Friday, November 30, 2007
9th Circuit Decides that DNA Analysis Backlog Elimination Act of 2000 remains constitutional even after Congress expanded that law in 2004 to include as qualifying offenses all felonies
Senior Circuit Judge Betty B. Fletcher dissented in an opinion that begins, "The majority holds, with an air
of shrugging inevitability, that without a warrant, without probable
cause, indeed without any suspicion whatsoever, the federal government
may seize and repeatedly search the DNA of all federal felons on
supervised release, regardless of their offense or their likelihood to
re-offend. They sanction the inclusion of that DNA in a massive and
permanent computer database, the sole purpose of which is to aid
generalized criminal investigation. This offends not only the Fourth
Amendment but our precedents. I respectfully dissent."
Full Opinion. . . [Mark Godsey, Hat Tip: Bergeron, Pierre H]
Wednesday, November 28, 2007
From rockymountainnews.com: A Fort Collins couple and their lawyer plan to visit the Larimer County sheriff's office Wednesday in :hopes of recovering 39 marijuana plants seized by narcotics officers during a raid at their home in August 2006.
A Larimer County District Court Judge ruled Monday that authorities must return the plants and growing equipment taken from James and Lisa Masters. Their lawyer described them as medical marijuana providers for themselves and about 8 to 10 other people.
Brian Vincente, lawyer for the couple, hopes authorities have taken care of the plants as provided by the state's medical marijuana law, which was approved by voters in 2000.
"If they've allowed these plants to die, they've broken the law," said Vincente, executive director of Sensible Colorado, a non-profit advocacy group of medical marijuana patients.
He described the ruling as the largest return of medical marijuana to a grower since the law went into effect.
If the plants were destroyed, Vincente said his clients will seek compensation for the plants, which he estimated to be about $100,000. Rest of Article. . . [Mark Godsey]
The O.J. Simpson case continues to have legal ramifications, as the Supreme Court prepares to consider whether a prosecutor's reference to the infamous case prejudiced an all-white jury against a black defendant eventually sentenced to death.
In the capital murder trial of Allen Snyder, an African-American, the prosecution used peremptory (automatic) challenges to dismiss five African-American prospective jurors. This resulted in Snyder being tried by an all-white jury, which found him guilty and approved the death penalty.
The defense argued that the prosecution's striking of the black jurors was racial discrimination in violation of the Equal Protection Clause, according to the standard set forth by the Supreme Court in Batson v. Kentucky.
Snyder has argued that the prosecutor aggravated his racial jury choices by making repeated statements comparing the case to the O.J. Simpson murder trial. After having indirectly referred to the Simpson trial before jury selection, the prosecutor had invoked the case again during the sentencing phase, comparing aspects of Snyder's case to Simpson's and noting that the latter defendant "got away with it."
The trial court applied the Batson framework and denied the defense's challenges. On appeal, the Louisiana Supreme Court upheld the trial court, ruling that the trial judge had not acted unreasonably when he accepted the prosecution's race-neutral justifications for the dismissals of the black jurors.
The court ruled that the O.J. Simpson references were harmless comparisons made in the course of a rebuttal, and it noted that the prosecution had not mentioned Simpson's or Snyder's race. When the Supreme Court instructed the state court to reconsider the case in light of Miller-El v. Dretke, which requires that courts consider the totality of the circumstances when evaluating discriminatory intent, the court affirmed the trial court a second time. [Mark Godsey]
From NYTimes.com: The British teacher in Sudan who let her 7-year-old pupils name a class teddy bear Muhammad was found guilty on Thursday of insulting Islam and sentenced to 15 days in jail and deportation.
Under Sudanese law, the teacher, Gillian Gibbons, could have spent months in jail and been lashed 40 times.
“She got a very light punishment,” said Rabie A. Atti, a government spokesman. “Actually, it’s not much of a punishment at all. It should be considered a warning that such acts should not be repeated.”
British officials, meanwhile, were furious. As soon as the news broke that Ms. Gibbons had been convicted, the British foreign office in London, which had called the whole ordeal “an innocent mistake” summoned the Sudanese ambassador — for the second time in two days. Rest of Article. . . [Mark Godsey]
Thomas M. Cooley Law School Innocence Project Co-Director Marla Mitchell-Cichon recently wrote an opinion piece for the Lansing State Journal concerning false confession. Here is an excerpt:
When will we learn that innocent individuals can and do confess to crimes they do not commit? Sometimes they even plead guilty.
