Saturday, January 20, 2007
Students in the Capital Punishment Clinic at The University of Texas School of Law traveled to Washington, D.C., this week to observe the clinic's death penalty cases being argued at the U.S. Supreme Court on Wednesday.
University of Texas CrimProfs Jordan Steiker and Rob Owen, co-directors of UT's Capital Punishment Center, which houses the clinic, argued the cases. Steiker argued in Smith v. Texas. Owen argued in the consolidated cases of Brewer v. Quarterman and Abdul-Kabir v. Quarterman. Clinic students assisted with the Supreme Court briefs and in the argument preparation. Their attendance at the arguments in Washington, D.C., was made possible by the law school's generous support.
Also attending the oral arguments were two advanced clinic students and a couple of other law students who assisted on the cases, several former clinic students, and two other law professors who teach the clinic including Maurie Levin, who served as a co-counsel with Jim Marcus. A number of students also attended the "moot" arguments that were conducted last week.
"We are thrilled that the students have been able to be a part of this process, and that they were able to attend the arguments in the Supreme Court after working on the cases and understanding the issues from the inside out," Steiker said. "The Law School's support of the clinic, and our litigation of these cases, has been 100 percent," he added. Levin agreed that the students' presence made the Supreme Court experience that much better. "It was great to see the students there and so engaged in the experience after their work on the cases in conjunction with the clinic," Levin said.
Steiker argued the Smith case at 10 a.m. E.S.T. on Wednesday with co-counsels Levin and Carol Steiker, a Harvard law professor. The Court was very active during Steiker's argument with Justice Antonin Scalia asking questions almost immediately after Steiker began speaking. An hour later, Owen argued the consolidated cases of Brewer and Abdul-Kabir. Steiker served as Owen's co-counsel.
The case, Smith v. Texas, involves a Dallas County inmate, LaRoyce Smith, who was sentenced to death in 1991. At Smith's trial, his defense counsel presented extensive mitigating evidence regarding Smith's intellectual impairments, learning disabilities, placement in special education, and difficult family background. After he was convicted, Smith argued in state court habeas proceedings that the sentencing instructions did not allow jurors to consider such evidence, and the U.S. Supreme Court agreed in a 2004 decision (Smith v. Texas, 543 U.S. 37). On remand, the Texas Court of Criminal Appeals nonetheless concluded that Smith's death sentence could stand. It is that decision that the U.S. Supreme Court is currently reviewing.
The Brewer and Abdul Kabir concern rulings by the U.S. Court of Appeals for the Fifth Circuit. Similar to Smith, the cases address the question of whether the instructions given to inmate Brent Brewer's and inmate Jalil Abdul-Kabir's jury provided a sufficient vehicle for consideration of the mitigating evidence presented. The statutory scheme under which they were sentenced was ruled unconstitutional in 1989 and in 1991 the Texas Legislature amended the statute to fix the problem. The pre-1991 cases, however, continued to wind their way through the courts, and the Supreme Court issued three more decisions in Texas cases in an effort to enforce their original ruling. They were Penry II (2001); LaRoyce Smith (2004); and Tennard (2004). "The fact that the Supreme Court agreed to hear the Brewer and Abdul-Kabir cases is at least an indicator that the Supreme Court is still unhappy with the constricted view of the doctrine that has been applied by the Fifth Circuit," Owen said. Rest of Article. . . [Mark Godsey]
Friday, January 19, 2007
This week the CrimProf Blog spotlights CrimProf Pamela Bucy of the University of Alabama School of Law.
Professor Bucy received her B.A. degree in 1975 from Austin College and her J.D. in 1978 from Washington University School of Law, where she was elected to the Order of the Coif. Upon graduation from law school, Professor Bucy served as law clerk to the Honorable Theodore McMillian of the United States Court of Appeals for the Eighth Circuit.
From 1980 through May 1987, Professor Bucy was an assistant United States attorney for the Eastern District of Missouri. She served in the Criminal Division, specializing in prosecutions of white-collar criminal fraud. She established and served as coordinator of the Health Care Fraud Task Force for the Eastern District of Missouri. While with the U.S. Department of Justice, Professor Bucy served as an instructor of the appellate advocacy course in the U.S. Department of Justice Attorney GeneralÕs Advocacy Institute.
