March 5, 2005
Some Useful Links
Students Plan to Violate Zany Laws
Two British college students have come up for a unique theme for their American holiday: They are going to violate absurd laws in every state they pass through, including California's prohibition on riding a bicycle in a swimming pool, and Utah's ban on whale hunting. In defense of America, it looks like many of the laws cited are in fact local ordinances. [Jack Chin]
Judge Lefkow's Case: UPDATED
A $50K reward is being offered for information about the murder of U.S. District Judge Lefkow's husband and mother. Sketches of two suspects have been released by the Chicago Police Department and are available in MSNBC.com's story. Although law enforcement is focusing on white supremacist groups, jailed white supremacist Michael Hale, awaiting sentencing by another judge for threatening Judge Lefkow's life, has denied any involvement in the murders, and in a statement from Hale, released by his mother, he said, "There is no way that any supporter of mine could commit such a heinous crime...I totally condemn it and I want the perpetrator caught and prosecuted...I only hope they sincerely wish to apprehend the animal instead of railroading the innocent." Hale’s father, Russell Hale, who is a retired East Peoria police officer Russell Hale, said his son realizes that "it’s going to bode terribly bad for him if they don’t find out who did this." MSNBC.com reports: "Jail officials moved Hale this week from a cell with a radio and legal materials he used while serving as his own attorney to a cell with nothing but a bed, sink and toilet, his father said. He said jail officials gave no reason for the move." In the meantime, Judge Lefkow is showing tremendous strength and courage. She and her four daughters are living in an undisclosed location under 24-hour police protection, and despite this tragedy, Judge Lefkow fully intends to return to the bench. "I think we (judges) all sort of go into this thinking it’s a possibility, but you don’t think it’s going to happen to you because it’s so unthinkable," but, "Nobody is going to intimidate me off my duty," said Lefkow in an interview. More... [Mark Godsey]
SD Criminal Code Revision Approved
Story here. Anyone familiar with the particulars is invited to write in. [Jack Chin]
March 4, 2005
Pierced Tongue Defense to DUI, Denied
The Indiana Supreme Court ruled 4-0 that having a pierced tongue does not automatically interfere with breathalyzer test results. Indiana state law states that "no foreign substance can be placed in a person's mouth during the 20 minutes before a breath test is administered because it might skew the results of the test." But Brenna Guy, who was pulled over for driving down the wrong side of a downtown Indianapolis street and challenged the results of her breath test due to her tongue stud, had her tongue pierced long before 20 minutes prior to the test. The Court found that because her piercing was in no way new, the metal stud was no longer a "foreign substance" to her mouth that could skew test results. More... [Mark Godsey]
Breathalyzers Becoming Part of the School Day
Just a few years ago, using breathalyzers at extracurricular activities like proms, pep rallies, and sporting events was hotly debated and resisted as an invasion of students' privacy. Eventually, these sobriety tests were accepted as necessary to ensure that students weren't smuggling drugs and alcohol into school-sponsored events or attending these events while intoxicated. Now, some school districts, ranging from Indiana to Connecticut and New York, are beginning to employ breathalyzers as part of the ordinary school day. School officials say that they have a duty to prevent drug and alcohol abuse and to ensure that students aren't showing up to class intoxicated. The New York Times reports that manufacturers of breathalyzers have sold thousands of devices to schools, so it's impossible to calculate how many school districts are beginning to use breathalyzers as a typical school practice, but the East Hampton School District on the East End of Long Island is one of these districts. "Any student suspected of being drunk in class would be tested by a trained staff member, and not a police officer," board officials said. Results showing alcohol consumption would mean suspension. Refusing to take a test would be seen as an admission of guilt." Civil rights lawyers are concerned that the tests will unfairly stigmatize students who just act goofy or don't abide by the norms. Following the same tune, East Hampton citizens have overflowed the local newspapers with op-eds calling the policy "heavy-handed." More from the New York Times... [Mark Godsey]
Attorney hires Jurors as Jury Consultants
"Who better than the jurors who deadlocked in the first trial to advise you on strategy for the retrial," was the evident conclusion of Orange County defense attorney Joseph Cavallo. Chicago Kent LawProf Nancy Marder said she'd never heard of another such incident. Cavallo's client is a 19-year old charged with participation in a gang rape. [Jack Chin]
Booker Symposium Contributions Wanted
The McGeorge Law Review is pleased to announce its 2005/2006 symposium topic. This year's symposium will explore Federal Sentencing Guidelines in a Post-Booker world. The McGeorge Law Review is now soliciting articles to be published in early 2006.
The recent Supreme Court decision in U.S. v. Booker invalidated the Federal Sentencing Guidelines as a mandatory sentencing system concluding that the existing scheme violated a defendant's Sixth Amendment rights. It therefore determined that the Sixth Amendment prohibits the enhancement of sentences based on facts found independently by the district court under a preponderance of the evidence standard. Thus, in order to comply with the Sixth Amendment today, a defendant can only be sentenced under an advisory guidelines scheme.
