CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, January 13, 2007

CrimProf Darryl Brown Discusses VA's New Evidence Law

BrowndkFrom Washington and Lee CrimProf Darryl Brown recently discussed the new evidence law in Virginia within the context of a a Aleck J. Carpitcher's case in which an alleged rape victim has now recanted.

Carpitcher's bid for freedom rests on the court's interpretation of a law passed by the General Assembly three years ago that reformed Virginia's infamous 21-day rule. Once the nation's most restrictive bar on new evidence, the rule had prevented Carpitcher from raising his young accuser's recantation as grounds for a new trial because it did not come within 21 days of his conviction.

The appellate court ruled last year that because Carpitcher could not prove which of the girl's stories was true -- her trial testimony or the account she gave five years later -- the recantation was not material. To meet the law's stringent requirements for a new trial, any newly discovered evidence must be material.

Lawyers for the Innocence Project, who represent Carpitcher, are asking the Supreme Court to overrule the appellate court's decision, which they state in a petition asking the court to hear the case, "neuters the statute, working an unfortunate injustice to Aleck Carpitcher" and others with similar claims.

"The Carpitcher case looks like a good one to tell us whether the innocence law will have any teeth or not outside the DNA context," said Crim Prof Darryl Brown. Yet "courts are very protective of judgments once they are entered," Brown said. That appeared to be the case Tuesday, at least based on questions raised by some of the Supreme Court justices. Rest of Article. . . [Mark Godsey]

January 13, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Friday, January 12, 2007

CrimProf Weekly Spotlight: Robin Charlow

Law_charlowThis week the CrimProf Blog spotlights CrimProf Robin Charlow of Hofstra University School of Law.

Professor Charlow graduated with honors from both Vassar College and Cornell Law School and is a member of the Order of the Coif. She teaches, writes and lectures primarily in the areas of constitutional and criminal law, with scholarly articles appearing in the Stanford, Cornell, and Texas Law Reviews and numerous media appearances. She has been recognized by students for her teaching contributions.

Prior to coming to Hofstra, Professor Charlow was law clerk to Judge Richard J. Cardamone of the United States Court of Appeals for the Second Circuit, appellate counsel in the Federal Defender Services Unit, a senior legislative analyst for the New York City Office of Management and Budget, and a full-time consultant to the National Advisory Committee of Federal Public and Community Defenders to fulfill that group's statutory responsibility to assist in the initial development of the Federal Sentencing Guidelines. Since joining the Hofstra faculty, she has served on various committees of the National Board of the American Civil Liberties Union and on the Executive Committee of the American Association of Law Schools Section on Criminal Law and Procedure.

January 12, 2007 in Weekly CrimProf Spotlight | Permalink | Comments (0) | TrackBack (0)

Thursday, January 11, 2007

Court Holds that Agents Has Broad Authority to Seize Files Associated With Warrant

From BNA Inc. Criminal Law Reporter: The Ninth Circuit says federal agents did not violate the Fourth Amendment when they copied a voluminous computer directory holding drug-testing records of hundreds of professional athletes as they executed a search warrant that authorized the seizure of such records relating to only a handful of Major League Baseball players. The ruling has broader implications for the confidentiality of all sorts of personal records maintained in a database when law enforcement officials obtain a search warrant for only some of them.

Read More. . . [Mark Godsey]

January 11, 2007 in Search and Seizure | Permalink | Comments (0) | TrackBack (1)

CrimProf Employment Opprotunity

The University of Denver Sturm College of Law seeks to hire one or more visiting faculty members for the 2007-2008 academic year. Appointments can be for either academic semester or for the entire academic year, depending on curricular fit.  We seek applications from entry level and experienced candidates with excellent academic records and demonstrated potential for outstanding teaching and scholarly achievement. Our primary curricular needs include Criminal Law, Criminal Procedure, Evidence, Civil Procedure and Family Law. 

Questions and applications can be addressed to Sam Kamin, Chair, Appointments Committee, University of Denver Sturm College of Law, 2255 East Evans Avenue, Denver, Colorado 80208.  You may also contact my assistant, Laura Wyant, at 303-871-6176 or

The University of Denver Sturm College of Law is committed to enhancing the diversity of its faculty and staff.  We encourage applications from women, minorities, people with disabilities and veterans. DU is an EEO/AA employer.

January 11, 2007 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 10, 2007

Linking Domestic Violence and Sports

From University studies have shown repeatedly that male athletes are at greater risk of violent behavior than non-athletes, that they are more likely to be aggressive with dating partners and more accepting of hostility toward women. One study found that male student athletes made up just 3.3 percent of the male population at the universities surveyed yet were accused of 19 percent of the sexual assaults on campus.

So why is abuse by athletes not an issue for sports fans? "Here's the deal," said Todd Crosset, a professor at the University of Massachusetts at Amherst. "For sport to work, they (fans) have to trust honest effort. Crimes against sports are gambling and steroids. What goes on off the court does not affect the game."

