April 28, 2007
FBI Asks Civil Liberties Groups for Help
From NPR.com: Last week, the FBI did something unusual: It invited civil liberties groups to FBI headquarters to work on a draft of new guidelines for the use of National Security Letters. The letters are special subpoenas the FBI can issue, without a court order, that permit agents to search telephone, e-mail and financial records. Nobody expected to leave the room satisfied and happy, but just the fact that the two sides sat down together marked a big change. Listen. . . [Mark Godsey]
April 27, 2007
CrimProf Spotlight: David Chang
At first glance, David Chang’s reserved exterior belies the deep feelings he has for righting society’s wrongs, especially with regard to racial discrimination. But his passion and commitment to addressing these issues quickly become clear not only through his conversation and writings, but also through his actions.
Former cochair of the New York City Gay and Lesbian Anti-Violence Project, Professor Chang worked hard to combat some of the City’s most heinous incidents of brutality and to push for legislative remedies through the passage of anti-hate crimes statutes.
“Hate-motivated violence is perhaps the most fundamental denial of community and human rights,” he says with conviction. He has written extensively on hate crimes legislation and the constitutionality of affirmative action policies, finding himself “almost obsessed with the problems of achieving racial justice in a fundamentally racist society.” He has also worked with the Los Angeles-based Center for Law in the Public Interest. He is now chairman of the Board of Directors of Pratt Area Community Council, an organization that serves a wide range of housing-related needs for low- and moderate-income residents of Brooklyn.
His scholarship has been recognized as outstanding. In 1992, New York Law School presented the Walter M. Jeffords Distinguished Writing Award to Professor Chang for his article, “Discriminatory Impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?” (Columbia Law Review, 1991) and in 2001, the Otto L. Walter Distinguished Writing Award for his article, “Selling the Market-Driven Message: Commercial Television, Consumer Sovereignty, and the First Amendment” (Minnesota Law Review, 2000).
While at Yale Law School, where he received a J.D. in 1982, Professor Chang became interested in First Amendment issues and constitutional litigation, due in part to a summer internship with the in-house counsel at The Washington Post. He also realized during his first year at law school that he wanted to teach, finding his Yale professors inspiring. “I found that I enjoyed the academic approach to exploring questions; to coming up with better ways of thinking about problems,” he explains.
Professor Chang, who has been on the New York Law School faculty since 1983, brings this appreciation for intellectual development into his classroom.
“I am very impressed with New York Law School students, and find them serious and committed. Their accomplishments, especially among the Evening Division students, are often amazing,” he says.
Outside of academics, Professor Chang also has many passions, including restoration of his Victorian-style brownstone in Brooklyn, pool, golf, photography, and his dog Kenya. [Mark Godsey]
April 26, 2007
HIgh School Senior Arrested for Writing an Essay for Creative Writing Class
From chicagotribune.com: Told to express emotion for a creative-writing class, high school senior Allen Lee penned an essay so disturbing to his teacher, school administrators and police that he was charged with disorderly conduct, officials said Wednesday.
Lee, 18, a straight-A student at Cary-Grove High School, was arrested Tuesday near his home and charged with the misdemeanor for an essay police described as violently disturbing but not directed toward any specific person or location.
Neither police nor the school would release a copy of the essay written Monday. School officials declined to say whether Lee had any previous disciplinary problems, but said he was an excellent student. Authorities said Lee had never been in trouble with the police.Rest of Article. . . [Mark Godsey]
Justice Dept Asks Fed Ct to Restrict Lawyers at Guantanamo
From NYTimes.com: The Justice Department has asked a federal appeals court to impose tighter restrictions on the hundreds of lawyers who represent detainees at Guantánamo Bay, Cuba, and the request has become a central issue in a new legal battle over the administration’s detention policies.
