March 11, 2006
Article Spotlight: Coerced Confessions and the Fourth Amendment
The CrimProf Blog spotlights Chase CrimProf Michael Mannheimer's article Coerced Confessions and the Fourth Amendment published in the Hastings Constitutional Law Quarterly, Vol. 30, pp. 57-129, Fall 2002.
The abstract reads: "Coerced confessions in State criminal prosecutions have been thought to implicate the Due Process Clause of the Fourteenth Amendment, as well as the Self-Incrimination Clause of the Fifth Amendment. However, pursuant to Graham v. Connor, if an interest is addressed by one of the specific clauses of the Bill of Rights that has been incorporated against the States, only the standards associated with that provision – and not the more generalized notions of due process – apply to a claim that that interest has been infringed. Accordingly, one might think that the law of coerced confessions is governed entirely by the Self-Incrimination Clause. However, by its very terms, the Self-Incrimination Clause forbids a State only from forcing a person to be “a witness against himself.” Thus, the Clause is violated, if ever, only at trial, and the victim of police torture whose statements are never used against him or her would have no constitutional redress.
In this Article, Mr. Mannheimer argues that the coerced confession should be seen primarily as a Fourth Amendment event: it is the product of an unreasonable continuing seizure of the suspect, and, in addition, the product of an unreasonable search of his or her mind. Mr. Mannheimer further argues that, utilizing a Fourth Amendment reasonableness analysis in the coerced-confession context, courts would have to address whether exigent circumstances or an especial police need for a confession renders reasonable an interrogation that might otherwise be deemed coercive. In such a case, the resulting confession would still be “compelled” within the meaning of the Self-Incrimination Clause and would be inadmissible at trial. However, because no constitutional violation has occurred in obtaining the confession, any derivative evidence discovered as a result is not tainted as “fruit of the poisonous tree,” and is therefore admissible." To download the paper from SSRN click here. [Mark Godsey]
Milosevic Found Dead in Hague Prison Cell
Former Yugoslav President Slobodan Milosevic has been found dead in his cell in The Hague, Netherlands where he was being tried on war cimes charges, according to the United Nations war crimes tribunal. He was 64. An official in the chief prosecutor's office said Milosevic was found at about 10 a.m. Saturday and that he apparently had been dead for several hours. An autopsy will be performed Story here from CNN.com. . . [Mark Godsey]
Congratulations to CrimProf Laura Appleman
Professor Appleman is currently a visiting assistant professor at Hofstra University School of Law, where she teaches criminal law, legal ethics, law and race, and sentencing. Before entering academia, she was a criminal appellate public defender at the Center for Appellate Litigation, where she briefed and argued roughly 50 appeals in front of the New York appellate courts, including the New York Court of Appeals. Professor Appleman's scholarship examines the fundamental values and normative archiecture of the criminal law, sentencing and the legal profession, particularly within the context of the role of the jury and changing philosophies of punishment. Her writing appears in Temple Law Review, New England Law Review, The Green Bag and The Professional Lawyer, and she recently debated Professor Dan Solove in the Legal Affairs Debate Club about abolishing the third year of law school. She currently blogs at The Legal Ethics Forum and is an occasional guest-blogger at Prawfsblawg. Professor Appleman also serves on the Criminal Advocacy Committee of the Association of the Bar of the City of New York, has worked with the Brennan Center for Justice on issues of indigent defense and criminal procedure, and servies on the Board of Advisors for the Green Bag's annual book of good legal writing. As an undergraduate, Appleman studied English at the University of Pennsylvania, where she also received her Master's in English. She received her J.D. from Yale Law School, where she was book-review editor for The Journal of Law & Humanities, researched for a variety of professors, and took as many cross-disciplinary courses as possible. For links to some of Professor Appleman's publictions, click here.