Her books include White Collar Crime, Cases and Materials (West 2nd ed. 1998), Health Care Fraud (Law Journal Seminars Press 1996), and Federal Criminal Law (with Abrams, Beale, and Welling 1998). Professor Bucy teaches Criminal Law, Criminal Procedure, and White-Collar Crime and publishes in the areas of white-collar crime and health care fraud. [Mark Godsey]
William Teesdale, an attorney with the Federal Public Defender's Office in Portland, Oregon has been seeking the release of a Guantanamo Bay detainee and has turned to YouTube to get the message out about his client. Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:
Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals. Watch the video here. . . [Michele Berry]
An electronic security system that purportedly identifies people by monitoring the unique pattern of electrical activity within the brain is being tested by European scientists. The system was developed by two companies - Starlab in Spain and Forenap in France - in cooperation with researchers at the Centre for Research and Technology Hellas, in Greece. It uses an established method for measuring activity in the brain, called electroencephalography (EEG).
EEG measurements identify the location and intensity of millisecond-long fluctuations in electrical activity in the brain via electrodes positioned around a person's scalp. (The person has to be wearing a wired helmet to take the measurement). Since an individual's brain activity is determined by the unique pattern of neural pathway in their brain, measuring brain activity could be used for identification, says Dimitrios Tzovaras, who is the coordinator at the Centre for Research and Technology Hellas. "So it could be a very good security control," he says.
But, separate groups studying the same technique question is reliability and practicality, for some blatant reasons. A research group at the University of Warsaw in Poland point out that the method can only identify subjects with 88% accuracy. A biometrics researcher at the University of Cambridge is bothered by the method's invasiveness. "Wearing a wired helmet with sensors on one's scalp might change the ambiance of the workplace somewhat," he says. Plus, stressful situations complicate the results. "You might not want to be taken for someone else at the airport just because you had a bad night before." Full story here from NewScientistTech.com. . . [Michele Berry]
Here's a funny editorial on jaywalking called Too Cocky for the Cross-walk: Jaywalking Academics are a Threat to National Security. It's based on a ridiculous incident out of Atlanta where a British historian was tackled to the ground, arrested, and detained 8 hours for jaywalking. (Video interview on YouTube here). Did you know that "recreational jaywalking is up 20 percent over the last decade and addiction has skyrocketed? These statistics are particularly unnerving in the light of a "totally legit" study that proved jaywalking is a "gateway misdemeanor." As jaywalkers mature, they turn to more destructive criminal behavior, like walking a dog without a leash, backing the family car out of the driveway or conducting domestic wiretaps without a warrant." Read the full "story" here. . . [Michele Berry]
The Onion reports: OAKLAND, CA—Often referred to by his superiors at the Oakland Police Department as a "loose cannon," Lt. Buck Roth and his unorthodox policing methods have been the subject of controversy for much of his turbulent career. But the renegade detective who acts as judge, jury, prosecuting attorney, bailiff, court reporter, and executioner maintains that his approach gets results. "Whatever it takes to clean up Oakland, I'll do it," Roth said Monday. "After all the laziness and corruption I've witnessed during my 13 years on the force, I've learned you can't trust just anyone to apprehend, arrest, fingerprint, photograph, delouse, interrogate, arraign, hear testimony from, and set bail for the low-life scumbags I deal with day after day." Rest of "story" here. [Mark Godsey]
Thursday, January 18, 2007
On March 30, 2007, the National Center for Justice and Rule of Law, of The University of Mississippi School of Law, presents its annual Fourth Amendment Symposium The conference is open to the public and will be webcast, which contains additional information about the conference and the Center's Fourth Amendment programs.
Speakers at the symposium include:
- University of Mississippi Research Prof and National Center for Justice and Rule of Law Director Thomas K. Clancy
- Honorable Jack Landau, Oregon Court of Appeals
- Honorable Joseph Grasso, Mass. Appeals Court
- Honorable Irma Raker, Court of Appeals of Maryland
- University of Tennessee School of Law Prof Thomas Davies
- University of New Jersey School of Law Robert Williams
- New England School of Law Lawrence Friedman
Nine Widener University School of Law students from the Delaware campus, accompanied by two professors and a civic-minded Philadelphia public defender took part in the Katrina-Gideon Interview Project, a national initiative where American law student volunteers are traveling to New Orleans to assist the beleaguered Public Defender's Office there try to catch up on the backlog of cases caused by Hurricane Katrina.
The students, working in pairs during the first week of January 2007, had contact with nine detainees. They interviewed them, made phone calls to relatives, verified information in the case files - in some cases doing investigatory work - tracked down witnesses and drafted motions and letters. Basically, they moved the inmates' case files toward being ready to go to court.
