April 7, 2007
CrimProf Ruth Jones Discusses Where to Draw the Line With Deadly Force
From sacbee.com: McGeorge School of Law Crimprof Ruth Jones recently discussed the line where the use of deadly force is appropriate and when it is not.
This discussion arose from 2 recent cases where deadly force was used. The first case involed an off-duty Sacramento County sheriff's deputy fatally shot a man who she said had crept into her Roseville home late Tuesday night and tried to sexually assault her. Hours later, in a south Sacramento neighborhood, a father of four shot and wounded a teenager who he said was trying to break into his car.
The second case involved Sou Saechin, the 42-year-old father, was trying to protect the family car, his wife said Wednesday. Sacramento police arrested him on charges of assault with a deadly weapon. The deputy, who authorities say was acting in self-defense, remains free.
"The law does not want people to use deadly force unless they absolutely have to," said CrimProf Ruth Jones. "In the situations when someone is at risk of physical injury to themselves or others, you can meet that kind of deadly force with deadly force of your own." However, Jones said, "merely protecting your property is insufficient reason to use deadly force." Rest of Article. . . [Mark Godsey]
April 6, 2007
CrimProf Blog Spotlight: Leah Wortham
April 5, 2007
Protect Yourself: Run A Background Check on Lovers and Roommates
From seattlepi.mwsource.com: The day may come when running background checks on a roommate or romantic partner will be as common as getting an annual physical.
Several private investigators in Seattle -- reflecting on two recent cases in which women were killed by romantic partners who turned out to be disguising shady pasts -- find it difficult to believe that such searches aren't common practice already.
"If you're involved in a relationship that's going to affect your whole life, what could be of greater value?" asked Linda Montgomery, a private investigator in Ballard who believes that even people who are dating should be willing to share credit reports.
Though experts have access to databases that average citizens do not, there are measures that anyone can take to collect helpful information -- or at least confirm the veracity of what they've been told.
"I think it should become acceptable for people to say, 'Hey, I'm going to check you out.' It needs to be a thing like going to a doctor for a checkup," Montgomery said. Rest of Article. . . [Mark Godsey]
NM Passes Law to Prevent Prosecution of Drug Users Seeking Treatment For OD
From NYTimes.com: Struggling with an epidemic of drug fatalities, New Mexico has enacted a groundbreaking law providing immunity from prosecution for people who come forward to help drug users suffering overdoses.
The act, signed into law Tuesday by Gov. Bill Richardson, prevents the authorities from prosecuting on the basis of evidence “gained as a result of the seeking of medical assistance.”
It also protects drug users themselves from prosecution if the process of seeking help for an overdose provides the only evidence against them.
The legislation, which was popularly known as the 911 Good Samaritan bill, is the first of its kind in the nation, according to the National Conference of State Legislatures.
In a statement yesterday, Mr. Richardson, who is running for the Democratic presidential nomination in 2008, said: “I have always been committed to prevention and rehabilitation of drug users. If we can encourage people to save themselves or others from a drug-related death or trauma, then we should do that. This bill will encourage families and friends of addicts to seek medical care and prevent their loved one from dying.” Rest of Article. . . [Mark Godsey]
CrimProf David Paciocco Discusses the Paper Work Behind White Collar Cases
University of Ottawa CrimProf David Paciocco recently discussed the tedious tasks that coincide with White Collar investigations
CrimProf Paciocco said the nature of white-collar crimes requires investigators to sift through piles of documents and numbers, making it very difficult for them to put the case together.
He discussed this topic in light of a recent case in which a missing Canadian investment broker has been charged with fraud, five years after dozens of his clients lost the retirement savings they had invested with him.
An arrest warrant has been issued for Bruce Elmore, who has disappeared, but was charged on March 14 despite his absence, the RCMP told CBC Tuesday. Now the bankruptcy trustee who investigated the case and some of the victims are raising questions about the way the RCMP handled the case, asking why they were not informed about the charges. Rest of Article. . . [Mark Godsey]
April 4, 2007
Cali Innocence Project Directors Justin Brooks and Jan Stiglitz Recieve Award for Freeing Their 5th Innocent Inmate
The California Innocence Project at California Western School of Law recently won two awards for freeing their fifth wrongfully convicted inmate, Timothy Atkins. The Criminal Defense Bar Association selected Professors Justin Brooks and Jan Stiglitz, co-directors of the project, Post-Conviction Lawyers of the Year. Additionally, the Federal Community Defender Organization's Special Board of Directors Award will be presented to the project for the result in the Atkins case, and so many other important cases, April 13 .
