CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, June 22, 2006

Dixon v U.S.: SC Places Burden of Proof on Defendant for Duress Defense

From washingtonpost.com: In Dixon v. U.S., the Supreme Court clamped down on defendants who claim they were coerced into breaking the law. Those defendants, not prosecutors, have the burden of proving in trials that they committed crimes only under duress.

In the 7-2 ruling against a Texas woman who claimed her abusive boyfriend forced her to illegally buy him guns while his accomplices held her children hostage, Justice John Paul Stevens wrote in the majority opinion that Dixon's constitutional rights were not violated when jurors were told that she had to prove that she was coerced into breaking the law.

Congress can, if it chooses, enact a duress defense that places the burden on the government to disprove duress beyond a reasonable doubt," Stevens wrote. He also noted that prosecutors did have to show that she acted knowingly and willfully. Rest of Article. . . [Mark Godsey]

June 22, 2006 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 21, 2006

Nebraska Prison Overcrowding Reaches Emergency Capacity

From JournalStar.com:  All told, Nebraska prison cells are holding about 4,480 inmates, 40 percent more than they were designed to — a threshold lawmakers said could make the state legally vulnerable to charges prisoners face “cruel and unusual punishment.”

This concern motivated Nebraska lawmakers to pass a state law in 2003 that says when the 40 percent mark is reached, the governor may declare an emergency and order prisoners be released on parole to reduce capacity.

Gov. Dave Heineman’s response when learning prisons are at more than 140 percent of capacity: “The director (of the Department of Correctional Services), Robert Houston, advises me that the correctional institutions continue to operate safely … as a result, I have determined not to declare a correctional system overcrowding emergency.”

Rest of Article. . . [Mark Godsey]

June 21, 2006 in News | Permalink | Comments (0) | TrackBack (0)

Indiana University School of Law CrimProf Appointed to Named Professorship

Edwards_1Indiana University School of Law CrimProf George Edwards has been appointed to a named professorship as of July 1 of this year. Professor George Edwards, the director of the school’s Program in International Human Rights Law is now the Carl M. Gray Professor of Law. Professor Edwards teaches international human rights law, public international law, international legal transactions, international criminal law and criminal procedure. He also oversees the international human rights law track of the school’s LL.M. program. [Mark Godsey]

June 21, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Freed Man Testifies About The Reality of False Confessions

From latimes.com: Seventeen years ago, Christopher Ochoa told a Texas jury exactly how he and a friend repeatedly raped 20-year-old Nancy DePriest and then shot her dead at her workplace. But Ochoa's story was a lie — a total lie. He had been threatened with the death penalty by a police detective if he did not admit to the murder. The fact that Ochoa confessed falsely did not come to light until 2000, four years after the real killer told police that he was responsible for the young woman's death.

Today, Ochoa is testifying in Los Angeles at a hearing of the state's Commission on the Fair Administration of Justice about the ramifications of their experience for California. In particular, they want to express their strong feelings about a subject that many people find difficult to grasp: that innocent people sometimes really do confess to crimes they did not commit.

"Cases like this reveal in very dramatic terms that this does happen — not just with people who are mentally ill or of limited intelligence or otherwise vulnerable, such as children," said  University of Wisconsin School of Law CrimProf Keith A. Findley, who played an instrumental role in securing freedom for Ochoa and Danziger. "It happens with mentally healthy, intelligent people like Chris Ochoa," who last month graduated from the law school where Findley teaches, the professor said.

Indeed, of the 180 inmates in the United States exonerated by DNA testing in the last two decades, 44 had falsely confessed, said New York attorney Barry Scheck, a co-founder of the Innocence Project at New York's Benjamin N. Cardozo School of Law who also played a key role in the case.

Rest of Article. . . [Mark Godsey]

June 21, 2006 in Confessions and Interrogation | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 20, 2006

Yale Law School CrimProf Comments about Davis v. Washington on NPR

Sullivan_ronaldYale Law School CrimProf Ronald S. Sullivan, Jr. was interviewed for a story that aired on NPR’s Morning Edition on June 20. Sullivan commented on this week’s Supreme Court decision on Davis v. Washington – a ruling that allows into evidence a 911 call from a domestic abuse victim who did not testify at trial.