The purpose of this symposium is to consider what a post-Booker world will or should look like. Although prospective authors are encouraged to address any relevant issue, possible issues to address are:
-How does Booker reflect on separation of power issues? Did the original guidelines demonstrate a distrust of the judiciary?
-Some members of Congress have expressed dissatisfaction with Booker because the case leaves discretion with judges. Efforts at overruling Booker (e.g., by making sentences mandatory) may reflect distrust of the judiciary. Are there separation of powers problems in such legislation? Even if not,
does the hostility towards Booker demonstrate an unhealthy bias against federal judges? -Are there retroactivity issues? Or does Booker save the day? -Prosecutorial discretion - What is the impact on prosecutors as opposed to judges?
-Discussion of discretionary sentencing considerations. What are or should be relevant factors in sentencing? -Will this cause a disparate impact on race/class/gender? -What will the impact be on juvenile offenders? -Will there be an impact in death penalty cases? -Who should make sentencing decisions? Sentencing varies depending on whether the defendant chooses a bench or jury trial or went to trial at all. -What is the impact on California's Three Strikes Law? -Blakely waivers - Are they a good idea? -Will Booker endure? Is it only temporary or here to stay?
The publication is scheduled for the March 2006 issue of the McGeorge Law Review. We are inviting those interested to commit to contributing an article on one of the above topics or come up with one on their own. To get a variety of perspectives, we will also accept contributions from more than one author on the same topic if differing views are presented.
Articles are not due until December 1, 2005. If you are interested in making a contribution, please contact Jennifer Fordyce, Chief Symposium Editor, at the information below. Consideration will be given to early expressions of interest in a given topic.
If you know someone who may be interested in making a contribution, please forward this message.
Thank you for your time and consideration.
Chief Symposium Editor
McGeorge Law Review
3200 Fifth Avenue
Sacramento, CA 95817
Phone: (916) 739-7036
England Creates "Witness Care Unit" to Help Crime Witnesses
Three of England's criminal justice services--the Criminal Prosecution Service (CPS), the Witness Service, and the Avon and Somerset police--have joined forces to create the Witness Care Unit ("WCU"), a new service to help and encourage crime witnesses to give evidence in court. The WCU's creators established the unit after concluding that crime witnesses in England have been undersupported and left uninformed about their roles in the criminal justice system, as well as how the criminal justice system works. According to a spokesman for the CPS, this lack of witness-information and support led to witnesses not showing up in court, backlogs, and even failed prosecutions. The WCU will provide crime witnesses with a "care officer" to keep them informed and updated about the case and to provide services such as transportation, childcare, or other basic services that would prevent a witness from showing up to court. More from BBC News... [Mark Godsey]
March 3, 2005
Deportion for Denying Holocaust
A resident of Canada, held without charge for two years under that country's security laws, was ordered deported last week to face charges in Germany of holocaust denial. The deportee is the author of The Hitler We Loved and Why. [Jack Chin]
New Article Spotlight: Booker Essay
Roger Craig Green of Temple has posted The Untimely Death (and Rebirth?) of the Federal Sentencing Guidelines on SSRN, to be published soon in the Georgetown Law Journal. Here's the abstract:
This essay analyzes the Supreme Court's
recent decisions concerning the Federal Sentencing Guidelines'
constitutionality. I argue that the application of recent 6th Amendment
jurisprudence to nonstatutory sentencing rules was a legal error, and
one that may carry important political consequences. Especially
combined with the Court's remedial decision - to render the Guidelines
advisory and require reasonableness review by the courts of appeals - I
suggest that the Guidelines Cases may yield an interbranch struggle
with Congress over sentencing policy that the Court is not equipped to
To obtain a copy of the article, click here. [Mark Godsey]
Local, State, & Federal Police Charged for Drug Ring in Cancun
Prosecutors are charging 40 people, including local, state, and federal police in Cancun for either running a drug ring or aiding the murder of fellow law enforcement officers. 25 police officers and 2 civilians have been arrested and authorities are still searching for the other 13 individuals charged. Among those charged include the head of the Attorney General's headquarters in Cancun and the former-head of the Federal Agency of Investigation (FAI) units in Quintana Roo (where Cancun is located). The FAI in Mexico is the equivalent of the FBI. These charges and arrests come in the wake of efforts to bust Mexico's largest police-protection racket. In November 2004, 3 federal agents were shot dead by the Zetas, a Mexican gang of drug hitmen. The hitmen were looking for money and cocaine allegedly stolen by police who staged an illegal November raid on a Cancun house. More... [Mark Godsey]
Panel Rejects Houston Police Department's Crime Lab Accreditation