Crossett, who has studied extensively violence by athletes, cited as an example Philadelphia Phillies pitcher Brett Myers, who pitched the day after being cited for beating his wife outside a Boston bar in June. "He didn't commit a crime against the sport," Crosset said. "It's not about sport, it's about their private lives."

But multiple research studies at universities have probed the relationship between athletes and violence against women, and about their sense of being "above the law."

"There's the hubris there's the privilege, there's the acceptance of athletes of having character, money issues, all of those things come together," said Jay Coakley, another researcher at the University of Colorado at Colorado Springs.

"I come under heat for being 'overly negative about sports,' when in fact I'm trying to take a critical look at it," Coakley said. "Whereas most people are looking at sports through rose-colored cultural glasses that can't see any problems with sports itself."

Studies show dominant attitudes toward women and lesser men set in even before the athletes reach high school. Perhaps most disturbing, is the violence might not be random; instead, an outgrowth of the kind of mind control athletes need for a winning edge.

"Athletes are very instrumental in their violence," Crosset said. "They know exactly what they're doing. They're not coming unglued. They're terrorizing these women to get their way."

Rest of Article. . . [Mark Godsey]

January 10, 2007 in Miscellaneous | Permalink | Comments (1) | TrackBack (1)

Widener University CrimProf Comments on Dangling Girlfriend Murder

Oliver_151x266From Widener University CrimProf Wes Oliver recently discussed the murder trial of Kevin Eckenrode who is charged with third degree murder in the death of his girlfriend, who fell 23 stories from his apartment window. If convicted, Eckenrode could spend up to 40 years in prison. 

Professor Wes Oliver of Widener University said “We've all done stupid things when we're drunk. 'Wish I hadn't done that.' This is one he really wishes he hadn't done.”

CrimProf Oliver says the jury will decide whether or not Eckenrode acted with malice, a term that can mean conscious disregard for life, when the 25 year old dangled his reported fiancé’ out of the window at his high rise apartment last February.

“You can't get past the fact that the jury, when they look across the courtroom, the saddest person in the courtroom about this death is the defendant.” Rest of Article. . . [Mark Godsey]

January 10, 2007 in CrimProfs | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 9, 2007

SCOTUS Decides United States v. Resendiz-Ponce

Supreme_court_20_12From SCOTUS recently decided in United States v. Resendiz-Ponce that an indictment for attempted reentry of the United States does set forth every element of the alleged offense. 

Respondent, a Mexican citizen, was charged with violating 8 U. S. C. §1326(a) by attempting to reenter the United States after having been deported. The District Court denied his motion to have the indictment dismissed because it did not allege a specific overt act that he committed in seeking reentry. In reversing, the Ninth Circuit reasoned that the indictment's omission of an overt act was a fatal flaw not subject to harmless-error review.  The Supreme Court reversed. 

Full Decision. . . [Mark Godsey]

January 9, 2007 | Permalink | Comments (0) | TrackBack (0)

SCOTUS Decides Burton v Stewart

Supreme_court_20_11 From Recently decided Burton v Stewart in which the Court did not decide whether Blakely v. Washington, 542 US 296 (2004), applies retroactively on collateral review. Instead, the Court decided that the federal district court lacked jurisdiction over this case because Burton did not seek or obtain authorization from the court of appeals to file this "second or successive petition" for habeas corpus.

The Supreme Court granted certiorari in this case to determine whether its decision in Blakely v. Washington, 542 U. S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review. The Court did not answer these questions, however, because Burton, a state prisoner seeking postconviction relief from the federal courts, failed to comply with the gatekeeping requirements of 28 U. S. C. §2244(b). That failure deprived the District Court of jurisdiction to hear his claims. Accordingly, the Supreme Court vacated the judgment of the Court of Appeals and remanded with instructions to direct the District Court to dismiss Burton's habeas corpus application for lack of jurisdiction.

Burton was convicted in Washington state court of rape, robbery, and burglary, and sentenced to 562 months of imprisonment. Before his conviction became final the US Supreme Court decided Apprendi v. New Jersey, 530 US 466 (2000), which requires that facts used to sentence a criminal to more than the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. After his conviction became final the Court decided Blakely v. Washington, 542 US 296 (2004), which held that the Washington state sentencing scheme is subject to the Apprendi rules.

Burton brought a federal habeas corpus action challenging his sentence because it was enhanced based on facts that were found by the judge rather than by a jury. That would violate the rule in Blakely - if Blakely applies to his case. The 9th Circuit held that Blakely did not apply because it should not apply in a retroactive manner to convictions that were final before it was decided. 

The Supreme Court noted that Burton's petition for habeas corpus was a "second or successive" petition because he had filed another petition three years earlier. The relevant statute, 28 USC Section 2244(b)(3)(A), established by the Antiterrorism and Effective Death Penalty Act, says that before filing a "second or successive" habeas petition a prisoner "shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Burton did not do so, and therefore the district court did not have jurisdiction over his case.

