Friday, April 28, 2006
The University of Colorado police closed down the field where the annual smoke-in was to be held, posting signs, barricades and ushers to keep the kids out. The signs even warned that video surveillance was in use. Well, it was. Now, the University is offering rewards for the identities of those who crossed the line and lit up. Now, I think it would be hard to charge them with possession; the evidence is up in smoke, and it is hard to identify marijuana from a photograph--it could be tobacco. But, they surely could charge them with trespass based on a photo, and it looks like they will. (Thanks to BoingBoing).
Hindsight is 20-20, I guess, but this class project seems ill-concieved. A prof at Northern Kentucky University urged her students to destroy a series of crosses placed on campus by a right to life group. The students and faculty member did it, were arrested, and now face criminal charges.
Texas CrimProf Samuel Buell has posted the above titled-paper on SSRN. Here's the abstract:
Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. Reputational effects can flow through to individuals in ways that reduce probability of future wrongdoing by altering individual preferences and forcing reevaluation and reform of institutional arrangements. Blame and utility are closely connected here: the impulse to blame organizations and the beneficial effects of doing so both appear to depend on the degree of institutional influence on the agent.
These insights imply that the doctrine should be tailored, unlike present law, to more fully exploit criminal law's expressive capital by selecting cases according to entity blameworthiness. Barriers to describing the phenomenon of organizational influence and culture prevent discovery of a first-best rule of institutional responsibility. A second-best step would be to enhance the existing doctrine's examination of agent mens rea, to impose fault only if the agent acted primarily with the intent to benefit the firm.
Obtain paper here. [Mark Godsey]
Thursday, April 27, 2006
A priest, "Michael F.", convicted of abusing a youthful male parisoner, had his conviction reversed because his statement that he was struggling with homosexuality, made to the police att he time of his arrest, was admitted in his criminal trial. A three-judge panel of the Appellate Division concluded: "The admission of this statement injected into this case the specter of a jury deciding defendant's guilt on the unfounded association between homosexuality and pedophilia. Moreover, defendant's fear that the statement would be used to draw unwarranted conclusions was realized when the judge reminded the jury that defendant stated that he was homosexual."
Another interesting passage in a NJAD decision caught my eye: said the court: "In a brief, which was
unnecessarily lengthy, defendant advances ten errors allegedly committed by the trial court during defendant's Cape May County jury trial. The excessively wordy and repetitive 104 page "brief" made it more difficult for us to discern whether defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made that require reversal of defendant's conviction and a new trial." Well, as a former law clerk I am sympathetic to the court's irritation with a prolix brief. On the other hand, as a former appellate defender, I can't help but notice that the wordy and repetitive brief won; somehow the advocate caught the court's attention. Counsel must have been doing something right. [Jack Chin]
From NPR: All Things Considered, April 26, 2006 · The Supreme Court hears arguments on what condemned inmates can do to challenge their method of execution. The Florida case centers on whether an inmate should get a federal court hearing on his claim that the lethal-injection method causes unnecessary pain. Listen to story here. [Mark Godsey]
Wednesday, April 26, 2006
A Florida man convicted of felony murder based on injecting store-bought silicone into people who wanted cut rate, amateur plastic surgery was convicted of murder when one "patient" died. The Florida District Court of Appeals reversed the conviction, holding that a doctor's testimony that the silicone inections led to death was insufficient. Story here, opinion here.
LSU CrimProf Stuart Green has a new book, entitled Lying, Cheating, and Stealing : A Moral Theory of White Collar Crime. Here's the amazon.com description:
The picture of crime that dominates the popular imagination is one of unambiguous wrondoing--manifestly harmful acts that are clearly worthy of condemnation. The accompanying picture of the criminal--the thief, the murderer--is a picture of society's failures--to be cast out and re-integrated through a process of punishment and penance. Our understanding of white-collar crime, by contrast, is pervaded by moral and imaginative ambiguity. Such crimes are often commited by society's success stories, by the rich and the powerful, and frequently have no visible victim at their root. The problem of marrying these disparate pictures has led to a confusion of the boundaries of white-collar cime. How is it possible to distinguish criminal fraud from mere lawful "puffing," tax evasion from "tax avoidance," obstruction of justice from "zealous advocacy," insider trading from "savvy investing," bribery from "log rolling," and extortion from "hard bargaining"? How should we, as scholars and students, lawyers and judges, law enforcement officials and the general public, distinguish the lawful from the unlawful, the civil from the criminal?
