June 17, 2006
New Article Spotlight: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant
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 16, 2006
CrimProf Spotlight: Professor Sadiq Reza
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 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]
Crim Prof Brigette Siff Holmes named "Lawyer of the Year"
Crim 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]
Crim 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]
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 Ginsburg. More. . . [Mark Godsey]
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]
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 Cole. More. . . [Mark Godsey]
Lethal Injection as a Cruel and Unusual Punishment
From NPR.com: This week the Supreme Court decided Hill v. McDonough and opened the door to new constitutional challenges to lethal injection. In the unanimous opinion written by Justice Kennedy, the court said those condemned to die can make last-minute claims that the chemicals used are too painful, and that their use is tantamount to cruel and unusual punishment.
Thirty years ago, death by lethal injection was conceived of as a more humane way to execute the condemned; 37 states now use that method -- all but one of the states that administers capital punishment.
But the lethal cocktail that is used has not changed, and critics charge that unnecessary suffering is caused by the drug combination and the lack of training for those who administer it. More. . . [Mark Godsey]
June 13, 2006
DEA Offers Law Enforcement A Course on Meth
From baltimoresun.com: Two Maryland sheriff's deputies spent a week learning how to cook methamphetamine on a Marine Corps base as part of an effort by the U.S. Drug Enforcement Administration to train authorities across Maryland and other states to identify, dismantle, and secure clandestine meth labs.
Since the labs can be highly toxic and volatile, federal drug officials believe that local authorities nationwide need to know how to recognize and contain them. This fiscal year, 15 students from Maryland have been certified by the DEA meth lab experts by completing the week long meth course at Quantico. More. . . [Mark Godsey]
FBI Reports Violent Crime is on the Rise
From STLtoday.com: According to crime figures released by the FBI on Monday, the nation saw a 2.5 percent increase in violent crime: murder, rape, robbery and assault. Murder alone increased by 4.8 percent in the past year.
The 12-state Midwest region fared even worse, with reports of violent crime rising by 5.7 percent. Some criminologists pointed to higher unemployment rates in the region. For example, Detroit, Minneapolis and Milwaukee each saw reports of violent crime jump by about one-third. In St. Louis, police Chief Joe Mokwa said assaults continued to climb during the first five months this year.
After steep declines in U.S. crime during the 1990s, followed by five years of unevenly middling results, 2005 marked the first year that reports of crime increased uniformly across U.S. cities, said Richard Rosenfeld, a criminologist at the University of Missouri at St. Louis. More. . . [Mark Godsey]
Drake University Law School Crim Prof Elected to be an American Law Institute Member
The American Law Institute recently selected David McCord, Drake University Law School Crim Prof, to its prestigious membership.
The Institute is a national organization which allows members by election only. The group's 2,700 members include judges, lawyers and law teachers from all areas of the United States as well as some foreign countries. Members are selected on the basis of professional achievement and demonstrated interest in the improvement of American law.
McCord is a nationally recognized expert on criminal law, evidence and the death penalty. He earned his Doctor of Jurisprudence cum laude from Harvard Law School and his bachelor's degree summa cum laude from Illinois Wesleyan University. He has served as a Drake professor since 1984. Before his time in the classroom, McCord was an assistant attorney general for the state of Arizona and a member of the Wentworth & Lundin law firm in Phoenix. [Mark Godsey]
NSA Wiretap Reveals Subject Paying Too Much for Long Distance
The Onion.com has the story here. [Mark Godsey]
June 12, 2006
Supreme Court Expands DNA Evidence Permissibility During Post Conviction Appeals
From washingtonpost.com: The Supreme Court today expanded the ability of death row inmates to challenge their convictions in federal courts based on DNA evidence produced long after their trials. The 5-3 ruling was the first by the high court to consider post-conviction appeals in the context of the evidentiary revolution produced by the new technology of DNA analysis.
Peter J. Neufeld, representing the Innocence Project, Inc., hailed the ruling as a breakthrough for similar cases involving DNA tests, noting that so far 180 convictions have been proven wrong based on post-conviction DNA analysis.
Justice Anthony M. Kennedy, writing for the court, said the lower court had placed too great a burden on the defendant. The court's function, he wrote, "is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." Rather than requiring "absolute certainty" of innocence, Kennedy wrote, the defendant only needed to "demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt."
