Wednesday, January 31, 2007
From instapundit.com: Pioneering forensic anthropologist Dr. Bill Bass is the inventor of the University of Tennessee "body farm," made famous by Patricia Cornwell's bestselling novel of the same name. Bass is also, with Jon Jefferson, a bestselling author in his own right under the name Jefferson Bass.
The reporters talk to Dr. Bass and Jon Jefferson about forensic anthropology, their new novel Flesh and Bone, what CSI gets wrong, and how to have fun in Chattanooga's gay bars. Plus, Dr. Bass's new effort to find out what happened to the Big Bopper in his plane crash with Buddy Holly and Richie Valens. Listen.. . [Mark Godsey]
Ninth Circuit Says Exclusionary Rule Does Not Apply to Officers Who Fail to Show Search Warrant to Resident
From Criminal Law Reporter: The reasoning behind the U.S. Supreme Court's controversial decision in 2006 not to apply the exclusionary rule to violations of the Fourth Amendment's knock-and-announce rule carries over, the Ninth Circuit says, to other circumstances where a valid search warrant was executed in an unconstitutional manner.
The case involves a Fourth Amendment rule, recognized in circuit caselaw, that requires officers executing a search warrant to serve a copy of it at the premises. Bypassing a ruling on the continuing vitality of this rule, the Ninth Circuit instead relies on Hudson v. Michigan for the idea that the causal connection between a violation of the rule and a seizure of evidence pursuant to the warrant is too attenuated to justify suppression
Read More. . . [Mark Godsey]
University of San Diego CrimProf Shaun Martin Discusses Possibility of the Operating Brothers Being Tried with the Cartel Head
From SignOnSanDiego.com: University of San Diego CrimProf Shaun Martin recently discussed the possibility of the judge or the Prosecutor pushing for the two brothers accused of running day-to-day operations for the Arellano Félix cartel in Tijuana and Mexicali who pleaded not guilty to be tried with the accused head of the organization.
Ismael and Gilberto Higuera Guerrero oversaw the importation of tons of cocaine and marijuana from Mexico into the United States, and kidnapped, tortured and killed cartel rivals in the process, prosecutors said. The Higuera brothers are scheduled to appear before U.S. District Judge Larry Alan Burns on Monday, along with Francisco Javier Arellano Félix and a man authorities said was his No. 2 man.
“He's been known to jam people into one big trial,” said CrimProf Martin. “Explaining the structure of the organization is so hard and takes so much time that judges are pressured to put as many defendants together as they can.” Rest of Article. . . [Mark Godsey]
Tuesday, January 30, 2007
From latimes.com:Tasty meals! A room with a view! Ping-Pong! Cable TV!
In one of the more unusual marketing campaigns undertaken by state government, California prison officials are asking inmates to bid adieu to their cellmates and transfer to lockups elsewhere in the country.
As part of the recruitment drive, wardens are screening a film extolling the virtues of out-of-state prisons and reminding convicts of the violent, overcrowded, racially charged conditions they face in California.
"You get 79 channels here — ESPN!" one tattooed California felon, now housed in Tennessee, says in the movie.
"They talk to us like humans," says another, "not like animals."
The campaign reflects the desperation corrections officials face as they grapple with a ballooning prison population and no easy fix. Leaders say they will run out of room for new inmates by summer, and a federal judge has ordered the overcrowding eased by June.
Gov. Arnold Schwarzenegger has unveiled a sweeping $11.9-billion prison building and reform plan. But its prospects are uncertain in the Legislature, and creating bed space — whether through the construction of new cells or policy changes that slow the incoming tide of convicts — cannot be accomplished overnight. Rest of Article. . . [Mark Godsey]
On February 23, Indiana University School of Law CrimProf David Orentlicher will participate in an Oxford-style debate on the death penalty, moderated by Butler University President Dr. Bobby Fong. Orentlicher will argue against the death penalty, while attorney Thomas Farlow will argue for it. The event takes place at Eidson-Duckwall Recital Hall on the Butler University campus at 7:30 p.m. The event is sponsored by IICACP, Law Students Against Capital Punishment, Butler University, the Indiana University School of Law – Indianapolis, and the Christian Theological Seminary.