"With all the ups and downs, I feel that we not only made some important strides in getting a crippled indigent defense project back on track, but also that what we extracted was invaluable experience regarding the practicality -- and not the legal theories -- surrounding the criminal justice system," student David Iannucci wrote in a blog about his experience. "I hope this project continues throughout this year with many other law students volunteering their time and energy, with the goal that maybe the attention our presence and assistance has generated will jumpstart a massive endeavor of reform."
The students worked out of the Public Defender's Office in New Orleans and interacted with the attorneys who will eventually take the case files they prepared into court to represent the detainees. The days were long: roughly 12 hours beginning at 7:30 a.m. The group arrived there from Jan. 1 and returned Jan. 6. [Mark Godsey]
From latimes.com: Loyola Law School Juvenile CrimProf Cyn Yamashiro recently commented on the jury's role in the case against 10 Long Beach youths accused of beating three white women Halloween night which hinged almost entirely on eye witness identifications.
In a procedure known as a field show-up, police told the victims and a reputed witness that the youths — nine girls and a boy, ages 12 to 17 — were suspects and asked if they recognized them from the melee. In several subsequent police interviews, witnesses were never asked to pick the juveniles out of a lineup that included non-suspects: a means to test their memory that experts say is a standard and crucial procedure. Nor were they asked to identify them in open court.
Long Beach Police Cmdr. Jeffry Johnson said the field show-up is the most accurate form of identification in a case like this. "Especially when you talk about numerous suspects, you have to go with immediate recollection," he said.
But experts say field show-ups are inherently fallible and rarely used in isolation.
"I can't remember ever seeing a case go to trial in which the only identification is a field show-up," said Kathy Pezdek, a professor at Claremont Graduate University and expert witness in the area of eyewitness identification, in an interview. "It's extremely unusual."
"A jury is the great equalizer," said Juvenile Crim Prof Cyn Yamashiro. "It is the true challenge to the people's case. That is the component of due process that is absent in the juvenile system."
Rest of Article. . . [Mark Godsey]
Yesterday, not only did the Supreme Court hear the capital case presented by Texas Law's clinic, Smith v. Texas (05-11304), it heard two others as well, Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287). Seems that it was death penalty day at the Supreme Court. Here's an article from the WashingtonPost reviewing those three cases with some discussion about the Supreme Court's rulings on capital punishment over the past few years. The article quotes Ohio State CrimProf Douglas Berman. He notes that the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the Supreme Court fill its limited docket with other sentencing disparities "that affect thousands of people every day." Story here from washingtonpost.com. . . [Michele Berry]
From NPR.org: The Patriot Act allows the president to appoint new U.S. attorneys without confirmation hearings when a vacancy arises. Some former U.S. attorneys say the flexibility puts pressure on prosecutors to pursue Washington's agenda instead of using their own judgment. Listen to the story here. . . [Michele Berry]
Yesterday, the Justice Department announced that a secret independent panel of judges, known as the FISA Court (Foreign Intelligence Surveillance Court) has been given authority to monitor the government's contentious domestic spying program. FISA has already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group.
The FISA court was established in the late 1970s to review requests for warrants to conduct surveillance inside the United States. The Bush administration initially resisted giving the court final approval over the Terrorist Surveillance Program (the program allowing the phone calls or emails of Americans suspected of ties to terrorism to be monitored without any oversight from a judge), even when communications involved someone inside the country. A federal judge in Detroit last August declared the program unconstitutional, saying it violates the rights to free speech and privacy and the separation of powers. In October, a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati ruled that the administration could keep the program in place while it appeals the Detroit decision. Story from CBS/AP. . . [Michele Berry]
About 12 Texas Law students spent the day in Washinton DC yesterday to hear their advisors, law professors Jordan Steiker and Rob Owen argue on behalf of three death-row inmates. The question isn't about the inmates' innocence, but about the constitutionality of a Texas Court of Criminal Appeals' ruling.
To add to Texas Law's success, in late March, six students in the Supreme Court Clinic and law professor Michael Sturley and UT Law School alumnus David Frederick will bring their transportation case to the high court. The clinic represents Altadis U.S.A. Inc., a Florida-based cigar company concerning a shipment of goods it never received.