The Houston Police Department ("HPD") was trying to gain accreditation by the end of February for all divisions of its crime lab except the still-closed DNA division, but a national panel denied the lab of national certification. (The divisions the HPD sought to have accredited were the biology, toxicology, controlled substances, firearms and document-verification divisions. The DNA division has been closed since 2002 for evidence-contamination and incompetent training). The American Society of Crime Laboratory Directors ("ASCLD") met with the HPD crime lab director Irma Rios, and was told that auditors found that the lab did not practice proper chain-of-custody recording procedures to ensure the integrity of evidence. ASCLD's executive director Ralph Keaton wouldn't reveal the lab's specific flaws, but did report that the ASCLD requires "a documented, unbroken chain of custody of all evidence in the laboratory...(including) a documented record, either hard copy or electronic, of all person-to-person and person-to-places transfers at the time of the transfer," and the HPD's lab fell short of that standard. The HPD will reapply in 90 days, but in the meantime, state legislatures are doubtful of the HPD's ability to run its own lab. "It's two years later and they still can't get accredited," said Texas State Rep. Kevin Bailey (D-Houston). "You don't see any real evidence that they're making a whole lot of progress." On March 1, Bailey and Robert Talton (R-Pasadena) filed a bill to establish regional DNA crime labs to be overseen by the Texas Department of Public Safety, rather than police departments. More from the HoustonChronicle.com... [Mark Godsey]
Attack on North Carolina Student Ruled Hate Crime
Story about the gay bashing here. [Jack Chin]
March 2, 2005
Robber Confesses on the Radio; Is Arrested
A Chicago radio station has a feature where listeners are invited to call and confess something they did wrong; I assume usually the calls involve kissing an attractive stranger even though you are going steady or taking that can of Coke from the office refigerator knowing full well it belongs to someone else. However, this genius who had robbed a bank and gotten away clean decided to call the show, and describe the crime and how it was carried out (identifying of course the inside help). Now, he will have to wait in line to use the phone. [Jack Chin]
Detective Convicted of Murder Loses Bid for New Trial
A former Wisconsin detective sought a new trial based in part on the fact that the person who prosecuted the case was taking bribes and has since been sent to prison. The goverment hired an independent investigator to examine the case who said the prosecutor's corruption did not affect the outcome of the case. Report here. [Jack Chin]
Blog Buzz on Roper
The Berman Blog has a good post on Roper, with plenty of links to other blog so you can get the full perspective of what the blogging world is saying about the case. Here. [Mark Godsey]
U.S. District Judge Lefkow Finds Her Husband and Mother Slain in her Chicago Home
U.S. District Judge Joan H. Lefkow of Chicago came home to tragically find her husband Michael Lefkow, a 64 year-old private practitioner in employment law, and Donna Grace Humphrey, her 90 year-old mother visiting from Denver, both fatally shot in the head. Judge Lefkow had been the target of death threats from Michael Hale, a white supremacist whom Lefkow held in contempt of court. Judge Lefkow and her husband increased security at their home because of these threats, but after he was convicted in April 2004 for soliciting Judge Lefkow's death, they stopped some of these measures. As they begin their investigation, Chicago police are not necessarily connecting these murders to Hale, who is being held at the Metropolitan Correctional Center while awaiting sentencing on his conviction. Former Attorney General Ashcroft ordered Hale to be held at this facility under special restrictive measures taken against suspected terrorists since 9/11. He has been prohibited from communicating with people through the media, mail, or telephone, or from having visitors. So far, investigators have found bullet casings, but no weapon, and signs of a forced entry. The Chicago Tribune reports: "Within the last two weeks, federal agents in Chicago received a bulletin saying the white supremacist Aryan Brotherhood was possibly planning to harm "law enforcement and their families," according to a source. Information on what security measures might have been put in place in the wake of that alert was not immediately available," but federal investigators said Monday night that a protective detail was organized to protect Judge Lefkow. The Chicago Tribune's full story... [Mark Godsey]
Indianapolis Launches a New Four-Part Initiative to Target Latino Crime
Indianapolis police and city officials have introduced a four-part strategy for combating Latino crime, which they say is largely underreported. According to Indianapolis police and Spanish-speaking city officials, the police first must gain the trust of the Latino community, so they will report crime and cooperate with officials to solve crimes. (Marion County, where Indianapolis is located, has about 85,000 Latinos). The remaining three phases of the strategy include community education, recruitment, and greater communication. The Indianapolis Police Department has already appointed a Latino officer to serve as a citywide community liason, and established 327-MOTA, a Spanish-language hotline. The City still plans to increase the hotline's publicity, and launch a full-color advertisement in Spanish picturing a hand holding a blue telephone as a symbol of power. The ad campaign is called, "Luchemos Juntos Contra El Crimen" meaning "Let's fight crime together." More from the IndyStar... [Mark Godsey]
New Mexico House Votes to Abolish the Death Penalty
On Monday, after eight years of effort, death penalty opponents in New Mexico's House of Representatives voted 38-31 to abolish the death penalty and replace it with life in prison without parole. The repeal bill will now move to the State Senate for approval, although New Mexico's Governor, Bill Richardson, who has favored the death penalty in the past, can also veto the bill. Talkleft reports that the last time the NM Senate voted on a bill to repeal the death penalty, the bill was defeated by only one vote. More... [Mark Godsey]