Prof. Sullivan’s areas of interest include criminal law, criminal procedure, legal ethics, and race theory. He is the founding director of the Samuel and Anna Jacobs Criminal Justice Clinic and has worked as staff attorney, general counsel, and director for the Public Defender Service for the District of Columbia. Listen. . . [Mark Godsey]

June 20, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Catholic University of America CrimProf Comments about Hudson v. Michigan on NPR

Bo20rutledge2001_1Catholic University of America Columbus School of Law CrimProf Peter “Bo” Rutledge provided commentary and analysis of a recent, controversial Supreme Court ruling for National Public Radio on June 19, 2006. As the sole guest for a one-hour segment on the nationally syndicated Kojo Nnamdi Show, Rutledge discussed the implications of Hudson v. Michigan, a 5-4 decision released on June 15 that held that a violation by the police of the "knock-and announce" rule when they enter a home with a warrant does not bar the use of evidence gathered in the search.

"What the knock-and-announce rule has never protected...is one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable," Justice Antonin Scalia wrote in the majority opinion.

Rutledge, a CrimProf and a former clerk for Justice Clarence Thomas, has appeared previously on the program. Listen. . . [Mark Godsey]

June 20, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

New Article Spotlight: Behavioural Genetics in Criminal Cases: Past, Present, and Future

Farahany Vanderbilt University Law School CrimProf Nita A. Farahany and Vanderbilt University Prof William Bernet have posted the above-titled article on SSRN.  Here is the abstract:

"Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on behalf of criminal defendants with respect to these two gene variants, and the future direction of behavioral genetics evidence in criminal cases."

To obtain paper, click here

June 20, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 19, 2006

Police See No Reason For Changing Knock First Rule

From npr.com: A Supreme Court ruling that protects evidence collected by police who fail to knock and announce themselves. But police professionals say they see no need to change their normal practices. They don't feel handcuffed by existing rules. Listen to story. . .  [Mark Godsey]

June 19, 2006 in Law Enforcement | Permalink | Comments (0) | TrackBack (0)

Supreme Court: Statements Made During Emergency are Admissible in Court

From Associated Press: The Supreme Court ruled Monday that statements made by crime victims to 911 operators or police during emergencies can be used in court even if those victims do not testify at trial.

By a 9-0 vote in Washington v. Davis, justices ruled that a Washington man's right to confront his accuser was not violated because he could not cross-examine his ex-girlfriend, who claimed in a 911 call that he had assaulted her.

In another case, Hammon v. Indiana, the justices ruled 8-1 that a police officer had crossed the line, from dealing with an emergency to conducting an investigation, when he questioned a woman about what her husband had done to her well after she had been assaulted.

Writing for the majority, Justice Antonin Scalia said 911 statements are admissible in court when police are trying to deal with an emergency. But such statements cannot be used if the emergency has ended and police are gathering evidence to use in filing criminal charges, he said.

Justice Clarence Thomas was the lone dissenter in the Indiana case, writing that he believed the officer's testimony about what the woman had told him was admissible in court. But Thomas said he does not believe the majority's definition of when an emergency ends and an investigation begins is workable. Rest of Article. . . [Mark Godsey]

June 19, 2006 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Supreme Court Rules that California Parolees may be Routinely Searched

From Associated Press: California parolees can routinely be searched by police as a condition of their release from prison, the Supreme Court ruled Monday in Samson v. California. By a 6-3 vote, justices said the 1996 law is a legitimate attempt by state officials to deal with a large population of repeat offenders who pose a danger to public safety.

In California, most prisoners eventually receive parole. But before release, each parolee is required to consent in writing to searches by police during the term of their supervision. If they refuse, they are not allowed out of prison. Under the law, police can conduct such a search as long as it is not arbitrary, capricious or conducted to harass the parolee.

Justice Clarence Thomas, writing for the majority, said California has a "special governmental interest" to control its parolees, an interest that outweighs a parolee's privacy.

Justice John Paul Stevens, writing in dissent, said the majority had "run roughshod" over previous court rulings on unreasonable searches and improperly allowed California to create another form of punishment for its prisoners. "What the court sanctions today is an unprecedented curtailment of liberty," Stevens wrote on behalf of himself and Justices David Souter and Stephen Breyer.

Rest of Article. . .  [Mark Godsey]

June 19, 2006 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Sunday, June 18, 2006

Law Enforcement Losing Track of Sex Offenders

From Charlotte.com: Authorities have lost track of at least 22 convicted sex offenders in Mecklenburg County and hundreds more across the Carolinas, exposing gaps in the states' sex-offender registry laws.

The registry is supposed to warn the public where rapists, child molesters and other sex offenders live. But law enforcement agencies acknowledge that hundreds of offenders do not notify local sheriff's offices where they live and when they move.

N.C. lawmakers were already considering toughening how the state monitors sex offenders, including a proposal that would require some offenders to wear a tracking device, before the recent slaying of a Clemson University student renewed attention to the tracking laws.