Before coming to the law school in 1995, David Orentlicher served as director of the Division of Medical Ethics at the American Medical Association for six-and-a-half years. He also held adjunct appointments at the University of Chicago Law School and Northwestern University Medical School, and from 1992 to 1995, served on the founding board of the American Association of Bioethics.
Currently, he is on the core faculty of the Indiana University Center for Bioethics, an adjunct professor of medicine at Indiana University School of Medicine, and a member of the American Law Institute. He also serves on the board of the Gennesaret Free Clinic. Professor Orentlicher has served in the Indiana House of Representatives since 2002.
From columbusdispatch.com: Ohio State University Moritz College of Law CrimProf Douglas Berman recently discussed the Franklin County prosecutor's decision to call for the former Columbus recreation and parks director and his former girlfriend to serve at least 60 days each for scamming taxpayers.
Wayne A. Roberts and Krystal Griffin pleaded guilty to theft and tampering with records. He signed off on her false time sheets for years before someone turned them in to police last summer. Roberts resigned and Griffin, a part-time employee with the city, was removed from the payroll.
"I think it’s awfully unlikely that they would get a sentence at the high end," said CrimProf Berman. He noted that both are first-time offenders who pleaded guilty instead of making prosecutors take them to trial.
"All judges are understandably concerned about being consistent. They also understand individual justice," he said. "The devil is always in the details." Rest of Article. . . [Mark Godsey]
Monday, January 29, 2007
From philly.com:Philadelphia's jails are so overcrowded and dangerous that they violate the constitutional rights of inmates, a federal judge ruled yesterday.
In a scathing 76-page ruling, U.S. District Judge R. Barclay Surrick ordered the city to immediately provide prisoners with clean cells, toilets, showers, beds and medical attention, as well as to dramatically reduce the time that suspects are kept in police lockups.
City jails will again be put under court monitoring - as they have been for most of the last 35 years.
Surrick, who toured the city's Curran Fromhold Correction Facility last month, said the "unconstitutional conditions... required detainees to sit and sleep on concrete floors."
"The conditions include the failure to provide beds and bedding, the failure to provide material for personal hygiene including soap, warm water, toothpaste, toothbrushes and shower facilities, unsanitary and unavailable toilet facilities, the failure to provide for the medical needs of detainees..."
Yesterday's ruling was in response to a lawsuit filed last year on behalf of 11 prisoners by University of Pennsylvania law professor David Rudovsky. The suit was the latest to be lodged against the city prison system. In 1971, Rudovsky filed a similar suit and the city jails were put under court monitoring that ended in 2001.
"The city is ordered to immediately take affirmative steps to redress the unconstitutional conditions," the ruling reads. It also gave Philadelphia 15 days to meet with the plaintiffs to work out details on court monitoring of the jails. Rest of Article. . . [Mark Godsey]
From npr.org: In Long Beach, Calif., a juvenile court judge has convicted eight black girls and one boy of beating three young white women last year. One girl was acquitted of all charges. The defendants range between 12 and 18 years old. The racially charged case included allegations of witness intimidation.
The attack happened last Halloween in an upscale mostly white neighborhood filled with trick-or-treaters. Prosecutors called it a hate crime because they said the attackers hurled racial slurs at their victims.
Nine girls and one boy were charged with the attack. But their families say that the first call for help identified the attackers as a group of black males. Listen. . . [Mark Godsey]
Here is an extensive article from the San Jose Mercury News that reexamines the Santa Clara, California criminal justice system one year after the Mercury News published a five day series called "Tainted Trials, Stolen Justice", which addressed errors in the system and involved three years of investigation by the paper.
Here is a summary of the improvements made in the past year.
- A new district attorney has vowed to end a "win at all costs'' culture in the office.
- An independent state commission, the Commission on the Fair Administration of Justice (FAIR), chaired by former Attorney General John Van de Kamp, is recommending statewide policy changes and new laws to reduce the risk of wrongful convictions in cases relying on eyewitness identifications and jailhouse informants. And the county bar and the California Supreme Court have acted to address longstanding problems in the system.
- In the past year, six defendants who were sentenced to prison had convictions overturned or were released from custody in cases the Mercury News examined.
- And the decisions of the 6th District Court of Appeal, which oversees cases in Santa Clara and three neighboring counties, appear to demonstrate a new forcefulness. In the past year, the court has increasingly chastised local judges, prosecutors and defense attorneys for mistakes and misconduct. The court is reversing criminal cases at a rate higher than at any time in at least 18 years. Since 1988, the court's reversal rate has not exceeded 4.8 percent and averaged 3 percent. Last year, the rate climbed to 5.5 percent--still a small number, but strikingly higher.