"California Western School of Law and San Diego are lucky to have such a dedicated and tenacious team of lawyers and law students seeking out and reversing injustices," said Mark Adams, president of the Criminal Defense Bar Association. "The volunteer work of the many students working in the California Innocence Project is truly an inspiration to those of us in San Diego's Criminal Defense Bar."
California Innocence Project presented new evidence, including a witness who recanted her trial testimony, proving Atkins' innocence. He was released from the L.A. County Jail Friday, Feb. 9, after spending more than two decades behind bars.
"This is a great honor in a city with so many outstanding attorneys," said Brooks, who started the California Innocence Project at California Western in 1999 . "I share these awards with my students. I truly stand on their shoulders when I am in court. They gather the evidence every day that leads to our successes."
The California Innocence Project has developed a national reputation for securing the release of innocent clients. Thanks to the work of the project's students, law professors, and staff, five men were released, after serving a combined 76 years in prison for crimes they did not commit.
"Congratulations to my staff, Jeff Chinn, Kim Hernandez, and Alex Simpson and to all my students, especially Wendy Koen and Alissa Bjerkhoel whose hard work on the Timothy Atkins case was particularly important to the release of Timothy Atkins," said Brooks. "We couldn't have done it without you."
CrimProf George E. Edwards Returns From Guantanamo
Indiana University School of Law International CrimProf and Director of the Program in International Human Rights Law (PIHRL) George E. Edwards recently returned to the U.S. from Guantanamo Bay, Cuba where he worked on the defense side of the first U.S. Military Commission to be completed since World War II.
He worked on the case of David M. Hicks, an Australian, who pleaded guilty at the end of March to one charge of "material support for a terrorist organization." Since 2004, the PIHRL has been providing research assistance to the Military Commissions on U.S. v. David Hicks.
CrimProf John Myers Discusses Decision not to Prosecute Radio Station for Hold Your Wee for Wii Death
From mobee.com: McGeorge School of Law CrimProf John Myers recently discussed the reasons why Sacramento County prosecutors will not file criminal charges against radio staff in the water-drinking death of a Rancho Cordova mother of three.
Jennifer Lea Strange, 28, participated in an on-air "Hold Your Wee for a Wii" contest in the break room of KDND on Jan. 12. Contestants were challenged to drink as much water as possible without vomiting or urinating, with the hold-out winning a Wii Nintendo gaming console.
Prosecutors noted that Strange participated willingly and could have left at any time. Also, she was not in danger of a medical emergency that would have been apparent to the "Morning Rave" staff, the statement says.
"Any reasonable person wouldn't have concluded that she was seriously ill or in danger of dying," said district attorney's spokeswoman Lana Wyant. "There were no red flags."
Strange came in second place and said on air that her head hurt and she felt lightheaded. Hours later, Strange's mother found her dead in her home. Sacramento coroner's officials said she died of apparent water intoxication.
CrimProf John Myers outlined the role played by the idea of "duty of care." On one hand, he said, there was no responsibility like what a parent has to a child. But on the other hand, the radio station brought contestants "into the fold," presiding over the contest.
"This is a tough call — but exactly the kind of tough call where we want prosecutors to exercise their discretion," he said. Rest of Article. . . [Mark Godsey]
April 3, 2007
Franklin Pierce Law Center Clinic and CrimProf Chuck Temple Win Extradition Cost Case
Franklin Pierce Law Center's Criminal Practice Clinic recently won a precedent setting case involving the imposition of extradition costs as restitution in a criminal case.
"This case presented unique legal issues regarding the construction of multiple statutes dealing with restitution, extradition, and recovery of court costs. It marks a significant victory for defendants faced with the payment of substantial extradition costs in criminal cases," says CrimProf Chuck Temple, director of the Criminal Practice Clinic.
"A client of the clinic was ordered by the Superior Court to pay the costs of his extradition from Florida to New Hampshire as part of his sentence on a felony probation violation," explains Temple.
Third-year student Joseph Plaia submitted a Memorandum of Law and argued the case before Judge Carol Conboy in Merrimack County Superior Court.
"Plaia argued that the applicable statutes did not authorize the imposition of extradition costs as restitution against his client," says Temple. "In his oral argument, he persuasively argued that the State could not be a victim for restitution purposes under the applicable statutes. Judge Conboy agreed with Plaia and issued a decision from the bench ruling that the State could not recover extradition costs as restitution."