Justice Kennedy was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Chief Justice John G. Roberts Jr., dissented from the core holding of the court, and was joined by Justices Antonin Scalia and Clarence Thomas. Justice Samuel A. Alito Jr., who had not yet joined the court when the case was argued, did not participate. More. . . [Mark Godsey]
New Article Spotlight: Meta-Blackmail
University of Tulsa College of Law Crim Prof Russel Christopher has posted the above-titled article on SSRN. Here is the abstract:
Blackmail remains one of the most difficult, and unsolved, puzzles in all of law. While nearly all endorse blackmail's criminalization, no one can explain why it should even be a crime. By introducing the novel concept of meta-blackmail, this Article explains why the puzzle of blackmail - it can be a crime to conditionally threaten to do what one has a right to do - cannot be resolved. While a conventional blackmail proposal backs a demand for money with the threat to disclose the recipient's embarrassing secret, a meta-blackmail proposal backs a demand for money with the threat to blackmail the recipient. Thus, conventional blackmail threatens a lawful act (e.g., disclosure of an embarrassing secret), but meta-blackmail threatens an unlawful act - blackmail itself. The comparative assessment of meta-blackmail and conventional blackmail reveals a trilemma: (i) since meta-blackmail threatens an unlawful act, meta-blackmail is a more serious level of criminality; (ii) since both meta-blackmail and conventional blackmail, in effect and function, demand money for nondisclosure of an embarrassing secret, they are equivalent; and (iii) since threatening blackmail should be less serious than actually committing blackmail, meta-blackmail is less serious. The trilemma, which is best resolved by decriminalizing blackmail, demonstrates that criminalizing blackmail violates a number of intuitions that are more compelling than the intuition that blackmail is properly criminalized. To preserve the more valued intuitions, blackmail should be decriminalized.
To obtain paper, click here
ABA Accessment Team Finds Flaws in Alabama Death Penalty System
According to a recent report by Alabama-based ABA Accessment Team, chaired by University of Alabama School of Law Crim Prof Dan Filler, the state of Alabama has failed to meet the standard of doing everything humanly possible to ensure the decision is fair and to minimize the risk of error minimize the risk of error before deciding to take a human life.
This conclusion is based on an assessment of 79 American Bar Association criteria that provide guidance as to how to create a more fair and accurate death penalty system. The Alabama assessment is the second of 16 such reviews being conducted by the American Bar Association and teams based in these states.
Of the 79 ABA assessment criteria, Alabama fully complies with only four, and partly complies with 14. It fails to comply with another 37. Because the review was undertaken without official state participation, it was impossible to determine whether Alabama complies with 24 other measures. Two were inapplicable. With 193 inmates sitting on Alabama's Death Row, the flaws found by the assessment must be addressed. More. . . [Mark Godsey] full report
June 11, 2006
New York Proposal Allowing Racial Profiling
Recently proposed New York legislation would allow law officers to consider race and ethnicity in identifying potential terrorism suspects. The legislation is supported by politicians from both parties and opposed by the New York Civil Liberties Union.
The proposed legislation would authorize law enforcement officials to "consider race and ethnicity as one of many factors that could be used in identifying persons who can be initially stopped, questioned, frisked and/or searched."
The proposed bill drew a response from New York Civil Liberties Union Executive Director Donna Lieberman. "Racial and ethnic profiling has been shown time and time again to be not only anathema to principles of equality, but it's bad law enforcement," said Lieberman. More. . . [Mark Godsey]
This Week's Top Five Crim Papers
|(1)||166||The Poverty of the Moral Stimulus |
Georgetown University - Law Center,
Date posted to database: April 19, 2006
Last Revised: April 27, 2006
|(2)||151||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)||146||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
|(4)||125||The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence |
University of California, Berkeley, School of Law (Boalt Hall),
Date posted to database: April 19, 2006
Last Revised: May 3, 2006
|(5)||120||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
Dallas Police Chief Attempts to Improve Department Image by Cleaning House
Last week, Dallas Police Chief David Kunkle launched his department housecleaning effort with the firing of two sergeants and three officers who had been accused of misconduct. The chief says he's determined to improve the department's troubled image and show the rank and file that no officer is above the law.
Since the begining of the effort, Chief Kunkle fired four more officers. Two are accused of driving drunk. One allegedly exposed himself to a woman. One didn't tell his superiors about a colleague's threats to embarrass a TV reporter. More firings are expected this week.
Each employee can appeal his or her discipline through the civil service system, but a recent city charter amendment which allows disciplinary action to be upheld "if a reasonable person could have taken the same disciplinary action against the employee" will probably make it harder for employees to get their firings or discipline overturned. More. . . [Mark Godsey]