Saying that visits by civilian lawyers and attorney-client mail have caused “intractable problems and threats to security at Guantánamo,” a Justice Department filing proposes new limits on the lawyers’ contact with their clients and access to evidence in their cases that would replace more expansive rules that have governed them since they began visiting Guantánamo detainees in large numbers in 2004.
The filing says the lawyers have caused unrest among the detainees and have improperly served as a conduit to the news media, assertions that have drawn angry responses from some of the lawyers.
The dispute is the latest and perhaps the most significant clash over the role of lawyers for the detainees. “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country,” the Justice Department filing argued. Rest of Article. . . [Mark Godsey]
SCOTUS Rules on Three Habeas Cases
The U.S. Supreme Court on April 25 issued three habeas corpus rulings overturning death sentences imposed in Texas.
In Abdul Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, 05-11287, the court held that Texas courts' rulings that the state's former capital sentencing scheme allowed penalty phase jurors to give constitutionally adequate consideration to mitigating evidence of mental impairment or childhood neglect and abuse constituted, for purposes of the federal habeas corpus statute, an "unreasonable application" of Penry v. Lynaugh and other Supreme Court caselaw interpreting the Eighth Amendment.
In Smith v. Texas, No. 05-11304, the court reaffirmed an earlier ruling that the petitioner's death sentence was fatally flawed under the same Texas sentencing scheme, and it decided that the state courts misunderstood the basis of court's prior ruling when they applied a rigorous standard of review en route to upholding the sentence on remand. [Mark Godsey]
April 25, 2007
Inmates Put To Death May Be Cruelly and Unusually Suffering
From orlandosentinel.com: Inmates put to death by lethal injection are supposed to die quickly and painlessly, but they actually might suffocate aware and in agony, a team of researchers concluded in a study released Monday.
In the report in the online publication "PloS Medicine," the eight-member team said the lethal drug cocktail used by dozens of states, including Florida, is flawed because the mixture doesn't necessarily work as intended.
"The reason that polls show most people support lethal injection is because they believe it is a humane medical procedure," said Teresa Zimmers, lead author of the study and a molecular biologist at the University of Miami's Leonard Miller School of Medicine. "We provide more evidence that it might be anything but. There's no question it's not a medical procedure. That is a sham."
Under the lethal-injection protocol, which Florida and most states copied from Oklahoma, three drugs are meant to work in combination to render inmates unconscious and then cause death by respiratory and cardiac arrest. Each drug is also supposed to be lethal on its own.
But the researchers, who analyzed drug dosages and the time between injection and death in 42 executions in North Carolina and eight in California, found that the first drug, an ultra-fast-acting barbiturate, might not be fatal or sufficient to keep inmates unconscious for the duration of their executions.
They also found that the third and final drug, potassium chloride, did not always induce cardiac arrest as intended. As a result, the researchers said, potentially aware inmates might die through painful asphyxiation induced by the second drug, pancuronium, which paralyzes the muscles. Rest of Article. . . [Mark Godsey]
Fed Gun Regulations Against Mentally Ill is Full of Holes
From NPR.com: Federal law prohibits many people with mental illness from buying a gun. Their names are supposed to be stored by the FBI. But critics say the bureau's database is full of holes. Listen. . . [Mark Godsey]
CrimProf Jane Aiken and Civil Justice Clinic Frees Missouri's Oldest Female Inmate
A 77-year-old victim of domestic violence will be released from prison thanks to the tireless efforts of Washington University in St. Louis CrimProf Jane Aiken and the Civil Justice Clinic. After Aiken and third-year law student Olivia Bradbury successfully argued a habeas petition, the Missouri Supreme Court has ordered that the Missouri Board of Probation and Parole set conditions of parole for the clinic's client.
The oldest female inmate in Missouri, Shirley Lute has been incarcerated for 29 years for her role in the murder of her abusive husband. The clinic initially was successful in helping Lute obtain a commutation from Governor Holden, but she then was denied parole.
