CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, October 28, 2006

NYU New Book Alert: Reconstructing the Fourth Amendment

BookThe NYU Press recently released a New Book Alert reviewing Andrew E. Taslitz's new book "Reconstructing the Fourth Amendment."  here are the reviews:

"Reconstructing the Fourth Amendment is a remarkable scholarly accomplishment. It presents one of the most radical challenges to standard constitutional thinking--not just about searches and seizures but also about the interpretation of the Fourteenth Amendment as a protection of individual rights--in recent literature. Andrew Taslitz stakes out a radical and compelling position on a pressing contemporary issue--the protection of individual privacy against government invasion--and does so on impeccably researched and intellectually conservative grounds. It is a must read."
—H. Jefferson Powell, author of A Community Built on Words: The Constitution in History and Politics

"Taslitz's analysis provides a unique vision of the Fourth Amendment's purpose: to tame political violence from governmental officials, while forcing officials to treat each individual with respect and dignity. Taslitz's research on the search and seizure practices of Southern states during Reconstruction is illuminating and strengthens his thesis that respect for the individual lies at the core of the Fourth Amendment."
—Tracey Maclin, Professor of Law, Boston University School of Law

"Fourth Amendment scholarship has hitherto emphasized the amendment's background and gestation, i.e., the period before its inception in 1789. Taslitz, however, has removed a critical gap in that scholarship by illuminating the amendment's development after 1789, through the ante-bellum and Reconstruction periods, until 1868. Taslitz breaks new ground by exploring the Fourth Amendment's connections with political violence and slavery. He introduces readers to the interpretative diversity of and among scholars who debate the amendment's original and current contents."
—William Cuddihy, author of The Fourth Amendment: Origins and Original Meaning, 602-1791

The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.

Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791—born in political struggle between the English and the colonists—served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.

With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police. Get the Book. . . [Mark Godsey]

October 28, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 27, 2006

CrimProf Spotlight: Stanislaw Frankowski

FrankowskiThis week the CrimProf Blog spotlights Saint Louis University School of Law CrimProf Stanislaw Frankowski. 

A well-respected authority on comparative law, Stanislaw Frankowski has authored and co-authored numerous articles and books — in English and in Polish — on subjects ranging from abortion and protection of the human fetus, to pre-trial detention, to the death penalty in postcommunist Europe. His book, Legal Responses to AIDS in Comparative Perspective, with 10 chapters written by legal scholars from five continents, is considered by many to be the most comprehensive review of legal responses to HIV/AIDS to date.

Professor Frankowski spent 2002 and 2003 on sabbatical completing the book, Introduction to Polish Law, and translating the Polish penal code into English.

Frankowski taught law at the University of Warsaw for nearly 20 years before martial law was imposed in 1981. He came to the United States and taught at the University of Santa Clara School of Law. He joined Saint Louis University School of Law in 1983. In 1992, he co-founded the School’s Center for International and Comparative Law. Through his efforts, the School’s law library shelves a premier collection of Polish legal publications that facilitate both the tracking of legal changes in Poland and current legal information for those interested in doing business in his homeland.

“Law doesn’t function in isolation,” Professor Frankowski says. “It’s grounded in politics and societies. It’s part of the larger picture, which comes out clearly when one adopts a comparative approach. Such an approach provides the most varied and enriching grasp of the spirit of the of the law.”

Professor Frankowski has been a fellow at the Max-Planck-Institute of Foreign and International Criminal Law in Germany and at the Criminal Law Education and Research Center at New York University School of Law. He has been a guest lecturer in many countries, including Germany, Poland, Holland and Mexico. [Mark Godsey]

October 27, 2006 in Weekly CrimProf Spotlight | Permalink | Comments (0) | TrackBack (1)

Thursday, October 26, 2006

DNA Frees Man After 15 years of Marriage

From Henry "Hank" Doswell, 42, was released from his marriage Wednesday, after DNA tests conclusively proved his innocence in the July 1991 fathering of Spencer Doswell, the solitary charge that has kept him committed for 15 years.

