CrimProf Blog

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

Saturday, August 25, 2007

CrimProf Richard Klein Discusses Intoxication and Murder Acquittals

R_kleinFrom Touro Law Center CrimProf Richard Klein recently discussed intoxication and acquittal of murder charges in relation to a New York state appellate court's decision to reverse the murder conviction of a Coram man whose stabbing of a 20-year-old woman was caught on a tape of her 911 call, ruling that the jury should have been allowed to consider the man's drunkenness when deciding whether he intended to kill her.

CrimProf Klein said although a defendant cannot be acquitted of murder if found to be drunk, the law does allow a juror to consider intoxication in finding reasonable doubt and could reduce the crime to manslaughter, which carries a maximum sentence of 25 years.

"It's very rare, but it does occur," said Klein. "Most jurors will say that the defendant got themselves intentionally intoxicated, and he's responsible for whatever resulted."

Klein said the reversal should not be a major hurdle in convicting Smith again, as long as a judge properly instructs jurors. Rest of Article. . . [Mark Godsey]

August 25, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (2)

Friday, August 24, 2007

Crimprof Blog Spotlights Marie Failinger

FailingermarieThis week the CrimProf Blog highlights Hamline University School of Law Marie Failinger.

CrimProf Failinger was admitted in Indiana and is currently a member of the Minnesota bar. Formerly a staff attorney with Legal Services Organization of Indiana, she has continued her work on behalf of the disadvantaged as a founding member of the National Equal Justice Library, AALS Poverty Law Section, Law Teachers for Legal Services, American Indian Policy Institute, and MiCAEL (arts and law organization.)

She is the editor of the internationally recognized Journal of Law and Religion, as an editorial board member and contributor to the online Journal of Lutheran Ethics, and a founding Board member of Church Innovations Institute and Lutheran Innovations.

She has been professionally active in the American Association of Law Schools and Minnesota Women Lawyers, and has served on nonprofit boards or committees on legal services to the poor, adoption, fair housing, medical ethics, children and the law, and human rights issues. She has also taught in the clinical program at Valparaiso University School of Law. [Mark Godsey]

August 24, 2007 in Weekly CrimProf Spotlight | Permalink | Comments (0) | TrackBack (0)

Thursday, August 23, 2007

How to Enforce Cell Phone Laws?

From These days, it seems like almost everybody old enough to dial has a cell phone, and studies show that three out of four of us are using them in our cars.

Five states and the District of Columbia have banned the use of hand-held phones while driving. But is such a law even enforceable anymore? The answer may be found in New York, which was the first state to clamp down on driving and dialing six years ago.

Even with flashing lights and a siren, traffic enforcement officer Joe Claybaugh finds it hard to get the attention of drivers these days. Claybaugh is an officer in Camillus, N.Y., a suburb of Syracuse. On this particular day, he's looking for cell-phone violators, and he says it won't take long to find one.

Rest of Article. . . [Mark Godsey]

August 23, 2007 in Law Enforcement | Permalink | Comments (0) | TrackBack (0)

Groups are Attempting to Ban Salvia Divinorum

From A drug discovered by Mexican shamans has hooked both scientists and the YouTube set.

These groups, among others, are cautiously tracking moves to ban Salvia divinorum, an herb-based hallucinogen used spiritually by Mazatec Indians from the Oaxaca area, and increasingly popular among teens and college-age students, according to the National Institute on Drug Abuse.

Scientists hope the drug, sometimes referred to as "diviners sage" and "magic mint," might lead to new treatments for some of the world's worst diseases.

Available at smoke shops and from Internet distributors, including one based in the Heights, Salvia has been spotted in Texas school districts, including in the Waco area where a state lawmaker has vowed to outlaw it, and at area college campuses, according to Drug Enforcement Administration officials in the Houston region. It is still legal in most places.

So far the drug has stayed below the radar of local schools, but as classes start next week, administrators say they are prepared to treat Salvia as they would any other drug banned from campus. And if social networking sites are any indication, at least some Houston-area teenagers are using it.

Rest of Article. . . [Mark Godsey]

August 23, 2007 in Drugs | Permalink | Comments (0) | TrackBack (0)

Police May be Too Quick to Use Their Taser

From Increasingly, police facing stubborn lawbreakers, belligerent drunks or violent suspects are reaching for stun guns to shock them into submission. In one recent incident, a hospital security guard in Houston used a Taser on a defiant father trying to take his newborn home, sending father and daughter to the floor.