Aiken and Bradbury, who served as second chair, argued that “the parole board grossly exceeded its authority, when it ignored the governor’s intent and instead of weighing the merits of Shirley Lute’s exit plan, focused on the commission of the original crime,” Aiken said.
Aiken, the William M. Van Cleve Professor of Law and clinic director, said the Supreme Courts’ April 17 ruling is gratifying. “We are thrilled that our client will finally receive the justice she deserves. It has been a long time coming, but we are relieved that the Court has followed Governor Holden’s intent. Ms. Lute has been a model prisoner and has more than served enough time to satisfy the state’s interests in retribution, public safety, punishment, and deterrence. This is an important victory for victims of domestic violence.”
Bradbury added: "It has been an amazing experience to be involved in this case and to work so closely with Professor Aiken. It is a tremendous feeling that, as part of my law school education, I was able to help bring justice to Shirley Lute. I eagerly await the day she walks out of prison." Rest of Story. . . [Mark Godsey]
April 24, 2007
CrimProf Stephen I. Vladeck Spoke at "Crimes, War Crimes, and the War on Terror" Symposium
University of Miami Law School CrimProf Stephen I. Vladeck participated in a symposium at Lewis and Clark Law School in Portland, Oregon, titled "Crimes, War Crimes, and the War on Terror." Professor Vladeck was in a panel titled "The Other Criminal Process: War Crimes, Military Commissions, and Habeas Corpus," where he will present a new paper, titled "Enemy Aliens, Enemy Property, and Access to the Courts."
In this paper, Professor Vladeck examines the underexplored jurisprudence concerning who the "enemy" is, comparing the jurisprudence under the Alien Enemy Act of 1798, the Trading With the Enemy Act of 1917, and the so-called "enemy property" doctrine. The paper argues that courts have long played a central role in adjudicating claims by individuals that they are not, in fact, "enemies," and that the current debate over "enemy combatants" and access to the courts has completely neglected these earlier--and important--precedents. [Mark Godsey]
CrimProf Bonnie Fisher's Stalking Study Cited
From USATODAY.com: University of Cincinnati CrimProf Bonnie Fisher's 2000 Stalking Study was referred to in USA Today in a discussion on the problem of stalking.
The most widely cited national survey, published in 2000, found that 13% of college women said they had been stalked in the previous seven months, says the study's primary author, CrimProf Bonnie Fisher. Stalking is generally defined as a repeated pattern of behavior or conduct that causes a reasonable person to feel fear, she says.
The problem has not diminished since that survey, says Mary Lou Leary, executive director of the National Center for Victims of Crime. Specialists in violence against women still quote the survey.
"Stalking is definitely a problem on college campuses," says Alison Kiss, program director for the non-profit group Security on Campus. "And it usually escalates, just like dating violence." Rest of Article. . . [Mark Godsey]
The Struggle Between Marriage and Prison
From goodmagazine.com: According to Good Magazine, Nearly half a million women are married to men in prison. Maintaining these relationships involves a constant struggle with an often unsupportive penal system, despite growing evidence that a healthy marriage is one of the best tools for rehabilitation. Welcome to the intersection of prisons, love and politics.
In a national climate where the promotion of marriage is prioritized and new incarceration initiatives are being introduced across the country, the intersection of prisoners and matrimony appears to be a political blind spot. The wives of inmates are still largely without resources or assistance, grappling with often exorbitant phone rates, long distances to be travelled for visits, hypervigilant visitation rules, and restricted access to information about their husbands’ well-being. Right now, according to a report by a leading scholar named Creasie Finney Hairston, “The correctional policies and practices that govern contact between prisoners and their families often impede, rather than support, the maintenance of family ties.”