While we might find ourselves saying, "never," when imagining ourselves in such a situation, the truth is confessions and guilty pleas come from the mouths of the innocent. Of the 208 DNA exonerations nationally, more than 25 percent of the cases involved false confessions or guilty pleas.
Michigan should have learned this lesson in 2002 when Detroit native Eddie Joe Lloyd was found innocent and exonerated of the 1984 rape and murder of 16-year-old Michelle Jackson.
Lloyd was in a mental institution at the time of the investigation of the Jackson case. He contacted police because he wanted to help solve the crime. After three police interviews, Lloyd confessed to the crime. According to the police, Lloyd provided details of the crime that only the perpetrator could have known.
Hauntingly we have heard the same claims in the Claude McCollum case in Lansing. McCollum's "sleepwalking" confession also contained specific details of the crime. Rest of Article. . . [Mark Godsey]
Tuesday, November 27, 2007
The University of Southern California Gould School of Law seeks applicants for a faculty position in the Post-Conviction Justice Project Clinic to begin Fall 2008.
The Law School has a long tradition of clinical education and is committed to expanding its live-client clinical curriculum. The primary responsibility of this position is further developing and teaching in the Post-Conviction Justice Project, an existing live-client clinical course. The person hired for this position will co-teach this course with another clinical professor. Clinical faculty members at USC typically also teach a doctrinal or simulation-based lawyering skills course in addition to their clinic.
The Post-Conviction Justice Project represents prisoners in a variety of legal matters including habeas petitions in state and federal courts, administrative hearings before the California Board of Parole Hearings, and in cases challenging conditions of confinement. The Project also is considering taking on one or more innocence project cases.
Candidates will be considered for continuous appointment to the Law School's clinical professor track. J.D. Degree and a minimum of five years' relevant practice or comparable clinical teaching experience are required. Teaching experience in a clinical setting is preferred. Applicants must be licensed to practice law in at least one state and be eligible to take the July 2008 California bar if not already admitted to practice in California.
To apply, mail by December 14, 2007, a letter describing clinical teaching interests and relevant practice experience, a resume, and the names of three references to Assoc. Dean Greg Keating, USC Law School, 699 Exposition Blvd., Los Angeles, CA 90089-0071. The Law School is an equal opportunity employer.
From abajournal.com: A disbarred Dallas criminal defense lawyer has been charged with shoplifting from a Nordstrom’s department store.
Catherine Shelton, 59, is accused of trying to walk out of the store with a designer handbag worth nearly $1,200, two shirts and a candle, the Dallas Morning News reports.
A store manager refused to say whether a $1,195 purse on display by designer Marc Jacobs is the handbag Shelton is accused of stealing.
The newspaper reports that Shelton has had numerous run-ins with the law. She was convicted of aggravated assault for shooting a former boyfriend and for assaulting a former friend, the account says.
Civil suits claimed she was responsible for two different murders, but both suits were dropped and Shelton was never charged, the story says.
Shelton has been disbarred three times, most recently in May, the newspaper reports. Her license was reinstated once because she was not properly notified of an upcoming hearing and another time because paperwork was missing in the court file.
The most recent disbarment was for failing to perform legal work for clients, being late to hearings, and misrepresenting herself as an immigration lawyer, the story says. Rest of Article. . . [Mark Godsey]
From nytimes.com: Dodging rocks and projectiles, the French police lined the streets of this tense suburb Tuesday where angry youths have vowed to seek revenge for the deaths of two teenagers who died in a weekend collision with a police car.
Police union officials warned that the violence was escalating into urban guerrilla warfare, with shotguns aimed at officers — a rare sight in the last major outbreak of suburban unrest, in 2005.
More than 80 have been injured so far — four of them as a result of gunfire — and the rage was still simmering Tuesday afternoon. Inside the city hall of Villiers-le-Bel, a group of visiting mayors appealed for calm while police officers dodged rocks outside.
“We are sitting targets,” said Sophie Bar, a local police officer who stood guard outside. “They were throwing rocks at us and it was impossible to see where they came from. They just came raining over the roof.”