"Fifteen years, seven months, and two days," said Doswell, speaking to a group at the Red Room bar's Singles Night shortly after his release. "I always said they'd made a terrible mistake, that I did not deserve to be put away in the prime of my life, but no one believed me. If it hadn't been for this DNA test, I might have died in that monogamous relationship."

Though he feared he might never be able to break free of "the old ball and chain," Doswell always professed that being sentenced to a life of enforced fidelity was a "horrible injustice." But as each new anniversary seemed only to confirm his guilt, Doswell began to doubt he would ever be a free man again. Rest of Article. . . [Mark Godsey]

October 26, 2006 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Seattle Prosecuter Gets Caught Having Sex in Bathroom

From A Thurston County senior deputy prosecutor who was ejected from Qwest Field Sunday after employees said he was having sex in a bathroom told his boss he was just using the facilities.

King County Sheriff's Sgt. John Urquhart said two female employees told off-duty sheriff's deputies and Seattle police officers who were working security at the stadium during the Seahawks game that a man and woman were having sex in a bathroom stall.

"We didn't see them having sex but they were clearly in the same stall," Urquhart said of the couple, who told deputies they work together in the Thurston County Prosecuting Attorney's Office.

The man, a 39-year-old attorney, "had been drinking and was argumentative" with deputies, he said. Arrested for obstructing and trespassing, the man was interviewed and released, Urquhart said, explaining that it is "against the law for him to be in a women's restroom."

Rest of Article. . . [Mark Godsey]

October 26, 2006 in Sex | Permalink | Comments (1) | TrackBack (1)

CrimProf Michael Hoffheimer Discusses Depraved Heart Murder With Police Officer Dragging

Hoffheimer_1From University of Mississippi CrimProf Michael Hoffheimer discusses whether the actions of a University of Mississippi student in the dragging death of a campus police officer constitutes a "depraved heart" murder eventhough he was intoxicated.

Daniel Cummings, 20, of Germantown, Tenn., was arrested early Saturday morning, shortly after Officer Robert Langley was thrown to the pavement while trying to stop Cummings from driving away from a traffic stop on the Ole Miss campus, according to a Justice Court affidavit sworn by Lt. Walter Davis of MBI, the state's crime investigation agency.

Toxicology results would not likely change the charge, said Michael Hoffheimer, an Ole Miss criminal law professor. "Intoxication is not a defense to murder in Mississippi."

Hoffheimer said that given a lack of premeditated intent to kill a specific person, as MBI's Davis' affidavit contends, prosecutors would face a difficult challenge to prove murder, but it would still be possible, Hoffheimer said.

They "would basically have to prove that the defendant acted with a depraved heart with indifference to human life," he said, essentially the way Davis described the crime.

Rest of Article. . . [Mark Godsey]

October 26, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (1)

Wednesday, October 25, 2006

Debate Over Terminating Trooper Who Belonged to a Hate Group

From  A fired state trooper's link to a white supremacist group has placed Nebraska in the middle of a debate over individual rights and ensuring police fairness.

An arbitrator ruled in August that  state trooper Robert Henderson should get his job back, but officials at the State Patrol and capitol promise to fight, setting the stage for a courtroom battle this month in Lincoln. Both sides filed briefs in the court case on Friday.

A secret State Patrol investigation found that Henderson had joined the Knights Party, which has ties to the Ku Klux Klan. Henderson acknowledged his membership to investigators and admitted posting messages on the group's members-only Web site. He later resigned from the group and apologized to the State Patrol's commander before termination.

The state should prevail, said Mark Potok, director of the Intelligence Project, which has been tracking hate groups since 1981. "The law is clear on this," Potok said. "He can be fired for this."

Yet arbitrator Paul J. Caffera cited several court rulings that say public employees and law enforcement officers don't have to give up their Constitutional rights when they accept the job. He also faulted the State Patrol's internal investigation and said the agency didn't follow its contract.

