January 27, 2007
CrimProf Gross Discusses Israeli President's Speech
From Malaysiasun.com: Haifa University CrimProf Emanuel Gross recently commented on Israeli President Moshe Katsav delivery of a frantic speech in which he venomously attacked all of Israel's institutions, including the police, attorney general, government and media.
CrimProf Gross told Ynet news he was severely disappointed in Katsav's speech and called it "an unbecoming and even cynical exploitation of his official position to attack law enforcers and the complainants against him without giving them the chance to respond."
Gross said he found it hard to believe he was hearing such a spray of venom from the president's mouth.
"I would have expected him to resign before making such statements. This is a test for the Knesset, a test for democracy. I expect the Knesset to dismiss the president, and that seems obvious."
Rest of Article. . . [Mark Godsey]
January 26, 2007
CrimProf Spotlight: Francis Barry McCarthy
This week, the CrimProf Blog spotlights University of Pittsburgh School of Law CrimProf Francis Barry McCarthy.
Barry McCarthy is an expert in criminal law and procedure and in juvenile law, both in the United States and abroad. He is the former chair of the Pennsylvania Supreme Court's Criminal Procedural Rules Committee (1993-1999) and currently is the chair of the Pennsylvania Juvenile Court Rules Committee. He served as a consultant to the Law Reform Commission of Ireland for almost 20 years, and has also been a consultant to the U.S. Department of State.
He was an adviser to Ireland's director of public prosecutions, and an active member of the International Bar Association. Author of Pennsylvania Juvenile Delinquency Practice and Procedure (West/Thomson 1984-2005) and coauthor of Juvenile Law and Its Processes (Lexis 1979 – 2003),
Professor McCarthy is former chair of the Family and Juvenile Law Section of the Association of American Law Schools. His scholarly work has appeared in New York University Law Review, Temple Law Review, and University of Michigan Journal of Law Reform, among others. He previously taught law at Capital University and University College Dublin.
CromProf Quote: "While it is a cliche that over time everything changes, this saying has special meaning for a law school education. Students frequently come to law school uncertain of why, or whether they want to be lawyers. Law school is a time to consider these matters and to discover what is of interest in the law as well as in what direction one's talent lies. As a result, quite often students undergo a change of direction themselves from what they presupposed. Beyond this, however, law school is a time for preparing students for a changing world. It is a time of preparation not for the immediate practice of law, but rather for a lifetime career in the law."
North Carolina Stays Execution after NC Medical Board Bans Doctor/Nurse Participation
North Carolina was scheduled to execute Marcus Robinson today, but the Wake Superior Court stayed Robinson's execution along with the February 9 execution of James Thomas, another NC death row inmate, because the state had made changes to its execution process, specifically the role doctors and nurses would play in the execution process, without getting the necessary approval. The stays come in the wake of the North Carolina Medical Board's refusal to allow doctors and nurses to participate in executions. Under the new policy, doctors and nurses employed by the prison system won't be desciplined for "merely being 'present' during an execution," but are forbidden from administering the lethal drugs or physically assisting with the execution.
The North Carolina Medical Board ruling comes as the state continues its debate about the humaneness of its lethal injection protocols. Defense attorneys have argued that only anesthesiologists or trained medical professionals can tell if an inmate is unconscious before being put to death. They argue that the state's protocol could result in an inmate waking up during the procedure but being paralyzed and unable to express pain before dying. Currently, the North Carolina Department of Corrections uses a brain wave monitor and heart monitor to evaluate the status of a person being executed. The machines are watched from a small viewing room established for doctors or nurses who are employed by the prison system. Full Story from NewsObserver.com. . . [Michele Berry]
"State of the States" Report Features Analysis of Capital Punishment Trends
Stateline.org's recent "State of the States" report features an extensive article on capital punishment trends in the United States. The piece includes a thorough review of lethal injection challenges in the states, as well as a brief update on the issue of innocence and an overview of other state legislative developments, such as efforts to authorize the death penalty for some crimes other than murder.
The article notes that questions about lethal injection put the death penalty on hold in nine states in 2006, and problems with the procedure left lawmakers grappling with the question of how much pain the condemned feel as they die and what role, if any, medical professionals should play in executions. The report states that the 90-minute botched execution of Ohio death row inmate Joseph Clark was "a stark example of why America is taking a harder look at lethal injection." Clark raised his head and declared that the process was not working before prison officials closed the viewing room curtain as they struggled to find a new vein through which to carry out the execution.
