she had been arrested in the 1990s, but gave a false name, and was released.) There are of course many examples of misguided vigilantes, including some who confused a "pediatrician" with a "pedophile." Here's an article from the Palm Beach Post about the difficulty of convicting people who claim to be crime victims, or that they were attacking criminal.
Doesn't this show that motive (as opposed to intent in the elemental sense) matters? Surely a punch in the face to a child molester should be punished differently than a punch meant to be the prelude to a rape or killing. [Jack Chin]
Although more than 6,000 police departments in the U.S. now use tasers, controversy around this alternative to lethal force continues to grow. Listen to NPR report here.
UPDATE: After a taser causes the death of a suspect in Chicago, the Chicago PD suspends distribution of new tasers. Shares of taser manufacturer drops 9%. Story here. [Mark Godsey]
Sunday, February 13, 2005
From the Alameda Times Star: "Even if he knew his classmates were going to commit a crime, a student photographer didn't break the law by watching and taking pictures, a legal expert said Friday. Omar Vega, a San Francisco State University student and Oakland Tribune photo intern, is in the thick of a First Amendment debate over his arrest on burglary charges this week. Vega and his lawyers say he was simply documenting the life of a freshman at San Francisco State when he took pictures of students breaking into a fellow student's car. The San Francisco District Attorney's Office, after an investigation by campus police, agreed to pursue charges against Vega. The office did not return phone calls seeking comment Friday. The 18-year-old Stockton native says he had no idea a crime would be committed Oct. 24, when someone in the dorm found a set of car keys and set out to find the car. But even if he did, taking photographs does not constitute a crime, said Terry Francke, general counsel for Californians Aware, a nonprofit that supports free and open government. Missing from the car were about 20 CDs and $15 in cash, the owner told police. It cost about $1,000 to change the locks and get new remote-controlled keys made. Vega posted his photos on a Web site, triggering an ethical debate and a criminal investigation by campus police who received phone calls and e-mails. Five of six people there that night are being charged. Vega, who was cuffed outside his journalism class Wednesday, was the first to be charged, said his lawyer, Emilia Mayorga of San Francisco. Flanked by Mayorga and his journalism professors, Vega held a news conference Friday to decry his treatment. 'We believe our student Omar Vega was not committing a crime, he was committing journalism,' Journalism Department Chairman John Burks said. His backers say Vega's arrest is part of a systematic attempt to block him from taking pictures on campus after he captured freshmen having oral sex and binge drinking. University spokeswoman Ellen Griffin declined to comment on any disciplinary action against a specific student.
California Establishes Procedure for Mentally Retarded Death Row Inmates to Challenge Their Death Sentences
From Law.com: "The California Supreme Court gave at least 30 of the state's death row inmates hope on Thursday by establishing post-conviction standards for deciding when executions should be set aside on the basis of mental retardation. The justices were particularly generous to borderline cases, refusing to name a particular IQ score as the cutoff mark for retardation." Full story here. Decision in In re Hawthorne, S116670, here. [Mark Godsey]
CrimProfs Paul Robinson of Penn and Markus Dubber of Buffalo have posted An Introduction to the Model Penal Code of the American Law Institute on SSRN. I bring this to the attention of crimprofs because it might be useful to suggest this short piece to crim law students who are struggling to grasp the big picture when it comes to the code. Article here. [Mark Godsey]
Oregon man was arrested on charges of solicitation to commit murder after his chatroom enticements of more than 20 women to simultaneously commit actual suicide on like on Valentines Day were reported to the police. Some of the women had children who, according to the chat room transcripts, were also to be killed. The police are holding out the possibility that it was a joke of some kind. [Jack Chin]