The violence was set off by the deaths of two teenagers on a motorbike who were killed in a crash with a police car Sunday night. The scene, with angry youths targeting the police mostly with firebombs, rocks and other projectiles, was reminiscent of three weeks of rioting in 2005.
Rest of Article. . .[Mark Godsey]
Monday, November 26, 2007
University of Iowa CrimProf Mark Sidel says that a variety of new legal tactics used against human traffickers will help determine whether modern-day slavery can be wiped out in the United States.
"Progress on this front, particularly in the areas of federal and state enforcement, civil remedies for trafficking victims, and the reform of labor law, will go a long way toward determining whether we can in fact make rapid progress in locating, prosecuting and eradicating human trafficking and forced labor in the United States," said CrimProf Sidel, who teaches courses on human trafficking and is writing a book on the issue, spoke on "New Directions in the Struggle against Human Trafficking" earlier this month as the Richard B. Lillich Memorial Lecture at Florida State University.
Between 600,000 and 800,000 persons are victims of human trafficking worldwide each year. They are taken against their will and forced to work in the sex industry or at jobs that pay little or no wages. The U.S. State Department estimates between 14,500 and 17,500 of those victims are trafficked into and within the United States, where they are subjected to force, fraud, or coercion -- all for the purpose of sexual exploitation or forced labor.
In his lecture, Sidel said that new "expressive" state laws have been adopted by more than 30 states seeking to combat human trafficking by criminalizing sex trafficking, labor trafficking or both. The laws may provide protection to trafficking victims while they attempt to prevent future offenses. He said that because most of the laws are new, enforcement has barely begun in many states, although the federal government has been actively prosecuting trafficking since the mid-1990s.
Sidel said that in 2006 Iowa enacted a trafficking law, spearheaded by then-State Senator Maggie Tinsman and supported by a statewide coalition of anti-trafficking activists and a student group at the University of Iowa. In addition, an anti-trafficking legal movement is growing that allows private lawsuits by trafficking victims to be brought against their traffickers, providing victims the ability to sue their traffickers for civil compensation, he said.
Sidel also said that American labor law needs to address human trafficking more comprehensively and forced labor far more often than at present, adding that the root cause of human trafficking needs to be researched more fully by policy researchers and scholars. [Mark Godsey]
From the guardian.com: A British woman who conceived a child after a one-night stand with a colleague and hid her pregnancy from everyone has won the right to keep the birth a secret from the father.
The woman, who is now 20 and cannot be named for legal reasons, became pregnant when she was 19, but did not realise until a late stage. She told no one, shunned medical help until she went into labour, and put the girl up for adoption as soon as she was born.
In September, after an application from the local authority, a county court judge ruled that the woman's parents and the father of the child should be told. But yesterday, three appeal judges overruled him and, in a landmark judgment, agreed that the mother has "the ultimate veto" over who should be told about her child.
They ordered that the local authority and guardian take no steps to identify the father or tell him about the birth of the girl, who is now 19 weeks old. They also banned the authority from introducing the girl to any of the mother's family to assess them as potential carers. Her family had found out about the child during the proceedings after the local authority wrote to them by mistake.
None of the names and locations of those involved in the case can be published by order of the court to protect the mother's wishes that the father should never know about his child.
Lady Justice Arden said the county court judge had made his order because he believed the local authority had a duty under the law to find out as much information about the background of the family as it could. But she said: "In my judgment, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make inquiries which it is not in the interests of the child to make, and inquiries are not in the interests of the child simply because they will provide more information about the child's background.
"They must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life."
She said that the judge had directed himself according to the wrong principle, and that the appeal must be allowed.
Lord Justice Thorpe described the case as "on any view extraordinary". "I need only refer to the mother's success in concealing the pregnancy from her family, her employers and her fellow employees," he said. "Her immediate request that her daughter should be placed for adoption at the earliest opportunity was entirely consistent with all that she had done and all that she had not done prior to the delivery."
Rest of Article. . . [Mark Godsey]
A new report from the University of San Francisco School of Law's Center for Law and Global Justice finds that the United States is one of only two countries in the world to sentence juveniles to life without parole.