Wednesday, January 17, 2007
Responding to the remarks of Deputy Assistant Secretary of Defense Charles "Cully" Stimson, which were reported in the news media on January 13, 2007, the following statement was released Monday, January 15, 2007, by more than 130 deans of U.S. law schools. The statement reads as follows:
"We, the undersigned law deans, are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles "Cully" Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.
"As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.
"We urge the Administration promptly and unequivocally to repudiate Secretary Stimson’s remarks."
More than 40 years have passed since Justice William O. Douglas wrote the U.S. Supreme Court's opinion in Brady v. Maryland, which held that a defendant's due process rights preclude a prosecutor from suppressing material evidence favorable to the defendant. Since then, the so-called "Brady Rule" has shaped the boundaries of a defendant's right to a fair trial and defined the standards of the criminal justice system.
A symposium sponsored by the Case Western Reserve Law Review will explore the role of the Brady Rule in various elements of a criminal case, including plea negotiations, scientific evidence, capital sentencing, prosecutorial conduct and even how to deal with jailhouse snitches. "Prosecutorial Ethics and the Right to a Fair Trial: The Role of the Brady Rule in the Modern Criminal Justice System" will be held Friday, January 26, at 9 a.m. in the law school's Moot Courtroom.
Barry Scheck, professor of law at the Benjamin N. Cardozo School of Law in New York City and co-director of the Innocence Project, will be keynote speaker. At Cardozo for 27 years, Scheck has litigated many significant civil rights and criminal defense cases. For the past 14 years, Scheck and fellow law professor Peter J. Neufeld have run the Innocence Project, an independent, nonprofit organization affiliated with the Cardozo School of Law.
The Innocence Project has won wide recognition for using DNA evidence to exonerate the wrongly convicted. The Innocence Project also assists police, prosecutors and defense attorneys in trying to bring about reform in many areas of the criminal justice system, including eyewitness identification procedures, interrogation methods, crime laboratory administration and forensic science research. To date, the Innocence Project has helped to exonerate 189 wrongly convicted individuals in the U.S.
Among the speakers joining Scheck will be Professor Alafair S. Burke, Hofstra University School of Law; Professor John G. Douglass, University of Richmond (Va.) School of Law; Professor Bennett L. Gershman, Pace University School of Law; Professor Peter A. Joy, Washington University School of Law; and Case Western Reserve University School of Law professors Paul Giannelli - the Albert J. Weatherhead III and Richard W. Weatherhead Professor and one of the country's foremost authorities on the use of scientific evidence in criminal trials - and Kevin McMunigal, Judge Ben C. Green Professor of Law.
For more information on the symposium, including a detailed agenda and online registration, visit the The Law Review Symposium page, or call (216) 368-6619. The symposium will also be webcast live. Five hours of CLE credit are available for a fee to lawyers who attend in person. Space is limited; registration for this symposium will close on January 19, 2007. After January 19, please call to see if there is space. [Mark Godsey]
Community ordinances that encourage citizens to own guns; it's a phenom bringing new meaning to the phrase "gun control." Last month, Greenleaf, Idaho, adopted Ordinance 208, calling for its citizens to own guns and keep them ready in their homes in case of emergency. And it’s not that Greenleaf is responding to high crime rates--Greenleaf's last reported violent offense in the past two years...was a fist fight. Rather, it’s Greenleaf's statement about preparedness in the event of an emergency, and an effort to promote a culture of self-reliance.
Greenleaf is following in the footsteps of Kennesaw, Georgia, which in 1982, passed a mandatory gun ownership law in response to a handgun ban passed in Morton Grove, Illinois. Kennesaw’s crime dropped sharply, while Morton Grove’s did not. The rationale: criminals would rather break into a house where they aren’t at risk of being shot. As David Kopel has noted in his scholarship, burglars report that they try to avoid homes where armed residents are likely to be present. The phenomenon is present internationally, as well, with the United States having a lower proportion of "hot" burglaries--break-ins where the burglars know the home to be occupied--than countries with restrictive gun laws. Story from NYTimes.com. . . Maybe that works in Greenleaf, but Greenleaf is Greenleaf. I'd hate to see that law in my city. [Michele Berry]
The 18th-century amendment is being put to a 21st-century test centering around the Major League Baseball doping probe. Major League Baseball has found itself embroiled in a federal investigation into whether some of its biggest stars, like Barry Bonds, used performance-enhancing drugs. But civil-liberties advocates worry that a recent legal ruling in the case will reach far beyond the diamond and give the government broad search-and-seizure powers in the digital age. At the heart of the case is how much freedom the government has to pursue crimes discovered in electronic files while searching for evidence against other people and how much protection the 4th Amendment affords information in a computer database about people other than those targeted by investigators.