Dan Dargon, a second-year student, wrote the Memorandum of Law with Plaia. Students in the Criminal Practice Clinic are certified by the New Hampshire Supreme Court to practice in New Hampshire under the supervision of Clinic Director Charles Temple. They represent indigent defendants in the district and superior courts. The clinic handles a variety of misdemeanor and felony cases. [Mark Godsey]
CrimProf Eric Muller Files Amicus Brief For WWII and 9-11 Racial Victims
University of North Carolina at Chapel Hill George R. Ward CrimProf Eric Muller will filed an amicus curiae brief that brings together the painful history of Japanese families interned during World War II and the post 9-11 era that resulted in thousands of male Muslim non-citizens from Arab and South Asian nations being held in custody.
As part of the ongoing Turkmen v. Ashcroft case filed by the Center for Constitutional Rights (CCR), Professor Muller will file the brief in the United States Court of Appeals for the Second Circuit in New York on behalf of the children of Japanese Americans who challenged their World War II internment in the United States Supreme Court in the early 1940's.In the brief, he will argue that the appellate court should reverse a trial court decision holding that the government has nearly limitless power to single out aliens for lengthy detention on the basis of race, religion, and ancestry.
Professor Muller's clients are children of three Japanese Americans who gained unwelcome notoriety when they unsuccessfully challenged the government's racial curfew and detention programs in the United States Supreme Court during World War II.
Professor Muller's clients' interest in the Turkmen v. Ashcroft case is in avoiding the repetition of a tragic episode in American history that is also, for them, painful family history. That history is not the ordeal suffered by their well-known fathers who were American citizens of Japanese ancestry, but rather that suffered by their grandparents ? aliens in the United States at the outbreak of war in December 1941.
Like the grandparents of Professor Muller's clients, the plaintiffs in the matter now before the New York court are also non-citizens.They were, according to Professor Muller and his clients, similarly subjected to a wrongfully prolonged and lawless detention during a national security crisis on account of their race and national origin.The brief argues that the federal trial judge's legal theory for dismissing the Plaintiff's complaint in Turkmen v. Ashcroft is identical to the legal theory that permitted the internment of Japanese aliens during World War II.
It took over forty years for the Congress and the President to acknowledge and apologize for the treatment of the Japanese internees and to offer them compensation.Professor Muller says that he is filing the amicus curiae brief in the hope that the Plaintiffs in Turkmen v. Ashcroft will not have to wait four decades for the justice that his client?s grandparents' generation so belatedly received.
Rest of Article. . . [Mark Godsey]
United Nations Special Prosecutor Will Speak at Drake Law School
Stephen Rapp, LW'74, The Prosecutor of the United Nations Special Court for Sierra Leone (SCSL), will return to Drake Law School Thursday, April 12. He will meet with students and faculty and deliver a lecture titled "The Compact Model in International Criminal Justice: The Special Court for Sierra Leone," which is free and open to the public.
The Special Court, an independent tribunal established jointly by the United Nations and Sierra Leone, is tasked with bringing to justice those responsible for atrocities committed during a civil war in the west African country after November 1996. The Special Court has jurisdiction over the case against the notorious former Liberian President Charles Taylor, whose trial will be held at The Hague in the Netherlands.
Prior to joining the SCSL, Rapp served as chief of prosecutions at the International Criminal Tribunal for Rwanda (ICTR) from May 2005 until December 2006, supervising the prosecution of those accused of the worst crimes during the 1994 Rwandan genocide.
Rapp worked previously as a U.S. attorney in the state of Iowa for almost eight years. He also spent time as an elected member of the Iowa Legislature and as a lawyer for the U.S. Senate Judiciary Committee.
Rapp is best known internationally for successfully prosecuting media executives who helped incite the Rwanda's extremist militia as well as broadcast the whereabouts of Tutsi sympathizers -- a conviction that scholars say sets important precedent for future cases before the International War Crimes Tribunal at The Hague.
"We’re thrilled Stephen Rapp is returning to Drake Law School," said Law School Dean David Walker. "His work is extraordinarily important, and we are immensely proud and grateful for the work he does and all that he has achieved." [Mark Godsey]
9th Cir: Willful Ignorance of Crime = Knowledge
Yesterday, the 9th Circuit published an opinion allowing juries to be instructed that a defendant's willful ignorance of a crime amounts to knowledge of the crime. In other words, if a defendant claims she didn't know she was committing a crime, but she probably should have known, her state of mind is akin to knowlege. Needless to say, defense attorneys take issue with the ruling.