The practice of sentencing juvenile offenders to die in prison by imposing life without parole (LWOP) has been abolished by the vast majority of countries in the world, yet thousands of children are serving the sentences in prisons across the United States, according to a new report from the USF School of Law's Center for Law and Global Justice.
With at least 2,381 children sentenced to life without the possibility of parole in the United States, and seven such cases in Israel, the two countries are the only remaining nations continuing to impose the sentence, which violates international law.
"The sentence violates customary law binding all nations, and is prohibited by the U.N. Convention on the Rights of the Child. This is the harshest sentence that can be given short of execution," said Michelle Leighton, director of human rights programs for the USF Center for Law and Global Justice.
The juvenile death penalty was eliminated in the United States in 2005 by the Supreme Court's ruling in Roper v. Simmons. In that decision, the court cited a brief authored by USF Law Professor Connie de la Vega, director of the Frank C. Newman International Human Rights Law Clinic, which pointed out that most countries prohibit the execution of criminals who were under 18 at the time of their crime.
"By clarifying the law and facts surrounding the use of life sentences without parole for juvenile offenders, this new report highlights how alone the United States is as a violator of the prohibition against such sentences," said de la Vega, who co-authored the report with Leighton. "Documentation of the abuse is but the first step in remedying that violation. We hope that it helps to mobilize shame in the international community as well as in the United States so that steps can be taken to stop it."
The center's report, the most comprehensive of its kind, is the next step in bringing the United States into compliance with international law guiding juvenile justice. The authors hope the report will raise awareness of the issue among the United Nations, individual governments, and the general public.
The report already made an impact on juvenile justice in Tanzania, which had been listed with the United States and Israel as a country with LWOP for juveniles. But in September, with help from Professor Nick Imparato of USF's School of Business and Management, Leighton met with the Tanzanian Ambassador to the United Nations and other officials and prevailed upon them to review the case of the one juvenile offender said to be serving a LWOP sentence and to agree to bring the country's laws into compliance with the U.N. Convention on the Rights of the Child.
"I believe our meetings with Tanzanian officials were successful in raising the case to the highest levels of the government, including the president and minister of justice. Our meetings and exchanges with these officials, including the Ambassador to the United Nations, give us every reason to believe that the country will follow through with the commitment of the presidency to review the one child's sentence and otherwise prevent a term of life without parole," Leighton said.
According to the report, children of color in the United States are 10 times more likely to receive life without parole than white child offenders. In some states, including California, the rate is 20 to 1. California lawmakers in January will consider a bill that would abolish the practice. The California Supreme Court is also considering the case of a 14-year-old boy who is the youngest person ever to be given the LWOP sentence for a crime involving no physical injury to the victim.
Full Report. . . [Mark Godsey]
Sunday, November 25, 2007
From hsdailywire.com: Dutch researchers test the reliability of finger print biometrics by placing finger print scanner at three Dutch soccer stadiums for the purpose of identifying more than 6,000 "black listed" volunteers; the fingerprint system failed to spot 15 percent to 20 percent of those on a volunteer black-list.
Rest of Article. . . [Mark Godsey]
CrimProf Robert Blecker Aids Senator Cardinale in Defending the Death Penalty for the State of New Jersey
From northjersey.com: New York Law School CrimProf Robert Blecker joined New Jersey Senator Gerald Cardinale in launching his defense of the death penalty during a State House press conference.
Blecker argues that some people deserve to die and that retribution presents the most compelling case for the death penalty.
Cardinale and Blecker also said that evidence is growing that the death penalty does deter people from committing murder. Cardinale said that one study showed that each execution correlates with about 74 fewer murders the following year, although other studies suggest a far more modest deterrent effect.
The two also said that if New Jersey wants to seriously consider abolishing the death penalty, lawmakers should give the issue the time and consideration it deserves. Both characterized the New Jersey Death Penalty Study Commission, which concluded earlier this year that the state should abolish capital punishment, as biased.
"Attempting to sneak this enormously important public policy proposal during the lame duck session is appalling," Blecker said.
New Jerseyans for Alternatives to the Death Penalty countered that
Blecker's comments and papers were carefully considered, reviewed and
ultimately rejected by the members of the Death Penalty Study
Commission. Rest of Article. . . [Mark Godsey]
For the First Time, the Number of People Given Life Sentences Outnumbers People Immediately Executed in China
From chinadaily.com: For the first time in New China's history, the number of criminals given death sentences with a two-year reprieve - which usually translate into life imprisonment - have this year outnumbered those sentenced to immediate execution, the country's top judge said on Friday.