And here is a summary of the problems originally addressed.
• Inadequate defense investigation. In three cases, felony convictions were overturned on appeal last year because lawyers for the defendants failed to properly investigate their cases. A fourth case has been scheduled for a hearing in March. Most prominent was the case of Michael Hutchinson, who was set free after seven years in prison based on evidence developed by the Mercury News, which his trial attorney never explored.
• Clerical mistakes. Two men were released after authorities discovered clerical errors in state records had wrongly connected them to crimes. One, Longino Acero, spent more than a year in custody because officials incorrectly believed he was required to register as a sex offender.
• Judicial errors. Federal judges are considering whether state court rulings that wrongly limited defense evidence at the trials of three different murder defendants warrant overturning the convictions of Timothy Parle, Richard Kolacki and Sonya Daniels.
• Jailhouse informants. Roy Lopez Garcia was released after six years in custody when a jury acquitted him of murder in a case that relied heavily on an informant who had previously been discredited by a federal judge.
• Withheld evidence. Another federal judge is considering whether to grant a new trial to Dung Pham, convicted of murder in 1998, based on the belated disclosure of physical evidence that points to another suspect.
• Eyewitness identification. Kenneth Foley was released after 11 years based on evidence that another man committed the robbery that sent Foley to prison for 25 years to life. The reinvestigation by the district attorney's office was sparked by "Tainted Trials, Stolen Justice.'' Foley's case was one of five plagued by questions about the reliability of eyewitness identification.
Full Story here. . . [Michele Berry]
Sunday, January 28, 2007
Jurist Guest Luis Moreno-Ocampo Discusses Struggles as International Criminal Court Chief Prosecutor
From the jurist.law.pitt.edu: JURIST Special Guest Columnist Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court at The Hague, says that since he began work in late 2003 his office has already faced and met several key challenges in bringing to justice persons suspected of committing war crimes, genocide and crimes against humanity. Here is the Introduction to his piece:
I took office as Prosecutor of the International Criminal Court in November 2003. As we begin 2007, I would like to take the opportunity to reflect on my office’s achievements and some of the main challenges we have faced.
In the last three years, the Office of the Prosecutor has opened three investigations, collected evidence amidst on-going violence, requested arrest warrants and secured the arrest of a major suspect. In accomplishing these results, the Office had to overcome considerable obstacles. Specifically, I would like to detail the three major challenges the Office has faced in relation to its core activities of investigating and prosecuting crimes under its jurisdiction. Each challenge has necessitated creative thinking and innovative solutions. Read. . . [Mark Godsey]
From twincities.com: William Mitchell College of Law CrimProf C.Peter Erlinder recently discusses the justification of authorities in a delayed arrest of a a man who admitted to repeatedly striking the 1 month-old child of his fiance when it would not stop crying.
Authorities were worried that if they charged the man with assault, and if he pleaded guilty immediately, and if the baby died afterward, the man might be able to argue against being charged with murder because of the constitutional protection against being tried twice for the same crime, known as double jeopardy.
Actual examples of such legal tactics are uncommon, said CrimProf C. Peter Erlinder. Speaking hypothetically, he said copping a quick plea and then hiding behind double jeopardy isn't as easy as it might sound.
"There's no obligation for the judge to accept a plea, and there's no obligation to accept the plea as a complete resolution to the matter," he said. Rest of Article. . . [Mark Godsey]
From yorkshiretoday.co.uk: Coventry University CrimProf Barry Mitchell recently addressed the fact that Prisons in England and Wales are now at bursting point – hovering around their 80,000 capacity – and hundreds of people are being housed overnight in police stations and even court cells.
More young people are being locked up under this Government than ever before.
CrimProf Mitchell believes the solution could come from focusing on community orders and "retributive justice". In other words, making the punishment fit the crime.
He says: "The Government is trying to protect the public from dangerous people, but we cannot keep building more and more institutions to accommodate offenders. It doesn't seem to be a long-term solution because of the reoffending rate, we need to find alternatives."