In his opinion for a 15 member en banc panel, Judge Alex Kozinski said, he wanted to "clear away the underbrush"..."of narrow, heavily fact-dependant and at times contradictory opinions that have been difficult for both judges and litigants to navigate" regarding when "knowledge" exists. Ten of the fifteen members of the panel agreed that trial judges should have broad discretion in instructing a jury that a defendant's willful ignorance amounted to knowledge of criminal activity.
The majority opinion came in the case of Carmen Heredia, caught driving her aunt's car from Mexico into Arizona with about 350 pounds of pot in the trunk. Heredia said she hadn't known about the drugs, though she admitted she'd been suspicious of the overwhelming smell of fabric softener--and of her aunt's explanation that she'd spilled some in the car. U.S. District Judge John Roll of Arizona gave the jury a "Jewell instruction," telling them that if Heredia had intentionally ignored criminal conduct, they could decide she'd had knowledge of it. Story from The Recorder at Law.com. . . [Michele Berry]
The Depravity Scale: Adding Method to Judging Criminal Depravity?
This NYTimes story focuses on the efforts to two researchers to develop a framework with which to objectively gauge the culpability of particularly cold-blooded killers. The article explains how the work of one the researchers, Dr. Michael Wellner, a clinical associate professor of psychiatry, who developed the so-called "depravity scale," could apply in death penalty proceedings. He is at work on the “depravity scale” to aid juries in separating the worst of the worst from the really bad. It is based on an Internet survey that asks respondents to rank various acts in order of heinousness.
From TheDepravityScale.org: "To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences.
This research will refine into the Depravity Standard, an objective measure based on forensic evidence. This instrument distinguishes not who is depraved but rather, what aspects of a given crime are depraved and the degree of a specific crime's depravity."
According to the reasearchers, the depravity scale research will enhance fairness in sentencing, given that it is race, gender and socio-economic blind. But, CrimProf Robert Blecker, an authority on the death penalty at New York Law School who sits on an advisory board assisting Dr. Welner, is worried about how a numerical scale would be used in practice. “Would it remove the arbitrariness?” he asked. “Or merely give the illusion of objectivity?” Story here. . . [Michele Berry]
SCOTUS Refuses to Hear Detainee's Case
From NPR.com: The Supreme Court refuses to hear an appeal from Guantanamo Bay detainees who want to challenge their imprisonment. The refusal to review the federal law delivered a major, though perhaps temporary, victory to the Bush administration.
The law strips prisoners being held at Guantanamo Bay, Cuba, of the right to challenge their detentions in court.
The justices don't normally give their reasons for not taking cases, but this time, two justices released a statement saying they're waiting to see if the special military courts adequately handle the detainees.
But in the detainee ruling, Justices Stevens and Kennedy said they would be in favor of hearing an appeal if the Bush administration delays the military proceedings.
For now, the detainee cases will go back to the U.S. Court of Appeals, which under the Detainee Treatment Act is designated as the only court designated to review detainee proceedings.
The appeals court, however, has only limited jurisdiction. It cannot hear any new evidence, and it must accept the evidence of combat status review panels set up by the military to determine whether a prisoner is an enemy combatant. Listen. . . [Mark Godsey]
Con Law Prof William W. Van Alstyne Questions Domestic Spying and Suspending Habeas Corpus
William & Mary Lee Professor of Law William W. Van Alstyne, one of the nation’s foremost constitutional law scholars, has signed two collaborative briefs written with other legal scholars and former government officials. The first is for a case pending in the Sixth Circuit Court of Appeals and concerns President Bush’s authorization of the domestic spying program. The second is for a case pending in the Fourth Circuit Court of Appeals and addresses joint presidential and congressional efforts to suspend the writ of habeas corpus.
On Jan. 9, 2006, Van Alstyne co-signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program, a program secretly authorized by the President that allowed the agency to conduct electronic surveillance without warrants of anyone in the United States. Co-signers of the letter included a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter stated that the Bush administration should have pursued a legislative amendment to the Foreign Intelligence Surveillance Act (FISA) before moving forward with the spying program.
Shortly afterward, Van Alstyne and the group wrote a second letter to Congress, dated Feb. 2, 2006, in response to a Jan. 19 memoradum issued by the Justice Department.
Van Alstyne joined with the same group that wrote the letters to file a brief in a case currently pending in the Sixth Circuit Court of Appeals. Van Alstyne said he was motivated to collaborate on the brief because he has “a genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”
In this Sixth Circuit case, the government is appealing a federal district court decision holding, as the letters to Congress that Van Alstyne co-signed suggested, that the executive order authorizing domestic surveillance without going through the court for a warrant was invalid. The case was argued earlier this year and the parties are awaiting the court’s decision.