At least 100,000 of the estimated 600,000 sex offenders nationally don't notify law enforcement agencies of their whereabouts as required by states' laws, according to the National Center for Missing and Exploited Children. Full Article. . . [Mark Godsey]

June 18, 2006 in News | Permalink | Comments (1) | TrackBack (0)

This Week's Top Five Crim Papers

Ssrn_17_4 This week's top 5 crim papers, with number of recent downloads, are:

(1) 173 The Poverty of the Moral Stimulus
John Mikhail,
Georgetown University - Law Center,
Date posted to database: April 19, 2006
Last Revised: April 27, 2006
(2) 156 Killing in Good Conscience: Comments on Sunstein and Vermeule’s Lesser Evil Argument for Capital Punishment and other Human Rights Violations
Eric D. Blumenson,
Suffolk University - Law School,
Date posted to database: April 25, 2006
Last Revised: June 5, 2006
(3) 156 Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
Neal Kumar Katyal,
Georgetown University Law Center,
Date posted to database: May 8, 2006
Last Revised: May 31, 2006
(4) 156 Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant
Erica J. Hashimoto,
University of Georgia - School of Law,
Date posted to database: May 17, 2006
Last Revised: June 1, 2006
(5) 128 The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence
Erin Murphy,
University of California, Berkeley, School of Law (Boalt Hall),
Date posted to database: April 19, 2006
Last Revised: May 3, 2006

June 18, 2006 in Weekly Top 5 SSRN Crim Downloads | Permalink | Comments (0) | TrackBack (0)

Cooley Innocence Project Recieves Justice For All Award

Justice_award The Thomas M. Cooley Law School Innocence Project was awarded the Justice for All Award by the Criminal Defense Attorneys of Michigan (CDAM). The award was given to the project for the work associated with the June 2003 DNA exoneration of Kenneth Wyniemko, a Detroit-area man falsely imprisoned in a sexual assault case, and for the project’s continuing work on behalf of Michigan prisoners.

Individuals recipients of the award include Professor Norman Fell, director of the Innocence Project; Professor Kathy Swedlow, former co-director of the Innocence Project; Donna McKneelen, former Innocence Project student and its current staff attorney; and Marla Mitchell-Cichon, Innocence Project faculty supervisor.

According to Professor Swedlow, "The Cooley Innocence Project provides important assistance for Michigan prisoners who claim factual innocence, and also serves the general public by screening cases and only bringing the appropriate ones to court. In addition, our students learn that wrongful convictions can and do occur, and it's our hope that this training will have an effect on reducing wrongful convictions in the future. We are thrilled and grateful that CDAM has chosen to honor us for our work.” [Mark Godsey]

June 18, 2006 in CrimProfs | Permalink | Comments (1) | TrackBack (0)

Saturday, June 17, 2006

New Article Spotlight: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant

Hashimoto University of Georgia School of Law Crim Prof Erica J. Hashimoto has posted the above-titled article on SSRN.  Here is the abstract:

Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right to self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon of self-representation.

This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants - nearly 80% - displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.

June 17, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 16, 2006

CrimProf Spotlight: Professor Sadiq Reza

Sadiqreza_3 This week, the CrimProf Blog spotlights Crim Prof Sadiq Reza of New York Law School.

An authority in criminal law and procedure, Sadiq Reza is a former public defender in Washington, D.C., and award-winning teaching fellow at Harvard in undergraduate courses in Islam and the modern Middle East.

His current research and writing is in criminal law and procedure in Islamic law (sharia) and in countries of the contemporary Muslim world. In 2004–05, he was a visiting researcher at the Islamic Legal Studies Program at Harvard Law School. Professor Reza has also written and spoken extensively about criminal procedure issues in the wake of September 11.

Before coming to New York Law School, Professor Reza clerked for a federal judge in San Francisco and spent four years as a trial and appellate attorney at the Public Defender Service for the District of Columbia. He has also worked with the American Muslim Council, the American-Arab Anti-Discrimination Committee, and the law firm of Arnold & Porter.

While in law school, Professor Reza was an articles editor for the Harvard International Law Journal, a member of the Criminal Justice Institute and Prison Legal Assistance Project clinics, president of the Middle Eastern Law Students Association, and a teaching fellow in Harvard undergraduate courses on Islam and the modern Middle East, for which he received a Certificate of Distinction in Teaching in 1990. Before law school Professor Reza spent two years at the American University in Cairo, Egypt, teaching English and studying Arabic at the Center for Arabic Study Abroad.

Professor Reza’s writing has appeared in various publications, including the Harvard International Law Journal, the New York Law Journal, and The Washington Post. [Mark Godsey]

June 16, 2006 in Weekly CrimProf Spotlight | Permalink | Comments (0) | TrackBack (0)

Thursday, June 15, 2006

Due to Outcry, New Jersey Reopens the Prison Door for the Media

According to the Philadelphia Inquirer, New Jersey's acting corrections commissioner reversed himself yesterday and dropped a blanket ban barring reporters from interviewing prisoners. Acting Commissioner George Hayman will now review interview requests case by case.