Rest of Article. . . [Mark Godsey]

October 25, 2006 in Law Enforcement | Permalink | Comments (1) | TrackBack (0)

Cali Prosecutors Will Be Keeping Defendants Records Under Wraps

From California prosecutors are no longer releasing routine information about defendants, including their criminal histories and parole or probation status.

The change comes in the aftermath of a Sept. 20 legal opinion from Atty. Gen. Bill Lockyer that furnishing such information from law enforcement computer databases violates defendants' privacy rights

Taken together with a recent California Supreme Court decision restricting disclosure of police disciplinary records, the opinion significantly narrows the public's access to bedrock information about the criminal justice system. Rest of Article. . . [Mark Godsey]

October 25, 2006 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

CrimProf Evan Lee Discusses ACLU's Plan to Stop a Civil Gang Injunction

Lee_3From University of California Hastings College of Law CrimProf Evan Lee discussed the The American Civil Liberties Union's plan to challenge a civil injunction sought by The City of San Francisco to prevent members of a Bayview street gang from congregating and conducting gang activity in a specified area.

Next Monday, a San Francisco Superior Court judge will hear evidence regarding City Attorney Dennis Herrera’s requested injunction against the Oakdale Mob, which claims as its turf the four square blocks around Oakdale Avenue and Baldwin Court. The gang has been linked to murders, assaults, drug dealing, rapes, carjackings and robberies. Residents of the neighborhood live in fear for their safety and that of their families, police say.

Civil gang injunctions have been used to combat gang presence in neighborhoods in Southern California and elsewhere since the 1980s. In 1999, the U.S. Supreme Court, in Morales v. Chicago, struck down a civil gang injunction in Chicago on the grounds that it was too vague. That injunction prohibited loitering and defined it as, “to remain in any one place with no apparent purpose.”

The injunction sought by Herrera also would prohibit loitering, but it specifies, “loitering with the intent to commit a narcotics-related offense.” However, Herrera’s injunction also includes an order for gang members not to associate publicly, except in church or school, which may be too vague to pass Constitutional muster.

“What the ACLU’s going to argue is that that doesn’t give adequate notice to those people, suppose those associates include their mothers?” CrimProf Lee said Monday. “Suppose one of those mothers goes down to the complex for a PTA meeting, she could get picked up for that order.”

In the end, Lee said, the injunction’s constitutionality will be determined by the limits it places on the discretion of police. The less “carte blanche” police appear to have to make arrests, the less likely the possibility for civil rights to be violated and therefore the more constitutional the injunction will be seen as, Lee said. Rest of Article. . . [Mark Godsey]

October 25, 2006 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 24, 2006

FBI and Local Police Work Together to Stop Jewel Thieves

From FBI and local police are teaming up to combat a little noted but highly lucrative crime: robberies by gangs that target traveling jewelry and precious gem sales representatives.

Jewelry and gem salespersons reported 117 such robberies nationwide in the first nine months of this year, putting the industry on track for its lowest number of annual attacks since about 1990, according to a report by the industry group Jewelers' Security Alliance (JSA).

However, ripping off sales reps, who typically travel by car and carry hundreds of thousands of dollars worth of goods in small pieces of rolling luggage, remains a highly lucrative crime. The average theft this year has netted about $224,000. By contrast, the average bank robbery netted about $4,220 in 2004, the FBI estimated.

"It's a crime that's below the radar, and doesn't get nearly the attention of say, bank robbery," says John Kennedy, president of the JSA. "But in the past 10 years or so, it's become a fact of life for an industry where it had pretty much been unknown."