March 10, 2006
Capital Jury Analysis Database Coming Soon
Albuquerque-based jury consultant Joseph Guastaferro is refining a database of attitudes toward the death penalty culled from 1500 juror questionnaires in a federal capital case earlier this year. Designed to streamline the voir dire process in a multi-defendant gang-related prosecution, the database covers a myriad of death-penalty related questions and can generate general and highly-specific juror attitude reports sorted according to demographics such as race, age and employment, and in specific areas such as attitudes toward police, the government, knowledge or fear of gang activity, and dozens of other subjects. The database can be customized to be case-specific and will be made available to other capital defense lawyers. Funds for completion of the project were provided by NACDL's Death Penalty Committee.
The database uses Microsoft's Access database management software (Access is bundled with Microsoft Office or can be purchased as a standalone product for about $200). The software organizes data – in this case, biographical data and answers to the jury questionnaires – and generates reports, such as juror attitudes toward the death penalty sorted according to race, income and other demographics, and prior contacts with the criminal justice system.
The April edition of The Champion will have more information on the database. [Mark Godsey]
March 9, 2006
NACDL Hosts White Collar Crime Conference Call TODAY at Noon EST
Join NACDL for a FREE CLE White Collar Crime Conference Call Friday, March 10th at 12:00 p.m. eastern time to discuss attorney-client privilege waivers. Speakers include NACDL white collar crime committee co-chair Barry Pollack and committee vice chair Ross Garber.
NACDL will not apply for pre-approved CLE credit for this call, however, you may be eligible for up to one(1) hour of CLE credit in some states where self-filing is allowed. [Mark Godsey]
NACDL/Association of Corporate Counsel Joint Survey on Attorney Client Privilege
The National Association of Criminal Defense Lawyers and the Association of Corporate Counsel's recently joined forced to survey in-house counsel and NACDL members about the attorney-client privilege. Highlights of the survey include:
--Nearly 75 percent of both inside and outside counsel agree that a “culture of waiver” has evolved in which government agencies expect a company under investigation to waive legal privileges.
--In the past five years, approximately 30 percent of in-house counsel and 51 percent of outside counsel confirmed that the government expected waiver in order to engage in bargaining or be eligible for more lenient treatment.
--Nearly three-quarters of outside counsel said that the expectation of privilege waiver was communicated rather than implied. Of those, 26 percent said that waiver was requested as a direct and specific statement that waiver was a condition precedent for cooperation.
Here is the full article from NACDL. [Mark Godsey]
DUI Urban Legend
LatCrit Call for Papers
WORKING AND LIVING IN THE GLOBAL PLAYGROUND: FRONTSTAGE AND BACKSTAGE, University of Nevada Las Vegas, William S. Boyd School of Law, October 5-8, 2006. Materials here.
Not-so-Smooth Sailing: Cruise Ship Crimes
Allegations of theft, assault and even murder aboard cruise ships have prompted hearings in Congress over ways to deal with cruise ship crime. Eric Weiner reports on the complications of handling crimes that occur in international waters. Listen to the story here on NPR. [Mark Godsey]
Non-Profit Private Prisons More Effective
Yale CrimStudent David Pozen has this Boston Globe OpEd summarizing research he did suggesting that non-profit, private prisons have the lowest recidivism rates, followed by public prisons, with private, for-profit institutions having the highest rates. [Jack Chin]
DC Presentation: New Scholarship in Race and Ethnicity -- Reforming Criminal Justice for Indian Tribes
March 14 2006, 3:00 p.m. - 5:00 p.m. Event Details One of the perhaps unanticipated side effects of the 1960s’ War on
Poverty was an increase in the self-determination of Indian tribes.
Treating the tribes as grassroots organizations, the Office of Economic
Opportunity directed money to them so that they could begin exercising
various governmental functions that had formerly been the purview of
the federal Bureau of Indian Affairs. According to Prof. Kevin
Washburn, the result was that “to a significant extent, modern tribal
governments were born from the War on Poverty programs.”
Indian self-determination, however, is now at a crossroads. The tribes still lack control over felonies on Indian reservations. This is important, Washburn asserts, because “criminal law is the institution in which communities set out their most important values about how people should treat one another…one of the key institutions through which the community works to change the way it thinks about certain activities.”