The report also provides charts illustrating the number of executions carried out in the U.S. during the past year and since the death penalty was reinstated, as well as a graphic showing state-by-state information on death row exonerations. Download the report here [Michele Berry]
Italy: Holocaust Deniers to Face Criminal Penalties
Just in time for Holocaust Memorial Day in Italy, which is honored tomorrow, Italy's government has agreed to make denying the Holocaust a crime and to stiffen prison sentences for those found guilty of inciting racial hatred. Initially conceived to target Holocaust deniers, the bill was broadened to include all forms of intolerance after some members of the ruling centre-left coalition had expressed reservations about the appropriateness of using the criminal code to honour the millions of Jews killed in the Shoah. Nonetheless, the bill draft received unanimous approval by the Italian cabinet. With approval from the parliament, the bill will become an official law, and those found guilty of spreading ideas about a race being superior to another would now risk up to three years in prison while acts designed to incite racial, ethnic, religious or sexual violence would be punishable with a maximum four year prison sentence. Germany, which currently holds the European Union's rotating presidency, is pushing to make denying the Holocaust a crime in all member states. Full Story from Expatica.com. . . [Michele Berry]
January 25, 2007
Former Sheriff Arrested in killing of 2 boys 43 Years Ago
From NPR.com: Charles Moore and Henry Dee disappeared one hot afternoon in rural Mississippi after stopping for ice cream at a roadside stand. The next time their relatives saw the 19-year-olds, they were in pieces — a clutch of divers came across the boys' torsos, weighted down with automobile parts, during the well-publicized search for the bodies of three civil rights workers in Philadelphia, Miss.
James Ford Seale, a 71-year-old former sheriff's deputy, was arraigned in Jackson, Miss., Thursday for kidnapping Moore and Dee 43 years ago — an abduction during which the teenagers were killed. Charles Moore's brother, Thomas, talks about his role in solving the case.
Listen. . . [Mark Godsey]
Lower Cts in Shambles When it Comes to Sentencing Guidelines
From slate.com: Sentencing is supposed to be the straightforward moment in a criminal trial—easy arithmetic compared to the subjective assessments of jurors and attorneys. But ever since the Supreme Court got into the sentencing biz back in 2000, sentencing has been a mess. The court struck down federal mandatory sentencing guidelines in 2005, and some state guidelines have fallen as well. And in a 6-3 decision Monday, the justices killed the California sentencing guidelines.
The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.
But the court can't make pro-defendant reform its explicit aim—that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction—this is what it looks like when the Supreme Court lays waste.
The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right. The court suggested that the Sixth Amendment's guarantee of trial by jury means that a defendant can't be sentenced above the maximum specified in a statute unless a jury finds the facts that justify the increase. What does that mean?
According to this week's ruling, Cunningham v. California, for example, a legislature may not set the penalty for child sexual abuse at six to 12 years and then authorize a judge to send a sex abuser away for 16 years if the judge finds, for example, that the victim was particularly vulnerable or the abuser violent or dangerous. For one thing, those facts haven't been found by a jury. For another, they allow for a higher sentence based on a lower standard of proof than the one required for conviction: preponderance of the evidence, rather than guilt beyond a reasonable doubt.
Rest of Article. . . [Mark Godsey]
CrimProf Haken Hakeri Comments on Harant Dink's Murder Investigation
From turkishdailynews.com: Selcuk University CrimProf Haken Hakeri recently commented on Hrant Dink's murder investigation and suspected murderer Ogün Samast's signed confession saying that he regretted the murder, and that his intention had been to give himself up to the police in Trabzon after meeting with his family. This amounts to a change in his confession because during his preliminary investigation he had said he did not regret killing Dink.
Hrant Dink was a famous Turkish-Armenian journalist who is best known for his public statements and writings referring to the 1915-17 massacres of Armenians in the Ottoman Empire as "genocide" — one of the most "controversial" issues in Turkey today. For his statements on Armenian identity and the Armenian Genocide, Dink had been prosecuted three times under Article 301 of the Turkish Penal Code for “insulting Turkishness.”
Hakan Hakeri, Associate Professor of Criminal Law at Selçuk University in Konya, said Samast would receive a sentence of 18 to 24 years in prison, since he is not legally an adult. But Hakeri said that if Samast is under 18, this would increase the sentence of the so-called “older brothers” behind the murder, said Hakeri. Rest of Article. . . [Mark Godsey]
January 24, 2007
Technology Links Cold Murder Case to Former Black Panther Associates
From npr.com: Eight men linked to the Black Panthers were recently arrested in connection with the 1971 murder of a San Francisco police sergeant. The officer was killed during a shotgun attack on a police station in San Francisco's Ingleside neighborhood.