The ban was virtually unknown until the Star Ledger of Newark reported it yesterday, prompting an outcry from advocates for civil liberties and the news media. The ban was considered one of the most stringent in the country. More. . . [Mark Godsey]

June 15, 2006 in News | Permalink | Comments (0) | TrackBack (0)

Crim Prof Brigette Siff Holmes named "Lawyer of the Year"

Holmes_1Crim Prof Brigette Siff Holmes, director of the Social Justice Institute at Franklin Pierce Law Center, was recently named "Lawyer of the Year" by the Merrimack County Bar Association. The award is made annually to a member of the Association "who makes a remarkable contribution to improve the well-being of the citizens of the county, state or nation and those contributions are above and beyond the ordinary attorney."

Attorney Siff Holmes was honored for her long record of public service, and "because Siff Holmes, and the body of work she promotes, touches the lives of ordinary people in very fundamental ways."

Prior to moving to New Hampshire, Siff Holmes served as a public defender in Alaska. From 1988 to 1992, she worked in New Hampshire representing many indigent clients. Siff Holmes joined Pierce Law in June 2000. As director of the Social Justice Institute, she spends much of her time encouraging students to pursue careers in public interest law, and is active in raising funds to support the Institute and its programs. [Mark Godsey]

June 15, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

5-4 Supreme Court Decision Weakens the Knock First Rule

From nytimes.com: Thursday in Hudson v. Michigan, the Supreme Court affirmed the power of police officers backed by a search warrant to enter a home without knocking.

It was not disputed that the Detroit police officers had violated the Supreme Court's modern interpretation of the Fourth Amendment, which generally holds that officers with a warrant should knock first. The question for the justices was whether the violation was serious enough to throw out the appellant's conviction.

The court, in a 5-4 decision, concluded that it was not. Justice Antonin Scalia, in writing the opinion, noted the difference between a situation in which evidence is seized without a warrant and a situation like appellant's when the police came with a warrant. He wrote, too, that other remedies, like civil suits and disciplinary actions within police departments, are in place to counter lapses like those committed by the Detroit officers.

Justice Scalia was joined by Justice Samuel A. Alito and Chief Justice John G. Roberts Jr. Justices Clarence Thomas and Anthony M. Kennedy were also in the majority, but Justice Kennedy wrote a separate opinion in which he said the court's holding today should not be interpreted as suggesting that violations of the knock-and-announce requirement "are trivial or beyond the law's concern." Justice Stephen G. Breyer wrote a heated dissent, joined by Justices John Paul Stevens, David H. Souter and Ruth Bader GinsburgMore. . . [Mark Godsey]

June 15, 2006 in Supreme Court | Permalink | Comments (0) | TrackBack (1)

Wednesday, June 14, 2006

New Jersey Slams the Prison Door on the Media

According to the Star-Ledger, The New Jersey Department of Corrections has instituted one of the nation's tightest restrictions on media access to state prisons, including a complete ban on interviews with inmates.

Inmates have long used such interviews to protest their innocence, decry prison conditions or just tell their life stories, not always a welcome prospect for law enforcement officials and victims of crime.

In interviews, press organizations, inmate advocates, constitutional lawyers and the American Civil Liberties Union condemned the new policy, saying it represented an erosion of the public's right to know what is going on inside a public institution.  More. . . [Mark Godsey]

June 14, 2006 in News | Permalink | Comments (0) | TrackBack (0)

Shutting Out Defense Lawyers Through Secret Procedures

From washingtonpost.com: In Chicago, attorneys for a man accused of serving as a "sleeper agent" in the U.S. for Saddam Hussein's regime, have asked a federal judge whether the National Security Agency eavesdropped on his phone conversations. Prosecutors say a Justice Department Representative will answer the question, but only in the judge's chambers with defense attorneys not allowed.

Such secret procedures, once rare in American courts, have become more common since the Sept. 11 terrorist attacks. Prosecutors say they need secrecy to protect undercover agents, informants, and witnesses from terrorist reprisals and to keep critical information pipelines from being shut down.

But defense attorneys say the right of defendants to confront their accusers, guaranteed by the Sixth Amendment to the Constitution, is being worn away under the guise of national security.

"It's critical to the functioning of a healthy democracy that people know what the government is doing in their name," said Georgetown University Law Center Crim Prof David ColeMore. . . [Mark Godsey]

June 14, 2006 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)