As it stands, the only major institutional assistance for these couples is an unlikely offshoot of government support for marriage. In 1996, Bill Clinton signed into law a welfare-reform act that supported the idea that marriage is a tool for overcoming poverty, calling “marriage … the foundation of a successful society.” President Bush recently upped the ante with the Healthy Marriage Initiative, committing $750 million over five years to marriage promotion, some of which is going to marital programs in prisons. Marriage, the argument goes, has been shown time and again to benefit the country in measurable ways: married couples have markedly lower instances of poverty and crime. For prisoners, it also helps lower rates of recidivism, a big deal in a country with a soaring prison population that recently passed the two million mark and where 67 percent of ex-convicts end up back in prison. According to a recent study, a steady marriage was the number one factor preventing recidivism. Now, 24 states are teaching prisoners and their spouses how to listen, express their feelings, and resolve conflict.
Faith-based groups have been doing similar work in prisons for decades. Sometimes called Marriage Encounters, these weekend marriage seminars are hosted by several guards, the prison chaplain, and volunteer instructors, like Wayne and Marcia Kessler in Las Vegas. “The first thing we do,” says Marcia, “is teach about talking on a feeling level and how feelings are different from thoughts and judgments. That no feeling is right or wrong. Anger isn’t wrong, but smacking someone is.”
Rest of Article. . . [Mark Godsey]
April 23, 2007
200th Person Exonerated by DNA Evidence
From USATODAY.com: A former Army cook who spent nearly 25 years in prison for a rape he did not commit is scheduled today to become the 200th person exonerated by DNA evidence, underscoring the quickening pace of overturned convictions, according to the Innocence Project.
The New York-based legal group says the 100th exoneration occurred in January 2002, 13 years after the first exoneration. It took just more than five years for the number to double.
"Five years ago, people said that the number (of exonerations) was going to dry up because there just weren't many wrongful convictions," said lawyer Barry Scheck, who co-founded the Innocence Project in 1992 to help prisoners prove their innocence through DNA evidence. "But clearly, there are plenty of innocent persons still in prison. There's no way you can look at this data without believing that."
David Lazer, a Harvard University public policy professor who specializes in DNA issues, says improved testing technology and an increase in the number of lawyers who are taking on DNA cases should result in a continued increase in the number of wrongful convictions that are set aside.
Rest of Article. . . [Mark Godsey]
More States Consider Line Up Reforms
From law.com: A continuing wave of exonerations and revelations about wrongful convictions linked to false eyewitness identification has led more states to consider reforming their lineup procedures with new guidelines and legislation.
A key factor is the order in which lineups should be shown as more states consider whether to replace the traditional simultaneous method with the sequential procedure, during which people or photographs are shown one after another rather than all at once.
Another common feature of the new procedures calls for a "blind" lineup, meaning the person administering it does not know who the suspect is. A movement to reform eyewitness identification procedures has been building in momentum for the last few years.
A reform bill in West Virginia has been awaiting the governor's approval and was one of 16 bills on eyewitness identification proposed in 10 states this legislative session, said Scott Ehlers, state legislative affairs director for the Washington-based National Association of Criminal Defense Lawyers.
In Illinois, a civil lawsuit over the issue was filed in February. And in New Mexico, an eyewitness identification bill was proposed for the first time this year.
"Bills seem to have been going further this year than in the past," Ehlers said. "Exonerations and the wrongful convictions: I think that is really pushing the issue." Rest of Article. . . [Mark Godsey]
Stop Snitchin Slogan Taken Seriously By Witnesses
From cbsnews.com: In most communities, a person who sees a murder and helps the police put the killer behind bars is called a witness. But in many inner-city neighborhoods in this country that person is called a "snitch."
"Stop snitchin'" is a catchy hip-hop slogan that embodies and encourages this attitude. You can find it on everything from rap music videos to clothing. "Stop snitchin'" once meant "don’t tell on others if you’re caught committing a crime."
But as CNN's Anderson Cooper reports for 60 Minutes, it has come to mean something much more dangerous: "don’t cooperate with the police – no matter who you are."