Seven of the suspects were members of the Black Liberation Army, which was an offshoot of the Panthers. Detectives say they finally got a break in the 35-year-old cold case based on new advances in forensic technology. Listen. . . [Mark Godsey]
CrimProf Herman Goldstein Helps Launch M3 Crime Fighting Plan
From rrstar.com: University of Wisconsin School of Law CrimProf Herman Goldstein recently discussed and aided the city of Rockford, Illinois in implementing its new M3 crime fighting strategy
Called M3, the unit of nearly three dozen personnel is designed to respond to the city’s so-called “hot spots” of criminal activity, whether it’s a spike in shootings, a rash of burglaries or persistent problems with hoodlums selling dimebags of crack on certain street corners.
The three “M’s” stand for man, manage and measure. The idea is to use the type of data the police receive and dispatch teams accordingly
CrimProf Goldstein, who is also an author and nationally known expert on developing policing strategy, was invited to stay in Rockford for two days to help the city develop the first steps of its program.
“This is long overdue, not just in Rockford, but in much of the country,” Goldstein said. One of his books, 1990’s “Problem-Orientated Policing,” is required reading for all of Rockford’s command staff, Epperson said. Rest of Article. . . [Mark Godsey]
US Dept of Justice Publishes Internet Manual for the Technologically Challenged
From c-netnews.com: The US Department of Justice's Office of Justice Programs recently published what amounts to a manual for tech-challenged gumshoes, covering everything from how to track suspects through an Internet Relay Chat network to targeting copyright thieves on peer-to-peer networks.
The new 137-page manual appears to represent the Justice Department's attempt to offer at least some basic technical and legal tips to law enforcement agencies that may not have computer experts on the payroll.
The manual warns of the perils of assuming that the owner of a computer--especially Windows PCs, which can be vulnerable to security breaches--is responsible for what's actually on it.
"Because investigations involving the Internet and computer networks mean that the suspect's computer communicated with other computers, investigators should be aware that the suspect may assert that the incriminating evidence was placed on the media by a Trojan program," it says. "A proper seizure and forensic examination of a suspect's hard drive may determine whether evidence exists of the presence and use of Trojan programs." Rest of Article. . . [Mark Godsey]
January 23, 2007
Study Finds States With Highest Number of Guns=Highest Number of Deaths
From NYTimes.com: States with the greatest number of guns in the home also have the highest rates of homicide, a new study finds.
The study, in the February issue of Social Science and Medicine, looked at gun ownership in all 50 states and then compared the results with the number of people killed over a three-year period.
The research, the authors said, “suggests that household firearms are a direct and an indirect source of firearms used to kill Americans both in their homes and on the streets.”
The researchers, led by Matthew Miller of the Harvard School of Public Health, drew on data gathered by the federal Centers for Disease Control and Prevention. In 2001, the agency surveyed more than 200,000 people and asked them, among other questions, whether they had a gun in or near the home.
In states in the highest quarter of gun ownership, the study found, the overall homicide rate was 60 percent higher than in states in the lowest quarter. The rate of homicides involving guns was more than twice as high.
Among the possible explanations for the higher homicide rates, the study said, is that states with high gun ownership tend to make it easier to buy guns. There are also more guns that can be stolen. And the presence of a gun may allow arguments and fights to turn fatal.
DOJ Releases Inmate Death Report
From ojp.usdoj.gov: The nation's state prison officials reported that 12,129 inmates died while in custody from 2001 through 2004, the Justice Department's Bureau of Justice Statistics (BJS) announced today. The deaths over this four-year period constituted an annual mortality rate of 250 deaths per 100,000 inmates, which was 19 percent lower than the adult mortality rate in the U.S. general population.
Overall, 89 percent of all state prisoner deaths were attributed to medical conditions and 8 percent were due to suicide or homicide. The remainder of deaths were due to alcohol/drug intoxication or accidental injury (1 percent each). A definitive cause of death could not be determined for an additional 1 percent. Two-thirds of inmate deaths from medical conditions involved a problem that was present at the time of admission to prison.
