Saturday, February 25, 2006
Friday, February 24, 2006
Emory CrimProf Morgan Cloud has published A Liberal House Divided: How the Warren Court Dismantled the Fourth Amendment, in the Ohio State Journal of Criminal Law.
The abstract: "This article examines the decisions in which a liberal majority on the Warren Court replaced traditional theories of the Fourth Amendment with new doctrines that weakened constitutional protections of privacy, property, and liberty. The text of the Fourth Amendment prohibits unreasonable searches and seizures of persons and of three broad categories of property: papers, houses, and effects. From 1886 until the 1960s, the Supreme Court explicitly employed interpretive theories grounded in the text’s emphasis upon property - although with notable inconsistency. In some contexts, these theories erected powerful limits on government power. In other contexts, the Court’s constricted literalism insulated government surveillance from constitutional scrutiny. During the 1960s, liberals on the Warren Court began to dismantle the link between property law and Fourth Amendment rights, and to replace that traditional construct with a privacy-based theory of the Amendment. For several of these justices a fundamental goal was to impose constitutional constraints upon the use of intrusive modern technologies. In a series of decisions, the Court replaced traditional theories that both imposed procedural requirements and enforced property-based substantive rights with a new, if incoherent, emphasis upon “privacy” as the core Fourth Amendment value. This new approach, particularly as articulated by Justice Brennan, erroneously concluded that the procedural protections contained in the Warrant Clause and enforced by the exclusionary remedy were adequate to protect Fourth Amendment rights. The result has been an erosion of individual rights that can be directly traced to the application of these “liberal” theories." Click here to dowload this paper from SSRN.
From MSNBC.com: "The New Orleans court system may be forced to start releasing an estimated 4,000 prisoners — from potheads to murder suspects — if money isn’t found to run the local public defender’s office." More. . . [Mark Godsey]
Thursday, February 23, 2006
"The controversial use of extraordinary renditions to interrogate or detain suspected terrorists has evolved since its first use by the United States in 1995, but the practice fails to address concerns about torture and may be ineffective in quashing terrorism, said panelists at a Feb. 16 discussion at the University of Virginia Law School. Moderated by JAG Legal Center and School Executive Director David E. Graham (pictured), the panel featured Michael F. Scheuer, author of the best-selling Imperial Hubris and former chief of the CIA Bin Laden Unit, and Margaret L. Satterthwaite, faculty director of the Center for Human Rights and Global Justice at the New York University School of Law.
“Suspected terrorists are often transferred from one state to another for the purpose of arrest, detention, and/or interrogation,” Graham said. “This act of transfer itself is an act of rendition, and I say that so that you don’t…take away the idea that the word ‘rendition’ is, in and of itself, a dirty word. It’s not.” If undertaken under the full construct of the law, as it most often is, Graham said, this process is better known as extradition. Irregular or extraordinary rendition occurs when prisoners are extradited through a process that does not afford them an opportunity to judicially challenge their transfers...Some reports, none substantiated, suggest that over 100 extraordinary renditions have occurred since 9/11, according to Graham. “The Bush administration has said that [it does] not engage in extraordinary rendition for the purpose of…intelligence interrogation using torture as a method,” he said. “They don’t deny that extraordinary renditions have occurred.”
Nonetheless, many critics continue to believe that these renditions are conducted in order to gain crucial information through the torturing of suspected terrorists. While the Convention Against Torture (CAT), which the United States has ratified, forbids transfers to states where there is a “substantial likelihood” that an individual will be tortured, it does not forbid transfers to locations where certain kinds of treatment that might be considered cruel, inhuman, or degrading treatment under U.S. law might occur. Nor does the CAT forbid renditions, Graham said." More. . . [Mark Godsey]
AUSTIN, Texas ― The Capital Punishment Center at The University of Texas School of Law will host a presentation by board certified psychiatrist and neurologist George Woods, M.D. on Wed., March 1 from 11:30 a.m.-1:20 p.m. in the Law School's Townes Hall, Room 3.126. Woods will address the need for a multidisciplinary approach to investigating capital cases in collaboration with social workers, neurophychologists, and other experts on the psychological and social complexities of their clients.
Woods has consulted on and served as an expert witness in death penalty cases around the country. He is also very knowledgeable regarding issues surrounding brain injury, trauma and chemical dependency and maintains an extensive and diverse international psychiatric practice.
The Capital Punishment Center has been established to promote research and practice opportunities in death penalty law. The Center sponsors academic events, pursues research projects concerning the administration of the death penalty, and houses the Capital Punishment clinic, which provides direct representation and assistance to indigent defendants on Texas’ death row.