Join us for this discussion of federal Indian policy and the ways in which it might be altered.
Woodrow Wilson Center,
1300 Pennsylvania Avenue, N.W.
Washington, DC 20004 -3027
Directions are available at our web site at http://www.wilsoncenter.org/directions. Please allow extra time for security; a picture ID is required. Admission to the discussion and the reception are free but seating is limited and reservations are required. Please RSVP to email@example.com.
About the speakers:
Kevin K. Washburn, Associate Professor of Law at the University of Minnesota and an enrolled member of the Chickasaw Nation of Oklahoma, has taught at the law schools of the University of Nebraska and the University of New Mexico.
Dan M. Kahan is Elizabeth K. Dollard Professor of Law and Deputy Dean at Yale Law School.
Alexander Tallchief Skibine, Professor of Law at the University
of Utah, is a member of the Osage Indian Tribe of Oklahoma.
New Article Spotlight: Spousal Homicide, 1880-1920
Colorado CrimProf Carolyn Ramsey has published Intimate Homicide: Gender and Crime Control, 1880-1920 at 77 University of Colorado Law Review 101(2006). Abstract: The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence toward women. Drawing on previously unexplored archival material, "Intimate Homicide: Gender and Crime Control, 1880-1920" demonstrates that this story is in need of revision. It dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, whereas women charged with similar crimes were treated with leniency. Moreover, men who killed their lovers, spouses, or other family members in the late nineteenth and early twentieth centuries were executed in larger numbers than today. Although no formal battered woman's defense existed in the late 1800s and early 1900s, courts and juries implicitly recognized one - and even extended it to abandoned women who killed their unfaithful partners. In contrast, when men were accused of intimate murder, the provocation doctrine and other defenses were applied narrowly, and men were held to higher standards of self-control. Jury verdicts and appellate opinions thus reveal concern to police masculinity by punishing men who killed their intimates and by excusing, or even justifying, women's lethal reactions to mistreatment from men. Such paternalistic efforts to condemn male abuse of women did not go uncontested; competing norms led to a deplorable failure to prevent domestic violence from occurring. Nevertheless, the research presented here undercuts the common scholarly view that a hegemonic gender ideology tolerant of extreme violence against women controlled public responses to intimate homicide. This article is not simply a matter of interest to legal historians. Rather, it also requires criminal law scholars and feminists, such as the author, to re-examine the underpinnings of their theories.
Wayne State to Host Symposium on Public Corruption
On Friday, March 24, 2006 at 8:15 a.m., the Wayne Law Review, with the support of the State Bar of Michigan and the Departments of Criminal Justice and Political Science at Wayne State University, will host its Annual Legal Symposium on the topic of Public Corruption.
The Symposium will be held at the Spencer M. Partrich Auditorium at the Wayne State University Law School, 471 W. Palmer St., Detroit. The all-day event begins at 8:15 am with a continental breakfast. Lunch is scheduled for noon and a 5:15 pm reception will follow the symposium, which is free and open to the public. The Review encourages all attendees to RSVP to ensure a spot.
Given the recent high-profile federal prosecutions of Connecticut Governor John Rowland, former Atlanta Mayor Bill Campbell, former Detroit City Council member Alonzo Bates, Scooter Libby, Jack Abramoff, and many others, public corruption cases are a priority for the U.S. Department of Justice. The prosecutions of these well-known figures have been criticized on many levels, including “federalizing” what would be the purview of county and state prosecutors; vagueness of the Hobbs Act, designed to combat corruption; and questions of ethics codes and internal legislative oversight replacing prosecutions.