He says rehabilitation programmes and supervision orders offer a viable alternative, in some cases, to prison. "If you look at reoffending rates, some of the non-custodial sentences are more effective than a custodial sentence.The problem is when it comes to looking at dangerous offenders. Deciding who is dangerous and the risk assessments involved are very difficult. It's not an exact science, even the most able experts cannot produce that kind of certainty."
Rest of Article. . . [Mark Godsey]
Saturday, January 27, 2007
From Malaysiasun.com: Haifa University CrimProf Emanuel Gross recently commented on Israeli President Moshe Katsav delivery of a frantic speech in which he venomously attacked all of Israel's institutions, including the police, attorney general, government and media.
CrimProf Gross told Ynet news he was severely disappointed in Katsav's speech and called it "an unbecoming and even cynical exploitation of his official position to attack law enforcers and the complainants against him without giving them the chance to respond."
Gross said he found it hard to believe he was hearing such a spray of venom from the president's mouth.
"I would have expected him to resign before making such statements. This is a test for the Knesset, a test for democracy. I expect the Knesset to dismiss the president, and that seems obvious."
Rest of Article. . . [Mark Godsey]
Friday, January 26, 2007
This week, the CrimProf Blog spotlights University of Pittsburgh School of Law CrimProf Francis Barry McCarthy.
Barry McCarthy is an expert in criminal law and procedure and in juvenile law, both in the United States and abroad. He is the former chair of the Pennsylvania Supreme Court's Criminal Procedural Rules Committee (1993-1999) and currently is the chair of the Pennsylvania Juvenile Court Rules Committee. He served as a consultant to the Law Reform Commission of Ireland for almost 20 years, and has also been a consultant to the U.S. Department of State.
He was an adviser to Ireland's director of public prosecutions, and an active member of the International Bar Association. Author of Pennsylvania Juvenile Delinquency Practice and Procedure (West/Thomson 1984-2005) and coauthor of Juvenile Law and Its Processes (Lexis 1979 – 2003),
Professor McCarthy is former chair of the Family and Juvenile Law Section of the Association of American Law Schools. His scholarly work has appeared in New York University Law Review, Temple Law Review, and University of Michigan Journal of Law Reform, among others. He previously taught law at Capital University and University College Dublin.
CromProf Quote: "While it is a cliche that over time everything changes, this saying has special meaning for a law school education. Students frequently come to law school uncertain of why, or whether they want to be lawyers. Law school is a time to consider these matters and to discover what is of interest in the law as well as in what direction one's talent lies. As a result, quite often students undergo a change of direction themselves from what they presupposed. Beyond this, however, law school is a time for preparing students for a changing world. It is a time of preparation not for the immediate practice of law, but rather for a lifetime career in the law."
North Carolina was scheduled to execute Marcus Robinson today, but the Wake Superior Court stayed Robinson's execution along with the February 9 execution of James Thomas, another NC death row inmate, because the state had made changes to its execution process, specifically the role doctors and nurses would play in the execution process, without getting the necessary approval. The stays come in the wake of the North Carolina Medical Board's refusal to allow doctors and nurses to participate in executions. Under the new policy, doctors and nurses employed by the prison system won't be desciplined for "merely being 'present' during an execution," but are forbidden from administering the lethal drugs or physically assisting with the execution.
The North Carolina Medical Board ruling comes as the state continues its debate about the humaneness of its lethal injection protocols. Defense attorneys have argued that only anesthesiologists or trained medical professionals can tell if an inmate is unconscious before being put to death. They argue that the state's protocol could result in an inmate waking up during the procedure but being paralyzed and unable to express pain before dying. Currently, the North Carolina Department of Corrections uses a brain wave monitor and heart monitor to evaluate the status of a person being executed. The machines are watched from a small viewing room established for doctors or nurses who are employed by the prison system. Full Story from NewsObserver.com. . . [Michele Berry]
Stateline.org's recent "State of the States" report features an extensive article on capital punishment trends in the United States. The piece includes a thorough review of lethal injection challenges in the states, as well as a brief update on the issue of innocence and an overview of other state legislative developments, such as efforts to authorize the death penalty for some crimes other than murder.
The article notes that questions about lethal injection put the death penalty on hold in nine states in 2006, and problems with the procedure left lawmakers grappling with the question of how much pain the condemned feel as they die and what role, if any, medical professionals should play in executions. The report states that the 90-minute botched execution of Ohio death row inmate Joseph Clark was "a stark example of why America is taking a harder look at lethal injection." Clark raised his head and declared that the process was not working before prison officials closed the viewing room curtain as they struggled to find a new vein through which to carry out the execution.