After 1999, when sales reps endured a record 323 robberies and more than $76 million in losses, the FBI began to partner with local police task forces in New York City, Los Angeles, Houston, Miami and other jewel theft hot spots. Using stakeouts, stings and other methods, they've helped boost arrests and lower dollar losses each year since 2000. Figures kept by the Jewelers' Security Alliance show local, state and federal arrests increased 25%, from 456 in 2003 to 570 in 2004. Those included crimes against retailers as well as sales reps. Rest of Article. . . [Mark Godsey]

October 24, 2006 in Organized Crime | Permalink | Comments (0) | TrackBack (0)

N.C. Study Finds Many People on Death Row Had Substandard Representation

From The Common Sense Foundation of North Carolina recently released a study on that found that at least 37 people now on death row had trial lawyers who would not have met today’s minimum standards of qualification.  Nearly a third of the cases where sufficient data was available fell into this substandard category.

The study also lists the names of 16 people who have been executed whose trial lawyers did not meet these same standards. Over half of the executions in the state where data was available were of defendants whose attorneys would not meet the current state standards.

The study noted that after the state legislature created the Office of Indigent Defense Services (IDS) in 2001 requiring that appointed capital defense attorneys have some experience and knowledge of capital defense, the number of N.C. death sentences declined sharply.  However, the new rules do not apply to those who have already been sentenced to death.

Get Study. . . [Mark Godsey]

October 24, 2006 in Reports | Permalink | Comments (0) | TrackBack (0)

Convicted Smuggler Finally Proves Connection to CIA

From Edwin Wilson always insisted the CIA framed him. In the 1980s he was convicted of smuggling explosives and weapons to Libya. Wilson always maintained that he was doing it at the behest of the CIA. Officials denied it. After two decades in federal prison Wilson finally managed to obtain a document that proved he had been working for the government. Listen. . . [Mark Godsey]

October 24, 2006 in Homeland Security | Permalink | Comments (0) | TrackBack (0)

Monday, October 23, 2006

Guns and the American Way Lead to Violence and Death

From It's an American way of death. More than 30,000 people die from gunshot wounds every year, through murder, suicide and accidents. That is an average of 82 a day, and prospects for reducing the toll are dim.

Justice department figures put the number of guns in private hands at more than 200 million -- more than any other country -- and swelling by several million every year. The annual U.S. production of pistols, revolvers, rifles and shotguns for the domestic civilian market has been running at between 2.6 million and more than three million for the past seven years, according to the Bureau of Alcohol, Firearms, Tobacco and Explosives.

"The U.S. level of lethal violence is far out of line with those of other industrialized nations," said David Hemenway, director of the Harvard Injury Control Research Center. "The fact that most of our lethal violence involves firearms lends credence to the hypothesis that the prevalence of guns is a prime reason." Rest of Article. . . [Mark Godsey]

October 23, 2006 in News | Permalink | Comments (0) | TrackBack (0)

CrimProf David H. Kaye Speaks About the Science of the Jury Box

Kaye Sandra Day O'Connor College of Law CrimProf David H. Kaye, will speak on "Science in the Jury Box" at a Mathematics and Cognition Seminar on Tuesday, Oct. 24.

Complex scientific evidence has become ubiquitous in both civil and criminal trials, leading lawyers, litigants and policy makers to express concerns about whether juries can comprehend and properly apply such evidence.

Psychological studies have reported various types of error on the part of mock jurors confronted with explicitly probabilistic evidence - ranging from transposing conditional probabilities to disregarding the relevant statistics.

Kaye will briefly review part of the literature and describe some findings from a new study of juror comprehension of complex scientific evidence.

Mock juries of individuals who appeared for jury duty viewed a videotaped trial with both fallacious and valid arguments about mitochondrial DNA evidence and certain probabilities and statistics related to it. Some implications for the law of the findings on the comprehension of the jurors and their susceptibility to certain fallacies will be noted. [Mark Godsey]

October 23, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Pennsylvania is Now Providing Services for Ex-Inmates With Mental Illnesses

From  Ex-inmates are now participating in Pennsylvania programs for parolees with serious mental illness. The programs offer comprehensive services - housing and job assistance, medication management, counseling and education - aimed at keeping this high-risk, high-maintenance population from returning to jail or causing trouble out on the streets.