Noel Hillman, Chief of the Public Integrity Section of the United States Department of Justice, Washington, DC
Craig Morford, Assistant U.S. Attorney for the Northern District of Ohio
Richard Hibey, Criminal Defense Attorney, Miller Chevalier, Washington, DC
Marilyn Glynn, Legal Counsel for the U.S. Office of Government Ethics, Washington, DC
Professor George Brown, Boston College Law School, specialist in federal-state relations and government ethics
Professor Frank Anechiarico, Hamilton College, expert in government and law
Professor Daniel Lowenstein, University of California, Los Angeles, expert in election law
Michael Stanton, Pulitzer-Prize Winning Author and Journalist, Providence Journal, Providence, RI
Parking is available in Structure #1 across from the Law School on Palmer (corner of Cass) for $3.50.
RSVP: Davidde A. Stella, Executive Articles Editor, Wayne Law Review, (313) 577-8032 or at firstname.lastname@example.org. For more information contact Mr. Stella or visit the Law Review’s symposia’s website: http://www.law.wayne.edu/organization/lawreview/symposia.htm
March 8, 2006
Death Sentence Overturned on Grounds of Trial Judge's Misconduct
During a triple-murder trial's penalty phase, a Superior Court judge disparaged the defense lawyer, berated defense witnesses, made objections on the prosecution's behalf, and led jurors to believe incorrectly that the defendant had been convicted of premeditated murder. The California Supreme Court rewarded Judge Donald McCartin's performance by reversing that death sentence Monday. McCartin, the justices held, had crossed the line to the point of committing misconduct and prejudicing the trial's outcome. Gregory Sturm will be resentenced, in a third sentencing hearing; the first was declared a mistrial. The case is People of California v. Sturm. More from The Recorder. . .[Mark Godsey]
March 7, 2006
OSU CrimProf Douglas Berman to Speak at Ohio Northern
“A Capital Waste of Time? A Critical Examination of the Supreme Court’s Choices in Criminal Cases” will be discussed at the Ohio Northern University Petit College of Law’s Moot Court Room (129) Thursday, Mar. 16 at 11:30 a.m.
The event is free and open to the public and co-sponsored by the ONU Criminal Law Society. Douglas Berman, a William B. Saxbe Designated Professor of Law from Michael E. Moritz College of Law at the Ohio State University, will be speaking on the subject.
Professor Berman's principal teaching and research focus is in the area of criminal law and criminal sentencing. Berman is the co-author of a casebook , Sentencing Law and Policy: Cases, Statutes and Guidelines. Berman teaches Criminal Law, Criminal Punishment and Sentencing, Criminal Procedure -- Evidence Gathering, The Death Penalty, and Introduction to Intellectual Property. During the 1999-2000 school year, Professor Berman received the Ohio State University Alumni Award for Distinguished Teaching which is given to only 10 persons each year from an eligible pool of nearly 3,000 faculty members Berman is the sole creator and author of the widely-read and widely-cited web log, Sentencing Law and Policy . [Mark Godsey]
New Article Spotlight: Challenging the Constitutionality of Strict Liability Sex Offender Registration
Southwestern CrimProf Catherine L. Carpenter is publishing a very interesting paper in Volume 86 of the Boston University Law Review: The Constitutionality of Strict Liability in Sex Offender Registration Laws. The Abstract:
"People are afraid and it is understandable. One need only hear the heartbreaking account of a child abducted and assaulted, or murdered by a convicted sex offender, to appreciate a community's desire to protect its children from predators who live among them. Sex offender registration and notification schemes, which are designed to track the offenders and to protect the community, are motivated by justifiable regulatory intentions; nonetheless, legislators may be guilty of overreaching. This article explores the constitutionality of sex offender registration laws as it applies to one specific group of convicted sex offenders - the statutory rapist who has been convicted in one of thirty jurisdictions that employs a strict liability framework: specifically, whether strict liability provides a sufficient and constitutional framework for the requirement to register as a sex offender. This article draws the distinction between a narrowly constructed sex offender registration system designed to protect the public, and a net cast so wide that it captures those for whom predatory behavior or criminal intent was never proven. It is argued that because of several factors converging, including the recent Supreme Court decisions in Connecticut Department of Public Safety v. Doe and Lawrence v. Texas, the sweeping nature of sex offender registration laws unconstitutionally impacts the strict liability offender."
Full document here.