As a result, police say, witnesses are not coming forward. Murders are going unsolved.
Reluctance to talk to police has always been a problem in poor, predominantly African-American communities, but cops and criminologists say in recent years something has changed: fueled by hip-hop music, promoted by major corporations, what was once a backroom code of silence among criminals, is now being marketed like never before. Rest of Article. . . [Mark Godsey]
April 22, 2007
Cali Supreme Court Rules that Inmates with Normal IQ May be Spared from Death
From latimes.com: A defendant may be spared the death penalty because he is mentally deficient in one area, even if his IQ score falls in the normal range, the California Supreme Court decided Thursday.
The state high court's unanimous ruling rejected an appeals court decision that "full scale" IQ scores — composites of tests of various mental faculties — are the best measure of intelligence. The justices said courts may give greater weight to one measurement of IQ over another and that the best way to measure intellectual functioning may vary from case to case.
The decision gives judges broader discretion to spare defendants from execution for reasons of mental impairment and clarifies a 2005 ruling that allowed death row inmates to challenge their sentences on the grounds of mental retardation. That decision was triggered by a 2002 U.S. Supreme Court ruling that barred execution of mentally retarded inmates.
Because the legal definition of mental retardation does not rely on a fixed IQ score, trial courts may give greater weight to certain kinds of evidence than others, the court said.
"The question of how best to measure intellectual functioning in a given case is thus one of fact to be resolved in each case on the evidence, not by appellate promulgation of a new legal rule," Justice Kathryn Mickle Werdegar wrote.
John Philipsborn, who represented an association of criminal-defense lawyers in the case, said the ruling will affect at least 28 death row prisoners and at least eight defendants who are claiming mental retardation prior to trial. Rest of Article. . . [Mark Godsey]
NYPD Reacts to False Drug Testing Results
From nytimes.com: With the disclosure that two civilian employees reported false results in testing drug bags in 2002 at the police crime laboratory, Police Commissioner Raymond W. Kelly has ordered a shakeup of the Forensic Investigations Division and the creation of an oversight panel, the authorities said yesterday.
The changes come as a rebuke to the forensic unit’s former commander, Deputy Chief Denis McCarthy, who was recently transferred to a patrol division.
Chief McCarthy, a 27-year veteran of the department, was in charge in 2002 when the two employees were found to have engaged in “dry-labbing,” or cutting corners in the process of testing for drugs during an internal integrity test conducted by the department. In addition, the forensics unit failed to report the transgression to state officials and to a national laboratory accreditation board, as it is required to do.
Chief McCarthy’s transfer and the 2002 drug testing falsification were reported yesterday by The New York Post. Mr. Kelly said that Inspector Kevin J. Walsh, formerly of the Counter-Terrorism Bureau, had replaced Chief McCarthy as commander of the forensics division.
A spokesman for the Police Department, Paul J. Browne, said the falsified test results in 2002 had no bearing on actual court cases, since they were revealed in a routine procedure of “blind proficiency tests” designed as internal checks on the integrity and competence of civilian criminalists, 100 of whom are now employed by the crime laboratory.
But some critics are not convinced that it is an isolated incident. Peter Neufeld, a lawyer and co-founder of the Innocence Project, a New York-based legal group that uses DNA evidence to represent people it believes have been wrongly convicted, said it was unclear how many cases were affected in New York and elsewhere by such falsified lab work. Rest of Article. . . [Mark Godsey]
New Article Spotlight: Magistrates' Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century"
From SSRN.com: Widener University School of Law CrimProf Wes Oliver recently released "Magistrates' Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century." Here is the abstract:
The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century.
The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings.
The warnings remained in place until the newly elected New York judiciary began to retreat from the strict version of the confessions rule that prompted interrogators to give those warnings. The threat of losing statements to the confessions rule was greater than the threat that suspects would exercise the rights of which police advised them - at least until the judiciary substantially weakened the confessions rule.