Half of all inmate deaths during this period resulted from heart disease (27 percent) or cancer (23 percent). Liver diseases, including cirrhosis, accounted for 10 percent of deaths, followed by AIDS-related causes (7 percent).
Among cancer deaths, lung cancer was the most common, accounting for 910 deaths from 2001 through 2004, followed by liver (276), colon (171), pancreatic (124) and non-Hodgkin's lymphoma (114). Deaths due to gender-specific cancer sites varied. Breast, ovarian, cervical and uterine cancer accounted for 24 percent of female cancer deaths. By comparison, prostate and testicular cancer caused 4 percent of male cancer deaths.
State prisoner mortality rates increased steadily with age. The mortality rate of inmates age 18-24 was lowest, at 34 deaths per 100,000 inmates. Among inmates age 55 or older, the rate was 1,973 deaths per 100,000 inmates. Inmates age 45 or older represented 14 percent of state prisoners, but 67 percent of the prisoner deaths from 2001 through 2004.
Rest of Article. . . [Mark Godsey]
Review Finds Huge Problems in Southern Death Penalty Cases
From realcities.com: McClatchy reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states. The review found that:
- In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.
- By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.
- Appeals courts for the most part have ducked those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned for bad lawyering.In 11 of the cases, the defendants already have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.
In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.
Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. So far, none of that office's 46 clients has been sentenced to death.
Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle. Rest of Article. . . [Mark Godsey]
Vermont Legislature Considers Bill Granting Access to Post-Conviction DNA Testing
At Senate and House judiciary hearings tomorrow, Dennis Maher, a wrongly convicted man who was exonerated through DNA testing, and Innocence Project Policy Director Stephen Saloom will testify in favor of legislation (VT HB 50, and VT SB 6) to improve the accuracy of the state's criminal justice system and grant post-conviction access to DNA testing. Vermont, which has yet to adopt many of the protections other states have, would become a model of criminal justice reform with the passage of the two bills. The House bill, introduced by Representatives Margaret Flory and Richard Marek, includes the following proposed reforms: Several of these provisions have been adopted by other states and municipalities. Vermont is one of only nine states that lack a post-conviction DNA access statute and one of 29 states that do not have legislation providing compensation for the wrongly convicted. The practice of recording custodial interrogations, an important safeguard against false confessions, has been voluntarily adopted by more than 350 jurisdictions. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases. Eyewitness identification reforms have been implemented in the state of New Jersey, as well as large cities like Minneapolis and Seattle. The Innocence Project and state and local advocates have helped pass these laws. [Michele Berry]
At Senate and House judiciary hearings tomorrow, Dennis Maher, a wrongly convicted man who was exonerated through DNA testing, and Innocence Project Policy Director Stephen Saloom will testify in favor of legislation (VT HB 50, and VT SB 6) to improve the accuracy of the state's criminal justice system and grant post-conviction access to DNA testing.
Vermont, which has yet to adopt many of the protections other states have, would become a model of criminal justice reform with the passage of the two bills. The House bill, introduced by Representatives Margaret Flory and Richard Marek, includes the following proposed reforms:
Several of these provisions have been adopted by other states and municipalities. Vermont is one of only nine states that lack a post-conviction DNA access statute and one of 29 states that do not have legislation providing compensation for the wrongly convicted. The practice of recording custodial interrogations, an important safeguard against false confessions, has been voluntarily adopted by more than 350 jurisdictions. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases. Eyewitness identification reforms have been implemented in the state of New Jersey, as well as large cities like Minneapolis and Seattle. The Innocence Project and state and local advocates have helped pass these laws. [Michele Berry]
Will the Supreme Court Reign in the Texas CCA?
