Friday, April 14, 2006
Case Western CrimProf Lewis Katz is running for U.S. Congress from the 14th District of Ohio against Republican incumbant Steven C. LaTourette. Katz has practiced law for 30 years and now teaches, writes and consults. Katz opposes all free trade agreements, promotes tax incentives for job creation, wants to allow small businesses to participate in Medicare, opposes privatizing Social Security, wants to scrap No Child Left Behind and restore more local control to schools. The Tribune Chronicle has officially endorsed Katz.
The United States Supreme Court recently heard argument in two cases - Hammon v. Indiana and Davis v. Washington - that raise an issue of great importance to the future of domestic violence prosecution: when does the admission of out-of-court statements by an 'absent accuser' violate a defendant's right of confrontation? In contrast to previous scholars, who have largely focused on the relative merits of various definitions of 'testimonial,' I examine how courts have mapped these definitions onto the realities of battering. This inquiry reveals an uncritical judicial and scholarly acceptance of a false dichotomy between 'calls for help' and attempts to assist law enforcement by providing information - a dichotomy that often results in the improper exclusion of victims' out-of-court statements.
Yet whichever definition of 'testimonial' the Court adopts, there will be hearsay in 'victimless' prosecutions that would have been admissible before Crawford v. Washington but now will be properly excluded. Given this reality, the moment is ripe for sustained scholarly treatment of the rule of forfeiture, which precludes a defendant from asserting confrontation rights where he is responsible for procuring the absence of a witness. I therefore devote considerable attention to the question of how to import forfeiture principles to the domestic violence context. Battering - a course of conduct that is ongoing, patterned, and characterized by control (as well as violence - is different from violence against strangers. Accordingly, I argue that judicial reliance on precedent and analogy is inadequate to construct a doctrinal framework applicable to domestic violence cases. This Article provides a roadmap for the necessary reconceptualization of forfeiture.
I conclude by contemplating the implications of what I characterize as a 'relational' approach to confrontation. I posit that the Confrontation Clause is fundamentally concerned with the triangular relationship among accused, accuser and the state. Asking the relational question reveals a set of previously unexamined assumptions about this triangle. By exposing - and, in the domestic violence realm, contesting - the conventional alignment of the triangle, a relational approach transforms how we think about the meaning of confrontation.
Thursday, April 13, 2006
On Tuesday, the 6th Circuit Court of Appeals in Cincinnati ruled that Kentucky exoneree William Gregory, who spent seven years in prison for rape before a DNA test exonerated him, may sue the city and several police officers who put him behind bars, for their actions leading up to his wrongful conviction. The court also questioned whether Louisville's police department used an unconstitutional practice of having witnesses identify suspects in one-on-one settings instead of in a lineup.
Gregory, 58, of Louisville, was released from prison in 2000 after DNA tests showed that hairs found at the rape scene could not have come from him. He sued the city and police department, but a federal judge in 2004 threw out most of the lawsuit. His attorney, Deborah Cornwall of the Innocence Project, said the ruling shows Gregory's arrest and conviction were not a case of sloppy police work or of a witness being wrong, but rather a result of active misconduct. Louisville police kept preprinted waivers, allowing police to show a suspect to a victim or witness without putting the person in a lineup featuring multiple people. More. . . [Mark Godsey]
Wednesday, April 12, 2006
From Findlaw.com: FORT WORTH, Texas (AP)- A judge who halted an execution because the inmate was mentally ill has agreed to force the man to take anti-psychotic medication so he can be put to death. The inmate, Steven Kenneth Staley, 43, has refused to take his medication. A jury decided he should be put to death for the killing of a Fort Worth restaurant manager during a botched robbery. Judge Wayne Salvant issued the forced-medication order Tuesday, while Staley picked at his unruly hair and mumbled nonsensical phrases in the courtroom. The order, requested by prosecutors, drew a sharp argument from Staley's attorney. "The whole idea of holding somebody down and injecting them so that we can then say, with a straight face, this person is now competent so we can kill them, I think that smacks of an Orwellian-Soviet-style approach to criminal justice," Jack Strickland told the Fort Worth Star-Telegram. More. . . [Mark Godsey]
A convicted sex offender, Floyd Durr, pleaded guilty Monday to the 1998 murder of an 11 year-old girl whose death was originally pinned on two young boys, a 7 year old and an 8 year old. But DNA evidence has pointed to Durr, already serving a 125-year prison sentence for sexually assaulting other girls. With his guilty plea, he was sentenced to life in prison plus 30 years for the murder and sexual assault of Ryan Harris. Ryan was beaten and sexually molested in July 1998, then dumped in a weedy lot on Chicago's South Side, where she was found dead the next day. Authorities initially said the two boys, then 7 and 8, confessed to the crime. It took almost a month before testing on the girl's clothing showed the boys couldn't have been responsible. DNA tests later led prosecutors to Durr. Story. . . [Mark Godsey]
NYU CrimProf James Jacobs is quoted in this article from the Los Angeles Times about the state's likelihood of winning a federal extortion conviction against a gossip writer. Jacobs explains that because extortion requires obtaining money or anything of value by threatening harm, but the threat of harm must be something you have no right to impose, publishing information would generally not apply.
UT CrimProf George Dix is quoted in this article from the San Antonio Express explaining Texas' accomplice liability law. On paper, Texas law has zero tolerance for accomplices, so anyone who solicits, encourages, directs, aids or attempts to aid criminal conduct shares both guilt and punishment. But Dix explains that it's less clear in practice how much involvement is necessary to justify a prosecution.
