Saturday, February 26, 2005
At its February, 2005 meeting the ABA House of Delegates adopted resolutions proposed by the ABA Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process on federal sentencing, ineffective defense counsel, informants and compensation for innocents. In 2004, the ABA passed resolutions on eyewitness identification, investigation procedures, crime labs, standards for prosecutors and false confessions, approved in 2004. The New York Court of Appeals (at p. 13 n.5) recently cited the ABA policy supporting recording of interrogations. [Jack Chin]
Guyora Binder of Buffalo has published a new article on the widely misunderstood origin of the American felony murder rule in the Stanford Law Review. The following is an excerpt from the introduction:
Felony murder liability is one of the most persistently and widely criticized features of American criminal law. Much of the criticism is directed at a sweeping doctrine holding felons strictly liable for any death resulting from any felony. Many commentators and courts assert or assume that this harsh doctrine long prevailed as the common law rule in England, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision.
Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. All of these texts imply that this harsh common law rule was incorporated into American law at independence, where it persists to this day, except where mitigated by judicial or legislative reforms. Similar accounts of the development of American felony murder rules appear in other treatises and texts, in court opinions, in scholarly articles, and in law review comments. Based on such accounts, critics attack modern rules as "anachronistic" legacies of a morally regressive age.
Yet none of these accounts manages to identify when this supposed common law rule of strict liability for all deaths resulting from felonies became the law in England. None identifies a single case in which it was applied in England before American independence. LaFave, for example, explains that as felonies proliferated, the English felony murder rule became broader in scope and harsher in effect, until it was finally thought necessary to restrict it. Yet he does not identify any examples of harsh applications of the rule. Indeed, he does not demonstrate that the rule was ever applied before it was thus "restricted." These accounts are equally hazy about early American law. None of them documents application of such a rule in colonial America, or in the early American republic. None of them troubles to show that such a rule ever led to the conviction of felons who had caused death truly accidentally, that is, without culpability.
In short, there is something suspicious about our received account of the origins of American felony murder rules. This Article vindicates such suspicion and exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules in order to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. [Mark Godsey]
Friday, February 25, 2005
CNN.com reports: "The BTK serial killer investigation in Kansas is being used as a teaching tool in college criminal justice courses around the country. The killer known as BTK -- which stands for 'Bind, Torture, Kill' -- has been linked to eight unsolved killings in Wichita from 1974 through 1986. BTK resurfaced last March with letters to Wichita media and police. Police have collected more than 4,000 DNA swabs in an effort to find the killer. 'It's a very compelling case,' said Volkan Topalli, an assistant professor in the criminal justice department at Georgia State University in Atlanta. 'There's a lot of material to work with.' Topalli said he will touch on the case next semester during the serial-murder portion of his course on aggression and violence. At Nebraska Wesleyan University in Lincoln, students in a master's-level forensics class are tackling the case much in the way that Wichita authorities have been investigating it since it first surfaced. Graduate student Jackie Hoehner is trying to recreate the crime scene and layout of the home where the serial killer struck first in 1974, strangling four members of the Otero family. 'It is extra exciting because of the way he has resurfaced,' she said. Hoehner said one of the key mysteries is what happened to BTK during all the years he was not communicating publicly. Her theory: He moved away, then returned. Jeri Myers, a forensic science coordinator at Nebraska Wesleyan, said her students treat the BTK case as if they were professionals solving the mystery. She said her students learn what they can about the initial investigation, then analyze communications and look for similarities to create a suspect profile." Story . . . [Mark Godsey]
From Law.com: "Tuesday's endorsement of the attorney-client privilege for government officials by the 2nd U.S. Circuit Court of Appeals may be a strong candidate for U.S. Supreme Court review. By agreeing that legal counsel for former Connecticut Governor John Rowland could assert the privilege applied to conversations about a federal investigation into quid pro quos for gifts the governor received, the panel admittedly staked out a position it said was in conflict with one other federal appeals court and 'in sharp tension' with decisions in two other circuits. Unlike other circuits, including the D.C. Circuit when it ordered Deputy White House Counsel Bruce Lindsey to testify about former President Bill Clinton's relationship with Monica Lewinsky, the 2nd Circuit in United States v. John Doe, 04-2287-cv, said that, if anything, 'the traditional rationale for the privilege applies with special force in the government context.' 'It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice,' Chief Judge John M. Walker Jr. said. 'Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business.' Connecticut District Court Judge Robert N. Chatigny had ordered Anne C. George, former chief legal counsel to the Office of the Governor, to answer questions before a grand jury about her conversations with Rowland and his staff concerning the federal probe. The scandal ended last year with the resignation of Rowland and his entry of a guilty plea on Dec. 23 to one count of conspiracy to steal honest service. The 2nd Circuit reversed Chatigny after hearing an expedited appeal in August, finding that George would not have to testify. A panel of Judges Walker, Dennis Jacobs and Pierre Leval released a 20-page opinion on Tuesday explaining their rationale." Full story here. [Mark Godsey]
CrimProf Steven Drizin, a leading authority on police interrogations, coerced confessions and the juvenile death penalty, has beeen named legal director of the Center on Wrongful Convictions, part of the Bluhm Legal Clinic at Northwestern University School of Law. Drizin, clinical professor of law at Northwestern and assistant director of the Bluhm clinic, succeeds Professor Lawrence C. Marshall as the center's legal director. Press release here. [Mark Godsey]
Thursday, February 24, 2005
A Mississippi officer was arrested in a sting operation after accepting money to release an undercover officer he had stopped for a traffic offense without charges. Members of the community said the arrested officer had a reputation for stopping latinos and letting them go for a fee. Story here. [Jack Chin]
Hofstra Law School will be looking for visitors for the 2005-06 AY. Possible areas include Bankruptcy and Commercial Law, Civil Procedure, Con Law, Contracts, Wills Trusts & Estates, Federal Income Tax, and Criminal Law.