Grits For Breakfast analyzes Smith v. Texas, the case argued to SCOTUS by UT Austin's Capital Punishment Clinic: Forty-seven of the 392 defendants on Texas death row were convicted using sentencing instructions the US Supreme Court later declared unconstitutional. But the Texas Court of Criminal Appeals responded by thumbing its nose (again) at the high court, most recently declaring the unconstitutional instructions "harmless error."...Dahlia Lithwick wonders at Slate whether the Supreme Court's "opinions have become suggestions in Texas." From her description of the oral arguments, it sounds like the 7-2 supermajority that's been signing off on most bench-slapping of Texas death penalty cases may have been watered down substantially by the addition of Chief Justice John Roberts and Justice Samuel Alito. Lithwick declares that "the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel." That prediction doesn't sound too promising for the lawyers at the UT-Austin capital punishment clinic who argued the case... I see three possible or likely outcomes: Maybe Roberts and Alito will be swayed by behind-the-scenes discussions (it's hard to understate how much hubris the CCA has shown here), a 5-4 majority could still hold up against the CCA, or else it may be that the Texas death penalty will turn out to be the first major arena where President Bush's new Supreme Court appointees start reversing the courts of the last few decades. Nothing to do now but wait and see. More from Grits For Breakfast. . . [Michele Berry]
More on Cunningham v. California
Like Mark posted, in a 6-3 ruling yesterday, SCOTUS rejected California's 30 year-old sentencing law. The crux of the the ruling is that judges cannot increase prison terms based on evidence that was never considered by a jury. While the ruling is unlikely to benefit a significant segment of California's bulging prison population, legal experts say it should influence state leaders as they press forward with plans to overhaul the state's sentencing system. Thousands of California inmates will now have a basis to argue for modest breaks in their sentences. The Supreme Court ruling, however, does not impact California's three-strikes-and-you're-out law or most serious criminals facing potential life terms for murder, rape and other violent felonies. More likely it will affect the typical felony case against burglars, robbers and defendants who commit sexual assault who do not face those stiff punishments
For prosecutors and defense lawyers, it could take months to evaluate the complex ruling and its consequences for inmates doing time. Michael Kresser, director of a San Jose-based appellate project that handles the bulk of criminal appeals from the South Bay, estimates he has about 200 cases from Santa Clara and nearby counties in which defendants may be able to argue for a sentencing break. Full story from San Jose Mercury. . . [Michele Berry]
Japan: Parolees to Hear Victims' Suffering via Offender's Rehabilitation Law
Under Japan's new Offenders Rehabilitation Law, part of a the country's recently approved Program Outline for the Relief of Crime Victims, specially appointed probation officers will be assigned to meet with victims to hear their stories--which often tell of lives changed completely as a result of the crime, and a deep-rooted resentment toward the offenders. Victims' sentiments and circumstances will then be conveyed as faithfully as possible to the officers in charge of the offenders.
The system comes in response to a surge of nongovernmental bodies stressing to the Diet that criminals are too often unaware of how large an impact their actions have on the physical, mental and economic well- being of their victims--with effects that can often stretch over many years. According to the legislation's supporters, given that offenders on probation are seen to be making a certain amount of progress, their rehabilitation can be further hastened by having them squarely face up to the consequences of their behavior. The program is only for parolees, not for presently-incarcerated convicted criminals. Mentally unstable parolees who lack the capacity to appreciate the consequences of their actions will be exempted from the system as well. Full story from Daily Yomiuri Online. . . [Michele Berry]
January 22, 2007
SCOTUS Agrees to Hear Brendlin v. California
On Fri., Jan. 19, 2007, the U.S. Supreme Court accepted the case Brendlin v. California, which addresses the issue as to whether a car passenger "seized" in a police stop has a 4th Amendment right to contest the legality of the original stop.
Police stopped a car for a traffic violation. Brendlin was a passenger. The police seized evidence of methamphetamine manufacturing that was in the car and on Brendlin's person. At his criminal trial Brendlin objected to the evidence on the ground that it was the illegal fruit of an illegal traffic stop.
The California Supreme Court held (in a 4-3 vote) that "the passenger, whose progress is momentarily stopped as a practical matter, is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority." As a result, Brendlin did not have standing to object to the evidence that was seized.
SCOTUS Decides two Criminal Cases
In Cunningham v. California, No. 05-6551, the court struck down California's determinate sentencing scheme, which authorized judges to find facts that exposed defendants to "upper term" sentences above the presumptive term of imprisonment, on the ground that it violated the Sixth Amendment right to a jury trial as interpreted in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. See related posts here and here.
In Jones v. Bock, No. 05-7058, the court answered several questions concerning the Prison Litigation Reform Act's requirement that prisoners exhaust administrative grievance procedures before seeking redress in a civil rights action under 42 U.S.C. §1983. The court ruled that the PLRA's exhaustion requirement does not demand that inmates plead and demonstrate exhaustion in their complaints, but instead obliges defendants to raise a failure to exhaust as an affirmative defense. Nor, said the court, does the exhaustion requirement permit suit only against defendants who had been identified by the prisoner in the earlier grievance. Finally, the court held that a prisoner's failure to exhaust as to any single claim in the complaint does not require dismissal of the entire action.