April 21, 2006
New Blog on False Confessions
Williams College Prof./ Yale Law School grad Alan Hirsch has a new website on false confessions, www.thetruthaboutfalseconfessions.com. It is worth checking out
Dan Filler on the Right to Counsel
Here. He explains why the Strickland v. Washington approach does not work in the context of the right to choose counsel.
April 20, 2006
The Lawyers in the Duke Lacrosse Team Rape Case
Why would a prosecutor fast-track a high-profile rape case like this against rich defendants, unless the evidence were airtight? On the other hand, why would experienced defense lawyers use the I-word in public, unless they were confident that there was no chance their clients were guilty, and thus might need, for example, to consider a plea at some point down the road? Someone seems to be making a misjudgment or operating on incomplete information here. The lawyers, however, look solid.
Durham prosecutor Mike Nifong: UNC Law Grad, career county DA, now standing for reelection; May 2, 2006 primary. Interesting fact: He could not get work when he graduated from law school in the late 1970s, so he served as a volunteer ADA untila slot opened up. Appointed to the top job last year, he has a good reputation, but won critcism for his handling of this case so far.
Reade Seligmann's attorney is Kirk Osborn, a UNC grad ('74) also evidently a solo. He was involved in the "Little Rascals" case where one of his clients, a day care worker, was wrongfully convicted and then exonerated of accusations of being part of a child molestation ring. Earlier this year, he was part of a team that won a life sentence in a death case based on mental retardation; the state objected that the defendant did not prove that he had been diagnosed before age 18; Osborn and company successfully countered with the argument that since their client had attended a racially segregated state school with poor resources and no psychologists, such a requirement was unfair; he's on the board of the Fair Trial Initiative. Ten years ago, he won an insanity acquittal for a former law student accused of two counts of murder. He says his client is "absolutely innocent."
CA Court of Appeals: Reversal of Pedophile Priest Conviction based on Prosecutorial Misconduct in Closing
9th Circuit: Can't Punish Homeless for Sleeping on Streets.
April 19, 2006
Appealing for the Dead: What Happens When a Defendant Dies While an Appeal is Pending?
The Maryland Court of Appeals ruled that when a defendant dies, the conviction is not automatically vacated, as some states hold, and that the appeal is not automatically dismissed, as other states hold. Instead, the appeal can continue, and the status of the conviction will depend on the determination on appeal. [Jack Chin]
Cynthia McKinney and the Police
Representative Cynthia McKinney is being investigated by a grand jury for shoving or hitting a Capitol Police Officer who, claiming not to recognize her, physically prevented her from going around a metal detector. Of course, she should not have done that. But I was struck by the similarity of that case to a Newsweek My Turn column written by an African American female MD, who is continually suspected by patients of not being a real doctor. Remember when the police allegedly got rough with African American astronaut Dr. Mae Jemison? Has anyone heard of a Capitol Police Officer physically stopping a white male who went around the metal detector who turned out to be a Member of Congress? [Jack Chin]
Article on Appellate Issues in Governor Ryan's Convicton
2d Circuit Grants Habe Based on Informal Plea Allocution
NAACP Calls for More Diversity in Police Lineups
Story here. [Mark Godsey] p.s. It's a joke, of course.
SCOTUS Debates Right to Counsel: the "My Cousin Vinny" Argument
It is not often that the movie "My Cousin Vinny," or any movie, for that matter, is invoked during a Supreme Court argument. But yesterday, the 1992 movie about a personal injury lawyer from Brooklyn who represents a relative in a murder trial in Alabama seemed right on point. The question before the Court: How important is the right of paying defendants to be represented by the lawyer of their choice?
Quite important, bordering on fundamental, seemed to be the answer of most justices. A majority appeared to agree that even if a defendant picks a lawyer who is an inexperienced relative (as in the movie) or a lawyer determined to make an outlandish argument, that is the defendant's constitutionally protected right. In the case before the Court, a Missouri federal trial judge barred the first-choice California lawyer of drug-conspiracy defendant Cuauhtomec Gonzalez-Lopez, leaving him with a St. Louis lawyer who had never argued a criminal case, and lost. The 8th U.S. Circuit Court of Appeals tossed Gonzalez-Lopez's conviction, ruling that the judge's improper exclusion of the first lawyer amounted to a structural defect that warranted automatic reversal of the conviction. The case is United States v. Gonzalez-Lopez. More. . . [Mark Godsey]
Willamette CrimProf Green Wins Scholarship Award
press release here. [Mark Godsey]
Chicago's MacArthur Center Moves to Northwestern
From a press release:
CHICAGO --- Two nationally recognized leaders in criminal justice reform will join forces this June when the MacArthur Justice Center moves from the University of Chicago to Northwestern University School of Law’s Bluhm Legal Clinic.