DePaul CrimProf Leonard Cavise is quoted in this article from the LA Times about the federal government's likelihood of sucessfully prosecuting former Illinois Governor George Ryan under federal bribery and fraud laws, including RICO.
Loyola CrimProf Laurie Levenson is quoted in this article from the Chicago Tribune and this article from Columbian.com about the increased number of federal criminal prosecutions involving sealed records. The percentage of defendants whose cases have reached verdicts and sentencing, but whose records remain sealed, has gone from 1.1 percent in 2003 to 2.7 percent last year, according to the Office of U.S. Courts.
University of Pennsylvania CrimProf Paul Robinson and Santa Clara CrimProf Michelle Oberman are quoted in this article from NewJersey.com about New Jersey's statutory rape laws, which allow girls ages 13-16 to consent to sex with males less than four years older than them. 16 is the age of consent. [Mark Godsey]
Bad Day as a Defense Lawyer
Talk about a bad day as a defense lawyer. Check out the following judge's order. Make sure you read the footnote. Download incomprehensibility_order1.pdf [Mark Godsey]
Texas Law's Capital Punishment Clinic Wins 5th Cir. Victory
The Fifth Circuit ruled that Robert Tennard's death sentence could not stand because of the failure of the sentencing instructions to permit consideration of his 67 I.Q. The Clinic had previously taken Tennard's case to the U.S. Supreme Court when the Fifth Circuit had ruled that Tennard's claim did not merit an appeal. The Supreme Court reversed the denial of the appeal, and Wednesday's decision was a ruling on the merits of that appeal.
Professors Rob Owen and Jordan Steiker from the University's Capital Punishment Clinic, along with co-counsel Dick Burr, litigated the case both in the U.S. Supreme Court and in the Fifth Circuit. Many students had assisted in this effort, and several had traveled to the U.S. Supreme Court with Owen and Steiker in the earlier litigation. Owen had argued the case in the U.S. Supreme Court and Steiker argued the case when it returned to the Fifth Circuit.
In an odd coincidence, the Clinic's other recent Supreme Court victory was also addressed on remand Wednesday. The Texas Court of Criminal Appeals denied relief to Laroyce Smith, holding that the U.S. Supreme Court's decision finding error in his case did not warrant relief because Smith had not shown sufficient harm resulting from the error. In Smith's case, the Supreme Court had found that the sentencing instructions prevented jurors from considering Smith's difficult background, low I.Q., and learning disabilities.
The Texas Court of Criminal Appeals' decision on Wednesday appeared to take issue with the Supreme Court's holding, stating that jurors could in fact give effect to Smith's evidence. Steiker indicated that Smith's case will be again presented to the Supreme Court in light of the Texas Court of Criminal Appeals' ruling." [Mark Godsey]
This Week's Top 5 Crim Papers
|(1)||187||Law, Science, and Morality: A Review of Richard Posner's 'The Problematics of Moral and Legal Theory' |
Georgetown University - Law Center,
Date posted to database: January 24, 2006
Last Revised: February 6, 2006
|(2)||151||Uses and Abuses of Empirical Evidence in the Death Penalty Debate |
John J. Donohue, Justin Wolfers,
Yale Law School, University of Pennsylvania - Business & Public Policy Department ,
Date posted to database: December 19, 2005
Last Revised: February 10, 2006
|(3)||132||The Cognitive Psychology of Circumstantial Evidence |
Kevin Jon Heller,
University of Georgia School of Law,
Date posted to database: December 12, 2005
Last Revised: March 2, 2006
|(4)||100||Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data |
Mark Denbeaux, Joshua W. Denbeaux,
Seton Hall University - School of Law, Denbeaux & Denbeaux,
Date posted to database: February 21, 2006
Last Revised: March 6, 2006
|(5)||94||The Japanese American Cases - A Bigger Disaster than We Realized |
Eric L. Muller,
University of North Carolina at Chapel Hill - School of Law,
Date posted to database: February 6, 2006
Last Revised: February 15, 2006