January 21, 2006
Why aren't Websites Listing Escorts Guilty of Facilitation
Or some other crime? This MSNBC story on rating and contact sites for "escorts" is on thin ice, I would think, yet operates openly. There may be some special federal statute or something that protects internet site operators in this context, but it would seem to constitute facilitation. See, e.g., this North Dakota statute: "12.1-06-02. Criminal facilitation 1. A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided. The ready lawful availability from others of the goods or services provided by a defendant is a factor to be considered in determining whether or not his assistance was substantial. This section does not apply to a person who is either expressly or by implication made not accountable by the statute defining the felony facilitated or related statutes." [Jack Chin]
Oregon Criminal Bench Book Available Online
Potential Visit at William Mitchell
William Mitchell College of Law in St. Paul, MN is looking for visitors for next fall in the following areas: Property, Business (APLLC, Corporations), Contracts, Torts, Criminal Procedure, Evidence, Civil Procedure, and Estates & Trusts. Please contact Professor Ann Iijima if you'd like more information.
Yale Information Society Fellowship Announcement
The Yale Information Society Project is offering fellowships, which are for people looking to teach in law and technology areas (including IP, cyberlaw, telecom, mass media law, biotechnology law, and the first amendment). http://islandia.law.yale.edu/isp/fellowship2006.html The deadline is coming up soon-February 1, 2006.
Pathologist Wecht Indicted
For using government resources for personal gain. He has made high six figures per year in his personal forensic practice.
January 19, 2006
2nd Cir: Judge Criticizes Federal Mandatory Minimums
Forced to impose a sentence he deemed unjust, Northern District of New York Judge David Hurd harshly criticized the federal statute, 21 U.S.C. §846, that required him to impose a life-without-parole term on a 32-year-old "relatively small-time drug dealer" with an IQ of 72. Judge Hurd said child rapists and murderers will go free on parole while Justin D. Powell languishes in prison for life. Powell was convicted of drug crimes twice during his teenage years, more than a decade before the instant offense. Because of those prior convictions, the sole sentencing option was life, Hurd said. According to 21 U.S.C. §846, the only way to escape the mandatory minimums is to provide "substantial assistance" to the prosecution. Story. . . [Mark Godsey]
Criminal Penalties for Refusing to Take a Breathalyzer Test?
From CNN.com: Reasoning that people who refuse to take breathalyzer tests when pulled over on suspicion of drunk driving often receive milder penalties than people who take the test, five states are seeking to pass bills to lengthen license suspensions or make it a criminal offense to refuse a breathalyzer test. These states include Ohio, Massachusetts and Rhode Island, where the percentages of people pulled over on suspicion of drunk driving who refuse the test are among the highest in the nation. Nationwide, an average of 25 percent of people pulled over refuse to take a breath test. More on potential harsher DUI laws. . . [Mark Godsey]
Loyola Los Angeles CrimProf Alexandra Natapoff is quoted in ESPN Magazine about the phenomenon of snitching--its unreliability, its use as a "get out of jail free" card, its use as a tool for turf takeovers. Natapoff has published a recent article on snitching found here.
Virginia CrimProf Richard Bonnie is quoted in AZCentral.com and UK's Guardian Unlimited, commending VA Gov. Mark Warner, a potential 2008 presidential candidate, for ordering DNA testing in old criminal cases after five people were found to have wrongfully convicted and for commuting a death sentence to life without parole after discovering that the DNA evidence had been improperly destroyed. [Mark Godsey]
Lesbian and Gay Law Notes
Ch*ld P*rn Big Business
International organized crime is interested. Wall Street Journal story here. There are also international efforts to stamp it out. Meanwhile, a scandal is brewing in the UK about whether sex offenders should be allowed to teach school; it centers on a teacher who accepted a "police caution" for viewing child porn.
January 18, 2006
5th Circuit Miranda Decision, "As Clear as Mud"
Four circuits require police to give explicit advice to defendants that they are entitled to counsel during interrogation, as part of the Miranda warning, while four other circuits do not. In a recent Texas death penalty case, the 5th U.S. Circuit Court of Appeals, which has required since 1968 that the defendant be "clearly informed" of a right to a lawyer during interrogation, decided it wants it both ways.
The circuit court rejected the Miranda challenge in the habeas corpus appeal of Allen Bridgers, saying that detectives' advice that Bridgers had the right to consult an attorney "prior to" questioning was adequate to convey that he was entitled to have an attorney before questioning, "and that this attorney could remain during questioning," according to Judge Fortunado Benavides. Bridgers v. Dretke, No. 05-70020. But in a footnote, Benavides said that the circuit would continue to apply its 37-year-old precedent to direct appeals that "a suspect must be explicitly warned that he has the right to counsel during interrogation." U.S. v. Atwell, 398 F.2d 507 (1968)...The Atwell court stated that telling the accused that he or she is entitled to consult an attorney "at any time" does not comply with Miranda v. Arizona, 384 U.S. 436 (1966)...When Bridgers was arrested, an officer warned him, "You have the right to the presence of an attorney/lawyer prior to any questioning. Do you understand?" Bridgers indicated he did. He gave a tape-recorded confession that the defense sought to suppress based on the failed claim of an inadequate Miranda warning."