The report also provides charts illustrating the number of executions carried out in the U.S. during the past year and since the death penalty was reinstated, as well as a graphic showing state-by-state information on death row exonerations. Download the report here [Michele Berry]
Just in time for Holocaust Memorial Day in Italy, which is honored tomorrow, Italy's government has agreed to make denying the Holocaust a crime and to stiffen prison sentences for those found guilty of inciting racial hatred. Initially conceived to target Holocaust deniers, the bill was broadened to include all forms of intolerance after some members of the ruling centre-left coalition had expressed reservations about the appropriateness of using the criminal code to honour the millions of Jews killed in the Shoah. Nonetheless, the bill draft received unanimous approval by the Italian cabinet. With approval from the parliament, the bill will become an official law, and those found guilty of spreading ideas about a race being superior to another would now risk up to three years in prison while acts designed to incite racial, ethnic, religious or sexual violence would be punishable with a maximum four year prison sentence. Germany, which currently holds the European Union's rotating presidency, is pushing to make denying the Holocaust a crime in all member states. Full Story from Expatica.com. . . [Michele Berry]
Thursday, January 25, 2007
From NPR.com: Charles Moore and Henry Dee disappeared one hot afternoon in rural Mississippi after stopping for ice cream at a roadside stand. The next time their relatives saw the 19-year-olds, they were in pieces — a clutch of divers came across the boys' torsos, weighted down with automobile parts, during the well-publicized search for the bodies of three civil rights workers in Philadelphia, Miss.
James Ford Seale, a 71-year-old former sheriff's deputy, was arraigned in Jackson, Miss., Thursday for kidnapping Moore and Dee 43 years ago — an abduction during which the teenagers were killed. Charles Moore's brother, Thomas, talks about his role in solving the case.
Listen. . . [Mark Godsey]
From slate.com: Sentencing is supposed to be the straightforward moment in a criminal trial—easy arithmetic compared to the subjective assessments of jurors and attorneys. But ever since the Supreme Court got into the sentencing biz back in 2000, sentencing has been a mess. The court struck down federal mandatory sentencing guidelines in 2005, and some state guidelines have fallen as well. And in a 6-3 decision Monday, the justices killed the California sentencing guidelines.
The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.
But the court can't make pro-defendant reform its explicit aim—that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction—this is what it looks like when the Supreme Court lays waste.
The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right. The court suggested that the Sixth Amendment's guarantee of trial by jury means that a defendant can't be sentenced above the maximum specified in a statute unless a jury finds the facts that justify the increase. What does that mean?
According to this week's ruling, Cunningham v. California, for example, a legislature may not set the penalty for child sexual abuse at six to 12 years and then authorize a judge to send a sex abuser away for 16 years if the judge finds, for example, that the victim was particularly vulnerable or the abuser violent or dangerous. For one thing, those facts haven't been found by a jury. For another, they allow for a higher sentence based on a lower standard of proof than the one required for conviction: preponderance of the evidence, rather than guilt beyond a reasonable doubt.
Rest of Article. . . [Mark Godsey]
From turkishdailynews.com: Selcuk University CrimProf Haken Hakeri recently commented on Hrant Dink's murder investigation and suspected murderer Ogün Samast's signed confession saying that he regretted the murder, and that his intention had been to give himself up to the police in Trabzon after meeting with his family. This amounts to a change in his confession because during his preliminary investigation he had said he did not regret killing Dink.
Hrant Dink was a famous Turkish-Armenian journalist who is best known for his public statements and writings referring to the 1915-17 massacres of Armenians in the Ottoman Empire as "genocide" — one of the most "controversial" issues in Turkey today. For his statements on Armenian identity and the Armenian Genocide, Dink had been prosecuted three times under Article 301 of the Turkish Penal Code for “insulting Turkishness.”
Hakan Hakeri, Associate Professor of Criminal Law at Selçuk University in Konya, said Samast would receive a sentence of 18 to 24 years in prison, since he is not legally an adult. But Hakeri said that if Samast is under 18, this would increase the sentence of the so-called “older brothers” behind the murder, said Hakeri. Rest of Article. . . [Mark Godsey]