“The addition of the MacArthur Justice Center will make the Bluhm Legal Clinic’s national voice for juvenile and criminal justice reform and human rights even stronger,” said Thomas Geraghty, associate dean for clinical education, professor and director of the Bluhm Legal Clinic at Northwestern. “And the same goes for the educational program for our students.”
After the MacArthur Justice Center -- including legal director Locke Bowman, trial attorney Joe Margulies and two support staff -- moves to Northwestern, at least 16 more law students will be able to work in the clinic each semester.
Housed together, the two organizations will alternately complement and augment each other’s efforts. The MacArthur Center focuses on civil litigation that raises issues in criminal justice with the objective of achieving systemic reform, and the individual criminal cases that the Bluhm Legal Clinic has brought to the national forefront shed light on the need for such reform.
The work of MacArthur’s Bowman primarily involves police misconduct, compensation for wrongful convictions and rights of the indigent to effective defense service. Margulies’ work focuses on issues related to civil liberties implications of the war on terror. He is a leader in efforts to win access to the federal courts for those imprisoned at Guantánamo Bay.
The Bluhm Legal Clinic is home to the Center on Wrongful Convictions, whose work has helped to reshape the death penalty debate and led to major reforms; the Children and Family Justice Center, a leading advocate against coercive interrogations that lead to false confessions; and the Center for International Human Rights. The clinic has done extensive work improving the conditions of the Cook County Juvenile Detention Center and undertaken studies of public defender organizations throughout the country.
“The Bluhm clinic will help the MacArthur Center identify issues to make the system more fair, accurate and efficient,” Geraghty said. He mentioned improvements in procedures for taking statements from witnesses and suspects, in eyewitness identifications and in access to and quality of forensic science, defense and social services.
The death penalty case of Leroy Orange, who was represented by the Bluhm Legal Clinic, hints at the synergy that already exists between the two organizations. The clinic argued that Orange was tortured by two Chicago police officers from Area Two and eventually got him pardoned. The MacArthur Justice Center then took a petition with a number of prisoners’ allegations about systemic prisoner torture at Area Two to the chief judge of the criminal court. The MacArthur attorneys argued for a grand jury investigation of what went on at Area Two and persuaded the court to appoint a special prosecutor.
The move of the MacArthur Justice Center to Northwestern was motivated by the prospect of enhancing such synergy and collegial relations, Bowman said. “We couldn’t be happier,” he said. “We’ve admired the wonderful clinical work being done at Northwestern for years.”
At the same time, the MacArthur Justice Center will have its own board of directors and continue to maintain its independence. Its funding will continue to come from the J. Roderick MacArthur Foundation, named for a Chicago businessman and son of philanthropists John D. and Catherine T. MacArthur.
The foundation set up the center in 1985 as a nonprofit, public-interest law firm to fight for human rights and social justice through litigation.
Rick MacArthur, son of the late J. Roderick MacArthur and a member of the foundation board, grew up on Chicago’s North Shore. During high school, MacArthur attended his first criminal trial, where he saw Geraghty earn an acquittal for an alleged gang leader charged with mob action for organizing a march to protest Chicago police behavior. The impression has endured.
“All these years later, it seems fated and emotionally right that we’d end up formally affiliated,” MacArthur said.
Even as the MacArthur Justice Center takes on work that has national as well as global significance, its focus will be on Chicago and Cook County. “That is where we are from and where we feel a particular responsibility,” MacArthur said. “And the Bluhm Clinic will help us maintain that focus.”
The MacArthur Justice Center is expected to be fully operational at Northwestern for the start of the 2006–07 academic year.
“We are going to have an unparalleled community of practitioners and scholars in criminal justice reform working closely on a daily basis to identify and undertake projects that will improve the way our courts, prisons and police departments operate,” Geraghty said. “In the process, our students will get unparalleled hands-on experience in representation of clients adversely affected by the problems in our juvenile and criminal justice systems. And our students will have great opportunities to participate in policy formulation in those areas.”