In late December '06, a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco upheld the government's power to seize computer files from two laboratories that performed mandatory drug tests on major leaguers, including files of professional hockey players and other nonsports patients tested by the labs. George Washington CrimProf Orin Kerr commented, "The Supreme Court has never applied the Fourth Amendment to computers. The federal courts of appeals are beginning to decide a bunch of cases: in 2006, there were 20 or 30 in the broad area of how the Fourth Amendment applies to computers. But each case is very fact-specific and narrow, so the law remains pretty murky." Story from the Wall Street Journal in post-gazette.com. . . [Michele Berry]
Does Texas need to be any tougher on crime? Well, some Texas lawmakers are considering it by proposing new laws allowing capital punishment for repeat sex offenders. Other proposals include mandatory long sentences for first-time offenders or eliminating probation. But the laws face fierce opposition from all sides, including prosecutors and victims advocates. They fear some of the proposals would make it harder to get convictions and, perhaps, put children in even more danger by giving molesters incentive to kill the only potential witness to their crimes..."If the punishment for raping a child and raping and killing are exactly the same the rapist may kill so that witness is no longer there,'' says one crime victim advocate.
And there's the BIG question of whether the death penalty in sex offenses is even constitutional. In 1977, the U.S. Supreme Court in Coker v. Georgia, 433 U.S. 584, reversed a death sentence for a Georgia man convicted of raping a woman, calling it an "excessive penalty for the rapist, who as such, does not take human life.'' Even so, according to the Richard Dieter of the Death Penalty Information Center, a handful of states--Florida, Montana, Louisiana, Oklahoma and South Carolina--have already passed new death penalty laws for sex offenses against children. No one has been executed under the laws, but one Louisiana inmate is on death row for the 2003 rape of an 8-year-old girl. That case is still being reviewed by state and federal appeals courts. Because Coker involved an adult victim, proponents of the death penalty expansion hope that SCOTUS will interpret Coker as a victim-specific ban on capital punishment for sex offenses, prohibiting death sentences adult victims but leaving room for sex offenders of child victims. Story here from Dallas/Fort Worth's KLRD.com. . . [Michele Berry]
An increasing number of states, including Kansas and Illinois, are requiring people who committed sex crimes as juveniles to be added to public sex offender lists. Under Illinois' law, effective in 2006 but yet to be enforced due to legal challenges, some juveniles could be placed on the public lists for the rest of their lives and others for many years, depending on their crime. So consider the circumstances of a real case in Illinois, involving a high school senior making plans to go to college. You'd never guess about his past because he seems to be a good kid with a promising future. But a few years ago, he pleaded guilty to home invasion and sexual abuse, because, as a 13 year-old boy, he made the mistake of grabbing the 13-year-old neighbor-girl's breasts. He was sentenced to register as a sex offender for 10 years, but the record was accessible only to law enforcement, schools, and daycares. Furthermore, as a juvenile, his record was shielded from the public, but under new laws, at age 17, his name, photograph, address, and crime will be added to public sex offender lists accessible on the internet, along side rapists and child pornographers.
For victim advocates, publicizing juvenile sex offender records is necessary to protect the community. But juvenile-justice leaders say laws like Illinois' new law, lump those guilty of "youthful indiscretions" with serious sexual offenders. Some say only the most serious offenders should be on public registries. Others say public exposure for any youth crime goes against the foundation of juvenile justice--that youths can be rehabilitated. The controversy is likely to intensify. Under a federal law passed in July, states will have to place certain teen sex offenders on public lists by 2009. Story from ChicagoTribune here. . . Related post here. . . [Michele Berry]
Advances in arson science are spearheading changes in the way investigators interpret evidence from fire scenes. Along the way, those who claim innocence to arson convictions are finding new hope. The Philadelphia Inquirer featured a detailed, story on several cases in Pennsylvania, a couple of them capital, where the last decade's advances in fire scene analysis have cast doubt on convictions for arson and arson-murder. One featured case is Han Tak Lee, imprisoned for over 15 years for setting the fire which killed his teenage daughter. The application for allowance of appeal (state court equivalent of certiorari) on post-conviction is pending before the Pennsylvania state supreme court. Story here. . . [Michele Berry, thanks to Peter Goldberger]