Police say Tasers are valuable tools for avoiding hand-to-hand struggles that can injure officers and citizens. Small, portable and often effective even when merely brandished, Tasers -- which fire tiny, tethered cartridges that transmit electrical currents -- have become common in law enforcement in recent years, with some 11,500 police agencies using them.

But critics say Tasers are being used as a weapon of first resort, sometimes on frail or mentally ill people. Rest of Article. . . [Mark Godsey]

August 23, 2007 in Law Enforcement | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2007

CrimProf Stephanos Bibas will Speak at Williamette College of Law

Sbibas University of Pennsylvania Crimprof Stephanos Bibas will present a public lecture at Willamette University College of Law on the state of the criminal justice system in the United States.

“The Gulf Between Insiders and Outsiders in Criminal Justice” will be held on Thursday, Sept. 27, 2007, at 5:30 p.m. in Room 201 of the Collins Legal Center, which houses the College of Law.

Stephanos Bibas brings an ex-prosecutor's eye to his critique of the criminal justice system. He earned his B.A. from Columbia, a second B.A. and M.A. from Oxford, and his J.D. from Yale Law School.

He then clerked for Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit and Justice Anthony Kennedy of the U.S. Supreme Court, litigated a wide variety of cases at Covington & Burling in Washington, D.C., and served as a federal prosecutor in the U.S. Attorney's Office for the Southern District of New York, where he successfully investigated, prosecuted and convicted the world's leading expert in Tiffany stained glass for hiring a grave robber to steal priceless Tiffany windows from cemeteries.

Bibas was a research fellow at Yale Law School and taught law at the University of Iowa and the University of Chicago Law School before moving to the University of Pennsylvania Law School last year.

[Mark Godsey]

August 22, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Crimprof Nancy King Leads Habeas Study

KingA new study led by Vanderbilt University CrimProf Nancy King finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts.

The two-year study was partially funded by the National Institute of Justice and is the first to examine the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court.

The research examined nearly 2,400 non-capital cases, randomly selected from among the more than 36,000 habeas cases filed in federal district courts nationwide by state prisoners during 2003 and 2004, and more than 360 death penalty cases filed in 13 federal districts between 2000 and 2002.

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or "AEDPA," federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.

The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study's end, one of every eight death sentences was invalidated.

Rest of Story. . . [Mark Godsey]

August 22, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

CrimProf Chris Slobogin Discusses the Difficulties for the Jury

SlobFrom University of Florida CrimProf Chris Slobogin recently commented on the unfairness of judging a jury decision with regard to a case in which there were close to 30 pages of jury instructions and about 15 hours of deliberations in deciding whether Richard Henderson Jr. was insane when he killed four family members in 2005.

CrimProf Slobogin said it is unfair to criticize a jury unless people are familiar with all the evidence in a case.

"My guess is the public reads about the offense and thinks this is the perfect candidate for the death penalty, but they don't have access to his background, his mental state and other mitigating factors," Slobogin said. "This jury did and balanced the mitigators against the aggravators and decided this isn't the worst of the worst." Rest of Article. . . [Mark Godsey]

August 22, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2007

GPS Tracking for Violent Robbers

From One month after two paroled burglars were arrested for a brutal home invasion that killed a mother and her two daughters in Cheshire, Conn., state officials have announced new plans to crack down on violent burglars.

Offenders will have to wear GPS tracking devices, so officials know where they are at all hours. Most states use the devices to keep tabs on sex offenders.

Connecticut's plan raises questions about whether it's wise to do the same for this whole new category of criminals. Listen. . . [Mark Godsey]

August 21, 2007 in Technology | Permalink | Comments (0) | TrackBack (0)

Local Police Often Do Not Seek Firearm Trace Information

From Only about a third of the nation's estimated 17,000 local law enforcement agencies regularly request federal assistance for "trace information" identifying the source of firearms used in crimes, federal authorities said Monday.

"There may be law enforcement agencies out there not asking for it because they don't think they have access to it," says Michael Sullivan, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

For investigators, the trace information is often key to tracking suspects in gun-related crimes. Using serial numbers and other descriptive information from recovered weapons, federal authorities can compel firearms manufacturers and dealers to provide information about who first bought the weapon and when.

Federal authorities say they tend to receive repeated requests for help every year mostly from the same 6,000 law enforcement agencies — and rarely hear from the other 11,000. They worry that the ongoing public debate — fueled by advocacy groups and a national coalition of mayors — over access to the critical background information may be discouraging police departments from requesting it. Sullivan says conflicting interpretations of federal law may be contributing to false perceptions that the police are no longer able to receive the information.