April 18, 2006
NY: Admissibility of Confession Evaluated
Story here from NYTimes. [Mark Godsey]
Grand Jury Indicts Two Duke Lacrosse Players
Story here from MSNBC. The player who sent the email was not among the two indicted players. [Mark Godsey]
Amendments to the Federal Rules of Procedure
Here are the latest amendments to the federal rules of procedure (appellate, criminal and evidence). They were issued by the Supreme Court on April 12 and will become effective on December 1, unless Congress overrides any of them in the meantime. The Evidence Rule changes
include alterations to Rules 404 and 609. The main Appellate change is a repeal of all local rules which prohibit the citation of non-precedential opinions (doesn't make them precedential, but bars any prohibition against citing them appropriately as persuasive authority). The main criminal rules amendments allow electronic transmission of warrants; and allow, describe and regulate warrants
for the installation of tracking devices. [Mark Godsey]
SCOTUS: Grants Cert. in Two Criminal Cases
Here are the questions presented in the cases, from U.S. Law Week.
Carey v. Musladin, No. 05-785: In the absence of controlling Supreme Court law, did the Ninth Circuit exceed its authority in granting a habeus petition and overturning a defendant's state conviction of murder on the ground that spectators in the courtroom included three family members of the victim who wore buttons depicting the murder victim?
United States v. Resendiz-Ponce, No. 05-998: Can the omission of an element of a criminal offense from a federal indictment accusing a defendant of attempting to re-enter the United States illegally after having previously been deported, but that did not allege any specific overt act that was a substantial step toward re-entry, constitute harmelss error? [Mark Godsey]
New Orleans: "Doing Katrina Time"
Here is an update about the criminal justice system in New Orleans. District Judge Arthur Hunter has suspended the prosecution of cases in which the defendants are represented by the public defender system. The system, underfunded before Katrina, has been left to handle six times the normal full-time case load. To make matters worse, since Katrina the system's funding through traffic tickets has evaporated and the the number of lawyers fell from 42 to 10. More. . . [Mark Godsey]
April 16, 2006
New Article Spotlight: The Political Economy of Entrapment
CrimProf Richard McAdams of Illinois has posted The Political Economy of Entrapment on SSRN. Here's the abstract:
The entrapment defense is the primary legal regulation of undercover operations. Though courts and commentators say that the state should not punish an undercover defendant who does not offend outside such operations, no existing theory fully justifies this principle or the defense (without calling into question basic commitments of American criminal law): (1) Under retributive theory, the entrapped are blameworthy, given that a defendant who succumbs to the same temptation from a private party is blameworthy. (2) Fairness theories fail to justify the defense, given that existing law refuses to recognize unfairness in particular distributions of criminal temptations or in selective law enforcement. (3) Existing institutional theories fail to explain the precise political danger of entrusting officials with the power of undercover operations, given that targets can refuse criminal opportunities. (4) Among other problems, existing economic theories rest on a untenable dichotomy between "true" offenders who commit crimes outside of undercover operations and "false" offenders who don't.
The paper reconstructs the latter two theories, overcoming existing weaknesses to fully justify the defense. The institutional theory rests on the high degree of fortuity to an individual's legal compliance, the state manipulation of which creates a serious risk of political abuse. The economic theory arises from the need to correct a principal-agent problem that motivates police to favor unproductive tactics yielding high numbers of low value arrests (even if the resulting offenders are not false). These theories reveal that the normative consensus is misguided; the defense should not be conceived as a way of protecting individual defendants who do not offend outside undercover operations. The two rationales point to the desirability of tailoring a specific entrapment defense to each crime, but the paper also describes the best unitary defense.
Obtain paper here. [Mark Godsey]
This Week's Top 5 Crim Papers
This week's top 5 crim papers, with number of recent downloads from SSRN, are as follows:
|(1)||179||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)||110||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
|(3)||102||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
|(4)||74||Sexual Punishments |
University of Utah - S.J. Quinney College of Law ,
Date posted to database: February 21, 2006
Last Revised: March 1, 2006
|(5)||71||An Economic Analysis of State and Individual Responsibility under International Law |
Eric A. Posner, Alan O. Sykes,
University of Chicago Law School, University of Chicago Law School,
Date posted to database: February 16, 2006
Last Revised: April 13, 2006