California Western CrimProf Justin Brooks is quoted in this article from SignOnSanDiego.com about a child molestation case. The man accused confessed to two counts of molestation, but no evidence can corroborate the confession. So Brooks contends that more evidence is needed for a successful prosecution.
"An unusual coalition of business, civil rights and bar organizations scored a significant victory last week when the U.S. Sentencing Commission voted unanimously to delete language in the sentencing guidelines that encouraged government prosecutors to require waivers of the attorney-client privilege and work-product protections in order for corporations to qualify for leniency in sentencing." More from the National Law Journal. . . [Mark Godsey]
Tuesday, April 11, 2006
U.S. Magistrate Judge Edwin Torres, of Fort Lauderdale, Florida, set a $10 million bail Tuesday for an alleged Israeli organized crime figure, Zeev Rosenstein, thought to be one of the world's biggest distributors of Ecstasy. Judge Torres set the bail amount over the objections of federal prosecutors, who said they were concerned that Rosenstein could easily make bail and flee the U.S. But Torres was concerned about allowing Rosenstein to be held without bail or even a detention hearing for such a lengthy time since his extradition from Israel in early March. More. . . [Mark Godsey]
Fewer than 40 percent of parolees returned to prison after less than a year, continuing a decline that began in 1997, according to the latest numbers released by state Department of Corrections and Rehabilitation. In 2003, the one-year recidivism rate was 38.15 percent, and it crept up slightly the following year to 38.33 percent, according to figures released by the department Monday. But those figures are still far below the peak of about 54 percent in 1988. The one-year recidivism rate has been on the decline since 1997 when it was just under 45 percent. More from Findlaw. . . [Mark Godsey]
Bernardo "The Tractor" Provenzano, the undisputed chief of the Sicilian Mafia who had been on the run for more than four decades, was arrested on Tuesday while hiding in a farmhouse near Corleone in Sicily, (the city that inspired the family name in "The Godfather.") In the end, Provenzano was done in not by an informer or a rival gangster, but by a delivery of clean laundry. Police tracked the package to his hideout and closed in when they saw his hand peek out of the door to take it. Provenzano had escaped capture so often since going into hiding in 1963 that he earned a place in the Italian imagination as ''The Phantom of Corleone.'' Story here and here from NYTimes. [Mark Godsey]
The Detroit Police Department, whose image has been marred for years by complaints of wrongful detentions, the excessive use of force to obtain confessions and other civil rights abuses, has agreed to videotape interrogations of all suspects in crimes that carry a penalty of life in prison without the possibility of parole. More from NYTimes. . . [Mark Godsey]
A Massachusetts prison officer faces punishment for showing the gay cowboy movie "Brokeback Mountain" to inmates at the state's largest prison, not because of the subject matter, but because of the "graphic nature" of the sex scenes. Story. . . [Mark Godsey]
That's the amount NBC has admitted to paying an organization, called Perverted Justice, to set up a pedophile sting operation in Ohio for a "Dateline NBC" story, "To Catch a Predator." Seventeen men were arrested in March as part of the sting, which has drawn criticism because of the payment scheme. They were accused of looking for sex with minors after communicating with people posing as juveniles on the web. To meet local statutes involving evidence-gathering, three Perverted Justice members who engaged in Internet chats with alleged pedophiles were deputized by Darke County's sheriff. Technically, deputizing the volunteers made them law enforcement officers during the sting...It is almost unheard of for a media outlet to allow its paid associates to act as law enforcement officials, even on a temporary basis...because they might be publicly perceived as being "agents of the government" rather than as independent news gatherers. More from the Washington Post here and here. [Mark Godsey]
The upcoming sixth annual Forensic Science and Law Conference, Justice for All, April 20-22 at Duquesne University in Pittsburgh, will feature more than 40 national experts discussing causes of and solutions to wrongful convictions. Former FBI Director William Sessions, Massachusetts U.S. Attorney Michael J. Sullivan, U.S. Senator Arlen Specter, acclaimed forensic scientist Henry Lee, and DNA exonerees Kirk Bloodsworth and Thomas Doswell are among those who will offer presentations More. . .
South Carolina: A bill to expand South Carolina's capital punishment statute so that those who are convicted a second time of raping children under 11 are eligible for the death penalty has drawn criticism from those who worry the bill may result in unintended consequences. Fears that the legislation will lead to family members refusing to come forward regarding intra-family offenses and that it may also result in more rape victims being killed are among the chief concerns regarding the proposed legislation. More. . .
Alabama: Although death sentences have declined around the country, they have dramatically increased in Jefferson County, Alabama, since 1993 when state legislators expanded the death penalty to include drive-by shootings. Jefferson County, which includes Birmingham, accounted for nearly 50% of the state's death sentences in 2005 and 2006. More. . .
Monday, April 10, 2006
|(1)||173||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
|(2)||113||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
|(3)||108||The Second Death of Capital Punishment |
J. Richard Broughton,
United States Department of Justice - Capital Case Unit,
Date posted to database: January 26, 2006
Last Revised: February 12, 2006
|(4)||104||Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: March 2, 2006
Last Revised: March 16, 2006
|(5)||96||The Year of Jubilee . . . or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker |
Frank O. Bowman,
University of Missouri at Columbia School of Law,
Date posted to database: February 21, 2006
Last Revised: February 24, 2006