The ATF is permitted to share trace information with agencies that request it as part of individual ongoing criminal investigations. The bureau, however, is restricted from sharing results of individual requests with departments other than the requesting agencies. Federal law also shields the data from use in civil suits. Rest of Article. . . [Mark Godsey]

August 21, 2007 in Law Enforcement | Permalink | Comments (0) | TrackBack (0)

CrimProf Rob Owne Quoted during "Art nd the Death Penalty"

Owen_robert University of Texas at Austin Law School CrimProf Rob Owen, who is also co-director of UT Law School’s Capital Punishment Clinic, is quoted several times in an interview with K-UT Radio for a news story on the intersection of art and capital punishment.  “Art and the Death Penalty” aired on Monday, August 20, 2007.

Professor Owen has defended people facing the death penalty since 1989 at every level of the state and federal court system, including arguing successfully at the United States Supreme Court (Tennard v. Dretke (2004), Abdul-Kabir v. Quarterman (2007), and Brewer v. Quarterman (2007)). He is a recipient of the Thurgood Marshall Award, recognizing his work in fighting the death penalty, from the Association of the Bar of the City of New York. Listen. . . [Mark Godsey]

August 21, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2007

Military Judge Dismisses Serious Charges Against Abu Ghraib Officer

From A military judge on Monday dismissed two of the most serious charges against the only officer charged with abusing detainees at Iraq's Abu Ghraib prison after an investigator acknowledged he failed to read the defendant his rights.

Army Lt. Col. Steven L. Jordan is the last of 12 Abu Ghraib defendants to be court-martialed. He still faces four counts, including cruelty and maltreatment of detainees.

His trial was set to begin Monday afternoon. Rest of Article. . . [Mark Godsey]

August 20, 2007 in Homeland Security | Permalink | Comments (0) | TrackBack (0)

Getwaway Driver's Execution Draws Near

From Kenneth Foster's supporters say he was up for getting high and robbing a few people on that San Antonio night in 1996 but never anticipated the spree would lead to murder.

He was in a car nearly 90 feet away when one of his partners shot and killed Michael LaHood in what jurors determined was a botched robbery. Barring a last-minute commutation by the Texas Board of Pardons and Paroles and Gov. Rick Perry, he'll be executed for the crime Aug. 30.

Mr. Foster is one of an estimated 80 Texas death row inmates convicted under the state's "law of parties" – which authorizes capital punishment for accomplices who either intended to kill or "should have anticipated" a murder, regardless of whether they pulled the trigger.

Most states have such laws for many types of crimes, but Texas is the only state to apply it broadly to capital cases. Death penalty opponents decry its use, saying it broadens capital punishment far too much.

Prosecutors argue that all those responsible must be held accountable for such heinous acts.

"But for Mr. Foster driving that car, but for his planning, his decision to engage in this crime, Mr. LaHood would be alive," said Cliff Herberg, a Bexar County first assistant district attorney whose office prosecuted the case. Letting Mr. Foster off the hook "would be like saying the 9/11 hijackers on the plane weren't guilty of anything because they're not the ones who flew it."

Opponents of the death penalty hope the Foster case brings a focus to the issue. They're holding rallies, sending mass e-mails and operating blogs aimed at tearing down the Texas law of parties.

Rest of Article. . . [Mark Godsey]

August 20, 2007 in Capital Punishment | Permalink | Comments (0) | TrackBack (0)

Afghan Opium Production is on the Rise

From Despite the presence of 35,000 NATO troops in Afghanistan, the drug trade there is going gangbusters. According to the U.N. Office on Drugs and Crime (UNODC), Afghan opium production in 2006 rose a staggering 57 percent over the previous year. Next month, the United Nations is expected to release a report showing an additional 15 percent jump in opium production this year while highlighting the sobering fact that Afghanistan now accounts for 95 percent of the world's poppy crop. But the success of the illegal narcotics industry isn't confined to Afghanistan. Business is booming in South America, the Middle East, Africa and across the United States.

Thirty-six years and hundreds of billions of dollars after President Richard M. Nixon launched the war on drugs, consumers worldwide are taking more narcotics and criminals are making fatter profits than ever before. The syndicates that control narcotics production and distribution reap the profits from an annual turnover of $400 billion to $500 billion. And terrorist organizations such as the Taliban are using this money to expand their operations and buy ever more sophisticated weapons, threatening Western security.

In the past two years, the drug war has become the Taliban's most effective recruiter in Afghanistan. Afghanistan's Muslim extremists have reinvigorated themselves by supporting and taxing the countless peasants who are dependent one way or another on the opium trade, their only reliable source of income. The Taliban is becoming richer and stronger by the day, especially in the east and south of the country. The "War on Drugs" is defeating the "war on terror." Rest of Article. . . [Mark Godsey]

August 20, 2007 in Drugs | Permalink | Comments (0) | TrackBack (0)

Sunday, August 19, 2007

Orlando Police Trade Shoes for Guns

From More than 200 guns have been collected so far today in a sneakers-for-gun exchange.