Marshall E. Tracht
Vice Dean and Professor of Law
Hofstra Law School
121 Hofstra University
Hempstead, NY 11549
A recent wave of sexual assaults in Denver was met with a request that citizens phone in tips to a crime hotline. However, busy officers turned the ringer off and let them go to voicemail, which quickly filled up. The ignored tips were as much as 4 weeks old by the time that they were collected. Meanwhile, in Ohio, jail inmates are being urged to submit tips to the hotline, in exchange for cash prizes. [Jack Chin]
Wednesday, February 23, 2005
CrimProf Marjorie Cohn of Thomas Jefferson, executive vice president of the National Lawyers Guild, offers some views here on the prosecution and conviction of criminal defense attorney Lynne Stewart. Here are some contrasting perspectives from Andy McCarthy, a former AUSA in Manhattan who prosecuted terrorism cases and now writes for the National Review. [Mark Godsey]
A few months ago we reported here on new brainscan technology that some experts assert will replace polygraphs and voice stress in detecting deception--with a much higher rate of accuracy. Now Prof Charles Keckler of George Mason has posted an article on SSRN about the uses of, and possible admissibility of, this new neuroimaging technology. Article available here. [Mark Godsey]
In the wake of the Scott Peterson trial, the Kansas legislature is considering a bill that would make killing a fetus a crime in addition to the crime against the mother. Thirty states, including California, currently have such laws on the books. Pro-choice advocates in Kansas oppose the measure. Details . . . [Mark Godsey]
Here's a story about a man in Scotland who was arrested on animal cruelty charges for biting is seeing-eye dog in the middle of the street. "An eyewitness said they saw the man dragging the eight-year-old bitch across the access road at Meadowbank Retail Park before biting its head and kicking the dog’s body. The sickened passer-by immediately contacted Lothians and Borders Police." Here's one about a Florida man who arrested for biting his dog after it defacated in the house. Apparently, the man claimed when arrested that he routinely bit his dog reasoning that since dogs bite, it's a punishment they can understand. [Mark Godsey]
From BNA.com: "The U.S. Supreme Court on February 23rd decided one case related to the criminal justice system. In Johnson v. California, No. 03-636, the court ruled that the proper standard of review for an equal protection challenge to a California corrections department policy of racially segregating prisoners for up to 60 days when they enter a new prison is "strict scrutiny." The court declined to apply the deferential standard of Turner v. Safley, under which a prison policy that burdens inmates' fundamental rights may be upheld if it is rationally related to legitimate penological goals. It remanded the case to the lower courts for an application of the strict scrutiny standard." Decision here. More on the case from Crime & Federalism here. [Mark Godsey]
Who: Don Stemen and Andres Rengifo of the Vera Institute of Justice
What: National Institute of Justice (NIJ) Research in Progress Seminar
Where: 810 Seventh Street N.W., Third Floor, Washington, DC
When: March 7, 2-3:30 p.m.
RSVP: Attendees outside the Office of Justice Programs must e-mail an RSVP by March 2 with name and affiliation to Lani.Gleaves@usdoj.gov.
Over the past 30 years, State sentencing policies have changed dramatically and State incarceration rates in the United States have increased 324 percent. As States struggle to balance public safety with the need to curtail growth in prison populations, many policymakers seek a better understanding of those factors affecting incarceration rates, particularly the impact of sentencing and corrections policies.
Vera Institute of Justice researchers Don Stemen and Andres Rengifo are conducting a comprehensive survey of State-level sentencing and corrections policies implemented between 1975 and 2002 and assessing the ways in which various policies affected State prison populations during that period.
The researchers will discuss their NIJ-funded study and its early implications March 7 as part of the NIJ Research in Progress Seminar Series. Criminal justice professionals, researchers, and students are invited to bring questions and inform colleagues about this free event.
For more information on the research, please visit: http://www.vera.org/project/project1_1.asp?section_id=3&project_id=57
NIJ is the research, development, and evaluation agency of the U.S. Department of Justice and is dedicated to researching crime control and justice issues. For more information on NIJ, please visit http://www.ojp.usdoj.gov/nij
The Supreme Court granted cert. yesterday in Gonzales v. Oregon, in which the federal government has challenged Oregon's "Death with Dignity" law. The law gives Oregon doctors the authority to prescribe lethal substances to mentally competent, terminally ill patients who have less than six months to live. Since it took effect in 1998, 171 Oregonians have committed suicide under the law. Although the federal district court and Ninth Circuit have upheld the law, Ashcroft challenged it last year, arguing that it violates federal criminal narcotics laws. More . . . [Mark Godsey]
A Pennsylvania mine operator who failed to notify homeowners before digging under their homes was criminally charged. Of course, coal mines have a constitutional right to dig under residential areas if they have mineral rights, even if that might cause homes to colapse, but Pennsylvania law requires them to give notice. [Jack Chin]
The Masachusetts Lt. Governor proposed to require those violating domestic violence restraining orders to be monitored by GPS devices. If the violator entered a restricted area, police would be notified. Story here. [Jack Chin]