Until this year, the state didn't offer any services for the mentally ill once they left state prison. Nine of the state's 21 counties have some mental health services for such inmates who are about to be freed from county jail, though the assistance varies in scope, duration and intensity.

"The dilemma was, 'Where do I put a person like this?' " said Kevin McHugh, director of community programs and grant management for the state parole board. "We don't want to keep them in jail, and the likelihood for them to fail on the outside was high."

The two pilot programs for inmates emerging from state prisons are run by separate groups and funded by different sources. But their missions are similar: to provide the best possible chance for mentally ill ex-cons to become independent and productive rather than be re-incarcerated.

Rest of Article. . . [Mark Godsey]

October 23, 2006 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Sunday, October 22, 2006

This Week's Top Five Crim Papers

Ssrn_17_20The top 5 crim papers for this week, with number of recent downloads, from SSRN are:

(1) 189 The Fourth Amendment in Cyberspace: Can Encryption Create a Reasonable Expectation of Privacy?
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: September 4, 2006
Last Revised: September 5, 2006
(2) 126 Therapeutic Jurisprudence and Readiness for Rehabilitation
David B. Wexler,
University of Arizona - James E. Rogers College of Law,
Date posted to database: September 8, 2006
Last Revised: September 14, 2006
(3) 71 Towards a Common Law Originalism
Bernadette A. Meyler,
Cornell University - School of Law,
Date posted to database: August 22, 2006
Last Revised: October 12, 2006
(4) 52 Systemic Changes that Could Reduce the Conviction of the Innocent
Arnold H. Loewy,
University of North Carolina at Chapel Hill - School of Law,
Date posted to database: August 29, 2006
Last Revised: August 29, 2006
(5) 45 The Fourth Amendment: Internal Revenue Code or a Body of Principles?
Stephen A. Saltzburg,
George Washington University School of Law,
Date posted to database: August 29, 2006
Last Revised: September 14, 2006

October 22, 2006 in Weekly Top 5 SSRN Crim Downloads | Permalink | Comments (0) | TrackBack (0)

CrimProfs James Jacobs and Michael Cahill Speak About the Finality of Jury Deliberations

Jacobs_1From New York University School of Law CrimProf James Jacobs and Brooklyn Law School CrimProf Michael Cahill both recently discussed the problems with former Jury Foreman Loy Malcomb's complaint that she was pressured into agreeing on a guilty verdict in Martin Heidgen murder trial.

"When it's over, it's over, and we don't almost ever allow people to impeach their own verdicts," said CrimProf Jacobs. "If she had all those doubts she should have Mcahillsmall held on to her position."

CrimProf Cahill said recent state appellate decisions have found that the "tenor" of deliberations is not something that can be used to impeach a jury verdict. In one case, for example, several jurors were found to have threatened one of their peers into agreeing with them, and the appellate division still let the verdict stand, Cahill said.

"They're entitled to reach the conclusion they reached, and there's very little scrutiny of the process they used," Cahill said. Rest of Article. . . [Mark Godsey]

October 22, 2006 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

CrimProf Carol Chase Disusses Attempted 1st Degree Murder Charges for a Leg Stabbing

Chase_1From Pepperdine University School of Law CrimProf Carol Chase commented on the the attempted first-degree murder charge against Mitch Cozad, the Northern Colorado football backup suspected of stabbing starting punter Rafael Mendoza last month.

CrimProf Carol Chase, who is also former federal prosecutor, said the attempted first-degree murder charge against Cozad seemed "a little bit unusual," given the stab wound to the leg.

"First-degree murder is killing with malice. You intend to kill or cause great bodily injury," Chase said. "With this injury, you might have trouble showing that kind of intent. Possibly they have some other evidence that the accused was intending to kill." Rest of Article. . . [Mark Godsey]

October 22, 2006 in CrimProfs | Permalink | Comments (1) | TrackBack (0)