In a separate case, Van Alstyne joined in a brief with colleagues from Harvard, Duke, Stanford, and the University of Virginia addressing efforts to suspend the writ of habeas corpus that people who are being held in custody can invoke when they want the courts to determine if there is any legitimate reason for them to be held. The jointly-authored brief was filed with the Fourth Circuit Court of Appeals in early 2007.
In examining the extent to which Congress can make habeas corpus unavailable, Van Alstyne said, “Habeas corpus is a fundamental part of the Constitution. This is a very important issue of American justice and human rights.” The filed brief concludes that Congress has not removed authority of courts to hear these types of cases, as the President has suggested, and that they should be heard.
Rest of Article. . . [Mark Godsey]
CrimProf Ronald Bacigal Discusses Richmond's Drop in Crime
From TimesDispatch.com: University of Richmond School of Law CrimProf Ronald J. Bacigal discussed Richmond, VA's drop in crime since 2006.
There has been a 78 percent drop in deadly violence in Richmond since 2006. Statistics obtained by The Times-Dispatch show fewer violent crimes such as rape, aggravated assault and robbery of an individual. Property crimes -- arson, bur- glary, larceny and auto theft also have dipped markedly in the first three months of 2007 compared with the same period last year.
Major crime -- a combination of all violent crimes and property crimes -- is down 18 percent.
"It's been long enough now that it's looking like it's not just a momentary blip," said Ronald J. Bacigal, a former prosecutor and defense lawyer, now a professor of criminal law and criminal procedure at the University of Richmond's School of Law.
"It looks like something is going on," he said, reflecting on the continuing downward trend in deadly violence. "But I'll leave it to the sociologists to figure out exactly what that is."
Rest of Article. . . [Mark Godsey]
North Carolina Executions May Lead to Wrongful Death Suits
In 2006, U.S. District Judge Malcolm J. Howard allowed two men to be executed by lethal injection after prison officials indicated that a physician and a nurse at the execution would monitor a type of brain-wave machine to ensure that the inmates were unconscious and not in pain when the paralyzing and heart-stopping drugs were injected. However, a deposition given in November 2006 by Central Prison warden Marvin Polk is now raising questions about whether the judge was misled. In his testimony, Polk disclosed that a physician did not read the brain-wave machine, a bispectral index monitor (BIS), to monitor the inmates' consciousness during the state's past two executions. In light of Polk's testimony, lawyers for the two executed men are considering a wrongful death lawsuit and a motion asking Judge Howard to hold prison officials in contempt. Special Deputy Attorney General Thomas Pitman, who is representing the prison system in this matter, maintains that Judge Howard's ruling never explicitly stated that a doctor would monitor the inmate's consciousness during an execution. [Michele Berry]
NPR Examines the War on Drugs
In a five-part series, The Forgotten War, NPR examines the progress in the past 38 years and the challenges ahead in the war on drugs. The series is the result of six months of interviews of more than 100 people — including former drug czars, former addicts and drug smugglers, and Drug Enforcement Agency agents on the frontlines of the war. The series looks at efforts to fight drug production in Colombia and thoughts on how the widespread incarceration of drug offenders in the late 1980s and early '90s is affecting American cities today. Here is Part 1 of 5. . . [Michele Berry]
April 2, 2007
Prosecutor's Quest to Exonerate an Innocent Man. . .
in a novel due out in January '08, that is. Read about how San Mateo County Deputy District Attorney Al Giannini and bestselling crime writer John Lescroart are partners in crime writing, here from the San Jose Mercury News. . . [Michele Berry]
April 1, 2007
Peace, Harmony, and Crime Fighting--it's all OK
Oklahoma City's top federal prosecutor, John Richter, may be a Sooner, but he's a stranger to turf disputes. Richter has made a concerted effort to reach out to local prosecutors and law enforcement agencies to bring new focus to local criminal activity in the federal western district. In an interview with The Associated Press, Richter said a key role of the US Attorney's Office is to pool resources with state and local authorities to investigate and prosecute local crime and to avoid turf disputes.
Under Richter's leadership, city and county officials have teamed with others from the state and federal governments in multi-jurisdictional task forces that focus on drug trafficking, organized gangs, the sexual exploitation of children and identity theft. At the end of 2006, charges had been filed against more than 45 gang members. Story from KSWO.com. . . [Michele Berry]