The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, 2nd Edition has just been published by the ABA Criminal Justice Section. To purchase this book or for more information, go to http://www.abanet.org/abapubs/books/5090100 or call toll-free 1-800-285-2221.
Set up in a unique question-and-answer format, this concise guide focuses on the criminal lawyer's most common questions about immigration law and representing noncitizens, from "Who exactly is an alien?" to "Are removal hearings conducted like criminal proceedings?" The answers are clear and carefully focused and in most instances direct you to specific cases or more in-depth resources.
From an overview of immigration law to guidance for specific situations, this convenient reference addresses immigration court and procedures, immigration consequences of criminal convictions, extradition, and prisoner issues -- a variety of real-life situations you face as a criminal lawyer with noncitizen clients or witnesses.
The "Guide" is an invaluable resource for both federal and state criminal law practitioners. Federal lawyers will find the chapters covering alien smuggling and hostage taking, immigration document fraud and false statements, and illegal entry and reentry (pretrial through sentencing) to be the most up-to-date source of information on handling these cases. All criminal practitioners will find essential the chapters on immigration consequences of criminal convictions, as well as border stops, getting witnesses and evidence from abroad, international extradition, treaty transfers, and how the PATRIOT Act affects aliens.
To view the detailed table of contents, go to http://abastore.abanet.org/abastore/products/books/toc/5090100_toc.pdf.
You can view the entire list of questions at http://abastore.abanet.org/abastore/products/books/abstracts/5090100quest_abs.pdf.
Author Robert J. McWhirter has been an Assistant Federal Public Defender for the District of Arizona since 1989.
Price: $99.95 ABA Criminal Justice Section members/$114.95 regular price.
To purchase "The Criminal Lawyer's Guide to Immigration Law, Second Edition" or for more information, go to http://www.abanet.org/abapubs/books/5090100 or call toll-free 1-800-285-2221.
Clyde Kennard is one of the unsung martyrs of the civil rights movement; he was convicted of a crime underquestionable circumstances after he sought admission to an all white university, and spent most of the rest of his life in prison, realeased only when terminally ill to die shortly thereafter. I mentioned his story in an article a few years ago. Gabriel J. Chin, Rehabilitating Unconstitutional Statutes, 71 U. Cin. L. Rev. 421, 447-48 (2002).
Now Northwestern CrimProf Steve Drizin and a high school teacher Barry Bradford and their students are seeking a pardon on the ground of actual innocence. Here's their message to you:
"Last year, you may recall, three of my students and I helped to get the Mississippi Burning murder case reopened, This year we have taken on another similar struggle and we need your help. Along with Prof. Steven Drizin of the Center On Wrongful Convictions at the Northwestern University School Of Law, we wanted to let you know that we have made a major breakthrough on our latest effort to overturn a miscarriage of justice and history from the Civil Rights Era.
Our website is http://www.clydekennard.org " Full message here; they just want you to email the Governor of Mississippi to support the pardon. The Mississippi Supreme Court recently denied collateral relief on the ground that Kennard died in 1963.
A former deputy prosecutor and defense attorney, Professor Ellen S. Podgor teaches in the areas of international criminal law, white collar crime, criminal law and procedure, and professional responsibility. She has also shared coaching responsibilities for several trial teams at Georgia State that have been finalists and semi-finalists in competitions.
Professor Podgor is the co-author of books on white collar crime and international criminal law, and has authored articles on computer crime, international criminal law, lawyer's ethics, criminal discovery, prosecutorial discretion, corporate criminality, and other white collar crime topics. Podgor's op-ed pieces have appeared in numerous newspapers, including The Atlanta Journal-Constitution, Houston Chronicle, and a co-authored piece in The Washington Times. She has been interviewed by NPR, Atlanta radio and television stations and newspapers throughout the U.S. She also co-edits the White Collar Crime Prof Blog.
In addition to her law degree, Professor Podgor earned an M.B.A. from the University of Chicago and an L.L.M. from Temple University. In the fall of 1998, she was a Visiting Scholar at Yale Law School. She has been a visiting professor at University of Georgia School of Law and George Washington University Law School and held a visiting endowed chair position at University of Alabama School of Law. She is member of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL), the International Society for the Reform of Criminal Law (ISRCL) and a member of the American Law Institute (ALI). She is an honorary member of the American Board of Criminal Lawyers.