Full Decision. . . [Mark Godsey]

January 9, 2007 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, January 8, 2007

CrimProf Ian Weinstein Comments on Excessive Police Shootings

IanFrom Fordham Law School CrimProf Ian Weinstein recently commented on the deadly 41-shot barrage fired by four police officers at the unarmed Amadou Diallo seven years ago  which sparked angry demands that the shooters face criminal charges – a scene that is now replaying in the recent police shooting of Sean Bell in a hail of 50 bullets.

Firepower and community outrage aside, the Diallo case serves as a reminder of the hard realities of prosecuting officers who are paid to carry guns and sometimes use them in dangerous situations. It also suggests the ultimate result of the latest case of Sean Bell could be a civil settlement for the victims' families and a quiet demise of the careers of the officers involved.

“Police officers are privileged to use deadly force,” said CrimProf Ian Weinstein. “The case will turn on whether the officers reasonably believed their lives were in danger, or that deadly force was justified.”

Bell, 23, was killed and two unarmed companions were wounded on Nov. 25 after a bachelor party at a strip club in Queens that police had targeted for an undercover operation.

The five shooters involved haven't spoken publicly about the incident now under investigation by the Queens district attorney. But statements by union officials and defense lawyers suggest a state-of-mind defense is in the works: The first officer to open fire, they say, was convinced there was a weapon in a car where none was found. Rest of Article. . . [Mark Godsey]

January 8, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

International CrimProf Mark Pieth Is Concerned With Haulted Corruption Inquiry

Pieth_02From An international anti-bribery watchdog, Organisation for Economic Co-operation and Development (OECD), has asked Britain to explain why it halted a corruption inquiry into a multi-billion-pound defence deal with Saudi Arabia, officials said yesterday.

Switzerland's Basel University CrimProf Mark Pieth, who chairs the OECD bribery group, said he had "serious concerns" about Britain's reasons for halting the probe and feared a lack of respect for the separation of powers. "It's the executive, the attorney general (justice minister) intervening in a criminal proceeding for possibly political reasons," said CrimProf Pieth.

In a telephone interview, Pieth said the OECD committee also had serious doubts about Britain invoking a "public interest" clause, adding that if by "public interest" Britain meant its "economic interests" it would be in breach of the convention.

Defence contracts could only be excluded from the convention's terms in extreme cases, he said. "I mean if James Bond needs to cheat to get a false passport, or something like that. But selling arms to a friendly government is not an excuse," he said.

Pieth said Britain would make its case in the week beginning January 15 at a Paris meeting of the OECD's 36-nation management working group on bribery. Rest of Article. . . [Mark Godsey]

January 8, 2007 in International | Permalink | Comments (0) | TrackBack (0)

CrimProf Laurie Levenson Comments on Convictions Without Physical Evidence

Levenson_1From Loyola Law School CrimProf Laurie Levenson recently commented on the Pasadena jury conviction of Michael Goodwin of murder in the deaths of racing legend Mickey Thompson and his wife, despite a lack of physical evidence tying the defendant to the murder scene.

The Thompsons were gunned down in the driveway of their home in the eastern Los Angeles County community of Bradbury on March 16, 1988, by two hooded gunmen who escaped on bicycles. The killers were never identified; Goodwin was charged with planning the murders.

With many mysteries still surrounding the case, observers had wondered if the jury would be able to reach unanimous verdicts so long after the crime. But jurors said the judge's instructions clarified how they viewed evidence during six days of deliberation. For example, jurors said that before joining the trial many of them did not know that circumstantial and direct evidence could be weighed equally in making their decision

CrimProf Levenson said judgments based on circumstantial evidence are often the norm in murder cases. "The evidence is still not proof beyond all doubt, it's just proof beyond a reasonable doubt. You don't have to dot all the I's or cross all the Ts, or have 'CSI' evidence to win a murder conviction." Rest of Article. . . [Mark Godsey]

January 8, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

New Article Spotlight: The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma

KrothenbergUniversity of Maryland School of Law Dean Karen H. Rothenberg and DC Public Defender Alice Wang recently published "The Scarlet Gene: Behaviorial Genetics, Criminal Law, and Racial and Ethnic Stigma."  Here is the Abstract:

Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study?

Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics.

That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer?

These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled [*pg 344] Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human.

This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries the most potential for stigma. Part IV explores how the blame-shifting mechanisms of genetic reductionism and genetic determinism affect the individual, family, community, and society when genetics research focuses on criminal or antisocial behavior. Part V analyzes how racial and ethnic stigma arise from behavioral genetics research and perpetuate inequality. Part VI concludes by considering the ethical dilemmas that geneticists face when choosing who and what to study. [Mark Godsey]

January 8, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 7, 2007

Bush Signs Bill to Open Mail

From President Bush signed a statement last month that allows the government to open mail in certain cases of urgent national importance. Critics say that this grants law enforcement the authority to open mail without a court-issued warrant. The Bush administration says the president's statement simply clarifies powers that the government already has. Listen. . . [Mark Godsey]

January 7, 2007 in Criminal Justice Policy | Permalink | Comments (1) | TrackBack (0)