This reflects the new trend since the Supreme People's Court (SPC) took back the right to review death sentences from local courts on January 1, Chief Justice Xiao Yang said.
"The number of death sentences has been gradually decreasing and human rights are being better protected," Xiao told a national work conference on court reform, without elaborating.
Capital punishment should be given "only to an extremely small number of serious offenders", he said.
"The judicial reform process has been progressing smoothly, with leniency shown in a growing number of criminal trials," he said.
In Jiangxi Province, the number of death sentences with immediate execution issued up to October was just half what it was in the same period last year, Kang Weimin, president of the provincial high people's court, said. Rest of Article. . . [Mark Godsey]
Saturday, November 24, 2007
This week the CrimProf Blog spotlights University of Montana School of Law CrimProf Margaret "Peggy" Tonon
Peggy Tonon is the Director for Student Affairs, Clinical Director, and a Clinical Supervisor. A graduate of Bates College and The University of Montana School of Law, she was a Deputy County Attorney for sixteen years, where she prosecuted everything from goats running at large to deliberate homicide before joining the faculty in 1990.
As a Clinical Supervisor, she supervises the three external prosecution clinics which represent city, county, and federal governments. As Director for Student Affairs, she is responsible for academic advising and student organizations.
She has been the recipient of the Robert and Pauline Poore Faculty Service Award and the Margery Hunter Brown Faculty Merit Award recognizing service to the law school community.
She is a member of the Western Montana Bar Association and the American Bar Association. She is also a member of the Clinical Section of the Association of American Law Schools and the Clinical Legal Education Association.
Her service to the Montana Bar includes membership on the Commission on Courts of Limited Jurisdiction and the Evidence Commission.
Tonon resides in Hamilton, Montana, with her husband, Warren Neyenhuis.
Got a call from the inventor of a product that allows law enforcement officers to restrain a person without getting close to them--a remotely operated mechanical restraint attached to the bumper of the car. Remote handcuffing could improve officer safety because an individual could be restrained without the officer getting close enough to come into physical contact. Here's a link to a Youtube Video. Leave a comment if you have an opinion about the device. [Jack Chin]
Friday, November 23, 2007
Boston University School of Law CrimProf Tracey Maclin recently published Police Interrogation During Traffic Stops: More Questions than Answers on SSRN. Here is the abstract:
This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.
Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the principle that the F! ourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.
In Mendez, however, Judge Reinhardt reversed circuit precedent and ruled that during routine traffic stops, police are free to questions motorists about any subject, provided such questioning does not prolong the length of the traffic stop. Judge Reinhardt's opinion was based on his reading of two Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005). Judge Michael McConnell has adopted the same rule for the Tenth Circuit in United States v. Stewart, 473 F. 3d 1265 (10th Cir. 2007).
The article explains how Judge Reinhardt and Judge McConnell have misread Caballes and Mena. Their rulings have not only given police the authority to arbitrarily question motorists about ! criminal behavior, but also directly contradict the Fourth Amendment command that an investigative intrusion must be strictly tied and justified by the circumstances which render its initiation permissible. The judges' interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio. [Mark Godsey]
Tuesday, November 20, 2007
Cali Supreme Court Seeks Amendment to Allow Death Penalty Appeals to Go to Appellate Courts Instead of Supreme Court
From ap.org: The State Supreme Court will seek an amendment to the California constitution that would change the death penalty appeals process to help ease the court's backlog of cases, the chief justice said.
Under the current system, death sentences are automatically appealed to the California Supreme Court.
The proposal would allow many cases to be handled by one of the state's six appeals courts, with the high court stepping in when a significant legal issue needs resolution or justices find another reason to review it.
The number of automatic death sentence appeals already threatens to overwhelm the Supreme Court's docket, making up about 20 percent of the court's caseload, Chief Justice Ronald M. George said.
"I don't want to pretend this is going to solve all the problems. But it will solve a big part of it," he said Monday.
The average wait for execution in the state is now 17.5 years. The backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade. Rest of Article. . . [Mark Godsey]