Sneakers and $50 gift certificates will continue to be offered while supplies last at two locations until 8 p.m. today. In Orlando, the exchange will be outside the Florida Citrus Bowl at 1610 W. Church St. In the county, it will be outside the Pine Castle Woman's Club at Oak Ridge Road and South Orange Avenue.

The exchange follows another weekend of violence that threatens Central Florida's image as a family-friendly tourist destination. Rest of Article. . . [Mark Godsey]

August 19, 2007 in Law Enforcement | Permalink | Comments (0) | TrackBack (0)

John Grisham and Scott Turow Help Launch Mississippi Innocence Project

Two award-winning writers are teaming up to raise money for the newly formed Mississippi Innocence Project at the University of Mississippi School of Law.

The law school announced today (Friday) that John Grisham and Scott Turow will headline a fundraising dinner Oct. 22 in Jackson to support the project, which recently began operation.

Grisham, who graduated from the UM law school in 1981, is the author of numerous novels and other books, including his most recent, "The Innocent Man," profiling a man wrongfully convicted and freed years later with the help of several attorneys. Turow, a 1978 graduate of Harvard Law School, also has authored numerous books, including "Presumed Innocent" and "Ultimate Punishment."

Both authors have supported similar projects in law schools across the country. However, the upcoming dinner marks the first time the two have jointly raised money for such a cause. Announced this past spring, the Mississippi Innocence Project was established with initial funding by Grisham and Columbus attorney Wilbur Colom, a graduate of Antioch Law School.

Tucker Carrington, a former visiting professor at Georgetown Law School, has been hired as the project's full-time director. Carrington said that the program is "committed to providing the highest quality legal representation to its clients: state prisoners serving significant periods of incarceration who have cognizable claims of wrongful conviction."

Many but not all of the cases can be evaluated by examining DNA evidence, said Ron Rychlak, UM law professor and associate dean for academic affairs.

"The idea is that some prisoners who have been in prison a long time were convicted before DNA evidence was understood or utilized," he said. "These cases are resolved and put away as closed cases. There are no government attorneys available to these convicts, and most cannot afford to hire private attorneys, so this is really their last chance of proving innocence." [Mark Godsey]

August 19, 2007 in News | Permalink | Comments (0) | TrackBack (0)

CrimProf JOhn Pray and the Wisc. Innocence Project Win Again

PrayjAlmost five years after contacting the Wisconsin Innocence Project (WIP) and nearly a decade behind bars, Jeffrey J. Dake is a free man thanks to the investigative work of the University of Wisconsin Law School initiative.

This June, the program successfully argued a new trial was needed for Dake, 37, who had been in prison since 1998 for raping a 14-year-old girl.

Langlade County Circuit Court Judge Fred W. Kawalski granted a new trial, but rather than revive the past for the victim, district attorney Ralph M. Uttke elected not to prosecute the case. Charges were dropped against Dake, who had six years left of his 16-year sentence.

"The feeling was after a significant amount of time in the jail system, we felt the interests of the public had been protected and the case didn't warrant an appeal," said Uttke, who added that Dake unsuccessfully appealed in 1997. "I had contacted the victim who said she just wanted to get on with her life at this point. "

According to Clincial CrimProf and WIP Co-Director John Pray, Dake's was the fourth successful case the program has argued in the last year and in three of the four, new trials were granted and the state subsequently dismissed charges. The WIP's most prominent exoneration was Steven Avery, who had served 18 years in prison.

In Dake's case, the WIP based part of its argument on the notion that the jury in the original trial was unaware of pertinent information regarding the girl's stepfather who testified. His testimony claimed that Dake allegedly offered the girl if she would not tell anyone about the assault, but Dake said the first he heard of the was from the stepfather, shortly after the allegations were made. The stepfather denied ever telling Dake and the state argued that the only way Dake could have known about the money was if he was the one who committed the crime.

"What the jury did not know was that the stepfather had been formally charged with sexually assaulting the same girl six or seven times during the same time frame," said Pray.

That allowed the WIP to argue that the girl could have mistaken who the offender was as the assaults took place in the middle of the night and she testified that on one occasion, she could not see her attacker, but said it was Dake based on the "feel of his shoes. " [Mark Godsey]

August 19, 2007 in CrimProfs | Permalink | Comments (0) | TrackBack (0)