In the first in-depth study of its kind, Stuart Green exposes the ambiguities and uncertainties that pervade the white-collar crimes, and offers an approach to their solution. Drawing on recent cases involving such figures as Martha Stewart, Bill Clinton, Tom DeLay, Scooter Libby, Jeffrey Archer, Enron's Andrew Fastow and Kenneth Lay, HealthSouth's Richard Scrushy, Yukos Oil's Mikhail Khodorkovsky, and the Arthur Andersen accounting firm, Green weaves together what at first appear to be disparate threads in the criminal code, revealing a complex and fascinating web of moral insights about the nature of guilt and innocence, and what, fundamentally, constitutes conduct worthy of punishment by criminal sanction. Green argues that white-collar crime is best understood through a framework of everyday moral concepts that include not only lying, cheating, and stealing, but also coerction, exploitation, disloyalty, promise-breaking, disobedience, and other forms of deception. In the process, he reveals the essentially moral fabric underlying the legal category of white-collar crime. [Mark Godsey]
Tuesday, April 25, 2006
From BNA.com: The U.S. Supreme Court April 25 decided one case related to the criminal justice system. In Day v. McDonough, No. 04-1324, the court held that a federal district court has discretion to dismiss a habeas corpus petition sua sponte for failing to comply with the one-year statute of limitations set by the Antiterrorism and Effective Death Penalty Act even if the state has answered the petition without contesting the issue of timeliness.
Colin Finnerty got diversion in a D.C. assault case, but he failed to not get rearrested. So, he's going to trial. I think this kind of condition is very unfair--a person can get arrested for any reason. Even if there's PC, it does not mean Finnerty did anything wrong. A condition that the person not commit any crimes, that would be fine, but it is not fair to create a condition which is beyond the control of the defendant. [Jack Chin]
Story here. The tainted evidence: Bullet lead analysis and voice analysis; according to the story, "the FBI ordered agents not to hand over lab reports showing it was not possible to make a definitive match using the technology available." The defendant had filed numerous unsuccessful appeals over the years.
This Dallas Morning News article in which Minnesota CrimProf Kevin Reitz is quoted describes two probationers supervized by the same judge. One was convicted of robbery, got probation, failed a drug test and was resentenced to life. The other was convicted of murder, failed five drug tests while on probation and was given reduced conditions of probation.
April 25 Symposium to Explore Victims’ Interests vs. Defendants’ Rights in Upcoming Trial of Khmer Rouge Leader
Newark, NJ, April 21, 2006 – International criminal tribunals for human rights violations increasingly grant the desire of victims to participate at some level in the trial process. Balancing the recognized interests of victims with the rights of defendants to a fair trial raises significant practical and legal challenges.
On Tuesday, April 25, at Rutgers School of Law-Newark, specialists in international law, comparative law, evidence and procedure, and international criminal procedure as well as Cambodian experts will examine the extent to which victims will have a role in the upcoming trial of senior Khmer Rouge officials for the death of at least 1.7 million Cambodians. “The Extraordinary Chamber of Cambodia/The Khmer Rouge Tribunal: Balancing Victims’ Needs Against Defendants’ Rights” is co-sponsored by the law school’s Global Legal Studies program, the International Center for Transitional Justice, and the Documentation Center of Cambodia (DC-Cam). Rutgers-Newark hosts the U.S. office of DC-Cam. In addition to representatives from the co-sponsoring organizations, the program will include the following speakers:
Who: Dr. Widhya Chem, Permanent Representative of the Kingdom of Cambodia to the United Nations
David Hutchinson, Office of Legal Affairs,United Nations
Dr. Kelly Dawn Askin, Open Society Justice Initiative
Professor Jaya Ramji, Georgetown University Law Center and advisor to the Documentation Center of Cambodia
Professor Roger Clark, Rutgers School of Law-Camden
Professor Beth Stephens, Rutgers School of Law-Camden, a Center for Constitutional Rights (CCR) cooperating attorney
Socheata Poeuv, journalist and independent filmmaker
What: “The Extraordinary Chamber of Cambodia/The Khmer Rouge Tribunal: Balancing Victims’ Needs Against Defendants’ Rights”
When: 8:30 am – 5:30 pm, Tuesday, April 25, 2006
Where: Rutgers School of Law-Newark
Contact: Janet Donohue, Manager of Public Relations, t: 973-353-5553, f: 973-353-1717, or [email protected]
Monday, April 24, 2006
Ohio State CrimProf Joshua Dressler has posted Battered Women and Sleeping Abusers: Some Reflectionson SSRN. Here's the abstract:
This Commentary focuses on one form of "non-confrontational homicide" - when a victim of abuse kills her abuser while he is asleep or otherwise in a passive condition. Should such a killing be treated as justifiable, excusable, or punishable?
The thesis of this paper is that the proposition that such a homicide is morally justifiable and that the traditional law of self-defense should be expanded to incorporate such cases is wrong-headed. Moreover, defense use of battered woman syndrome evidence obscures the real basis of any self-defense claim and tends to pathologize, rather than justify, the battered woman. Instead of expanding self-defense law to justify such killings, and rather than return to the old strategy of fitting such killings under the excuse umbrella or insanity or diminished capacity, criminal defense lawyers and legislative reformers should seek to defend non-confrontational battered-woman homicides on the excuse basis of duress as defined by the Model Penal Code.
To obtain a copy of the paper, click here. [Mark Godsey]