Congratulations to Ellen Podgor on her new appointment. [Mark Godsey]
Wednesday, February 22, 2006
In Oregon v. Guzek, No. 04-928, the Supreme Court (minus Alito) ruled unanimously that a defendant doesn't have a constitutional right to present evidence of innocence (in this case alibis) at the mitigation phase of a capital trial. Breyer, writing for all justices except Scalia and Thomas, said there's no reason to actually address the question of residual doubt. But he observed that six members of the Court have previously said there is no right to present such evidence. Scalia, writing for himself and Thomas, concurred, but noted that residual doubt evidence is not mandated under the 8th Amendment and that any inference to the contrary buried in the majority opinion is worthless and internally inconsistent with other parts of the opinion. [Mark Godsey]
This story discusses the medical profession's role in executions. Doctors have been involved in capital punishment all the way back to when Dr. Joseph-Ignace Guillotin invented the guillotine as a humane method of death. Later in history's progression, doctors helped invent the electric chair for the same reason. But the American Medical Association and many other medical groups have long opposed doctors having any role in executions, including monitoring a prisoner’s vital signs or giving technical advice. "They should not even certify death," because if they find the patient has not died it would lead to more drugs or electrocution to kill the patient, said Dr. Steven Miles a bioethicist at the University of Minnesota.
It’s a voluntary rule and no doctors have been reprimanded or defrocked for taking part in executions, and few doctors do. In fact, most states have devised strategies to avoid involving doctors. Illinois, for instance, adopted a law saying that assisting death was not practicing medicine, thus freeing the state to hire non-physicians to do the job. Many states, including Texas, use "execution specialists" who are trained in how to start intravenous lines to administer lethal injections. More from MSNBC.com. . . [Mark Godsey]
Michael Morales, Kenneth Starr's client, was not executed as planned Tuesday night after the anesthesiologists ordered to be present at the execution to ensure Morales' lack of pain, decided they weren't able to participate. They believed their intervention in the process would be medically unethical. Morales was scheduled to die at 12:01 a.m. Tuesday, but it was postponed until 7:30 p.m. when the anesthesiologists refused to participate. After the anesthesiologists backed out, the state was given permission to execute Morales with a lethal dose of barbiturate. But the prision warden decided to call off the execution around 5:30 p.m. Schwarzenegger condemned the decision. An evidentiary hearing on the constitutionality of California's lethal injection process is scheduled for May 2 or 3. The administration process and the cocktail have recently been questioned. More from CNN.com. . . [Mark Godsey]
Yesterday, the Supreme Court rejected Pennsylvania's request for the court to review the case and reinstate a convicted murderer's death sentence. Antuan Bronshtein's death sentence was commuted to a life sentence in an opinion written by Samuel Alito when he was still sitting on the 3rd U.S. Circuit Court of Appeals. Bronshtein, who emigrated to the United States from Russia as a child, was convicted in the 1991 deaths of two Philadelphia-area jewelers, and sentenced to death for one of the murders. At issue in the case was a missed deadline. The prosecutor said that for the past decade the state has had a one-year deadline for appeals that "has been strictly applied, exactly as written, in both capital and noncapital cases." Alito, writing for a three-judge panel of the 3rd Circuit, said the deadline was not consistently enforced in death penalty cases. Alito's decision upheld Bronshtein's conviction, but said he was entitled to a new sentencing hearing. To avoid a conflict of interest, Alito didn't participate in the Court's decision yesterday. More. . . [Mark Godsey]
Tuesday, February 21, 2006
The U.S. Supreme Court ruled unanimously Tuesday that the congregation of a small Brazil-based church in New Mexico, may continue to use hallucinogenic tea, which contains the illegal drug DMT. In the case, Gonzales v. Centro Espirita Beneficente Uniao do Vegetal, No. 04-1084, the court held that the government failed to show, as required by the Religious Freedom Restoration Act, that barring the religious sect from using the sacramental tea for religious purposes is the least restrictive means to advance the federal Controlled Substances Act's ban on the use of hallucinogens. The hoasca tea is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies. More. . . [Mark Godsey]
A hitman who got a deal plans to testify at a Georgia trial. Defense lawyers wanted to keep him out on the ground that under the terms of his deal, if he says anything but that the defendant hired him, the hit man faces a capital charge. The trial judge rejected the objection, and the hit man will testify but can be cross-examined. Story here. [Jack Chin]
The DePaul College of Law in Chicago is seeking a visitor in criminal law for either the entire year, 2006-2007, or just the spring semester, 2007. The teaching program, besides criminal law, is negotiable.
Please reply to:
Brian Havel, Chair
Faculty Recruitment Committee
Monday, February 20, 2006
Federal and local law enforcement officials and politicians want a forensic crime laboratory in the nation's capital. The district's DNA testing is currently conducted by an FBI lab in Virginia. Officials say because local cases are sapping federal resources, crime solving has slowed nationwide. Listen to the story here. [Mark Godsey]