The court's mixed message of adhering to Atwell, while maintaing that the officer's pre-interrogation warning was adequate to convey that Bridgers was entitled to have an attorney prior to questioning, leaves the decision "as clear as mud." Story from the National Law Journal. . . [Mark Godsey]
"Prisoner Slims Down and Out" of Prison
Robert Cole, a prisoner serving in Sydney, Australia's maximum security Long Bay prison, escaped prison by relentlessly dieting until he could slip through a crack he etched between the outer brick wall and metal prison window bar. In total, authorities estimate that he lost about 30 lbs. He's still missing, and locating him will be especially challenging. After all, when he turns sideways, he disappears. Scroll down to the "Down and Out" link from CNN.com to watch the video. [Mark Godsey]
Death Penalty News
California: In the face of evidence that more than 121 people who sat on death rows around the country were actually innocent of the crimes for which they were convicted, a non-partisan group of 40 law enforcement officers, current and former prosecutors, and state and federal judges are urging California lawmakers to enact a temporary halt to executions in the state while a commission examines the accuracy and fairness of the death penalty. Story. . .
Virginia: State legislators, who have lost family members to murder, spoke out in opposition to the death penalty during a state senate committee hearing on a bill to impose a moratorium on executions. Story. . .
NAACP: In a recent interview with The Washington Post, NAACP president Bruce C. Gordon called for a halt to executions, in every state, while questions of accuracy and fairness are addressed--specifically disparate statistics such as African Americans representing 10 percent of the general population and 42 percent of the population on death row. Story. . . [Mark Godsey]
Mom Helps Baby's Killer Go Free
When her infant son was murdered in his crib in 1991, Jennifer Watts couldn't believe that her boyfriend did it, even though no one else was in the house at the time. She testified for him, and he was acquitted. A few months ago, he confessed to the police, but double jeopardy prevents another trial. Story here. [Jack Chin]
New Article Spotlight: The Paradox of Circumstantial Evidence
Georgia CrimProf Kevin Jon Heller has published the draft "The Paradox of Circumstantial Evidence" on SSRN. The abstract: Empirical research indicates that jurors routinely overvalue direct evidence (eyewitness identifications, confessions) and undervalue circumstantial evidence (DNA, fingerprints, etc.) when making verdict choices, even though false-conviction statistics indicate that the latter is actually far more reliable than the former. The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology as the "Wells Effect": the puzzling fact that jurors are likely to acquit in circumstantial cases even when they know the objective probability of the defendant's guilt is sufficient to convict.
This speculative Article attempts to explain why jurors find circumstantial evidence so psychologically troubling. Drawing on a wide variety of psychological research into judgment and decision-making - Kahneman & Tversky's simulation heuristic in particular - it argues that jurors decide whether to acquit in a criminal case not through mechanical probability calculations, but on the basis of their ability to visualize a scenario in which the defendant is factually innocent. The article then examines the basic epistemological differences between direct and circumstantial evidence and shows how those differences normally make it easier for jurors to visualize a factually-exculpatory scenario in circumstantial cases. Finally, the Article concludes by discussing how an ease-of-simulation model of jury decision-making improves our understanding of how and why false verdicts occur." Draft here: http://papers.ssrn.com/paper.taf?abstract_id=869547
January 17, 2006
Joey the Clown: A Must-See Picture
If you need a laugh, please click on this story from CNN.com to look at mob boss Joey the Clown's picture. He lived up to his name by busting out wisecracks in court as he pled not guilty to conspiring in the murders of 18 people. I can see him cracking a joke or two. [Mark Godsey]
AZ State Police to Enforce Federal Immigration Laws on Criminal Trespassing Theory
Study: Prison Rape Rare
A new report of ideosyncratic methodology concludes that prison rape is rare. “Prison rape worldview doesn’t interpret sexual pressure as coercion,” the author explained. “Rather, sexual pressure ushers, guides or shepherds the process of sexual awakening.” Story here.
MA: state can Pull Plug on Future Murder Victim
A youg girl in a persistent vegetative state can be removed from life support, says the Massachusetts SJC. That means that her stepfather, implicated in her death, might be subject to murder charges. Story here, opinion here. [Jack Chin] Update: She's responding to stimuli; no plans to remove artificial feeding.
Al Gore on Warrantless Wiretaps