Friday, November 16, 2007
From the new Brian Leiter study. [Revised] CRIMINAL LAW and PROCEDURE
1. Dan Kahan (Yale University), 1070 citations, age 44.
2. Robert Weisberg (Stanford University), 1060 citations, age 61.
3. George Fletcher (Columbia University), 1040 citations, age 68.
4. William Stuntz (Harvard University), 970 citations, age 49.
5. Stephen Schulhofer (New York University), 870 citations, age 65.
6. Albert Alschuler (Northwestern University), 820 citations, age 67.
7. Michael Tonry (University of Minnesota), 810 citations, age 62.
8. Joshua Dressler (Ohio State University), 790 citations, age 60.
9. Paul Robinson (University of Pennsylvania), 770 citations, age 59.
10. James S. Liebman (Columbia University), 740 citations, age 55.
11. Christopher Slobogin (University of Florida), 680 citations, age 56.
12. Samuel Gross (University of Michigan), 650 citations, age 61.
12. Richard H. McAdams (University of Chicago): 650 citations, age 47.
14. Anthony Amsterdam (New York University), 610 citations, age 72.
15. David A. Harris (University of Pittsburgh), 590 citations, age 50.
16. Yale Kamisar (University of San Diego), 550 citations, age 78.
17. Stephen Saltzburg (George Washington University), 520 citations, age 62.
18. George C. Thomas III (Rutgers University, Newark), 520 citations, age 60.
19. Susan Bandes (DePaul University), 500 citations, age 56.
20. Nancy King (Vanderbilt University), 430 citations, age 49.
Runners-up: Orin Kerr (George Washington University), 410 citations; Stephanos Bibas (University of Pennsylvania), 400 citations; Sara Sun Beale (Duke University), 390 citations; Marc Miller (University of Arizona), 390 citations; Donald Dripps (University of San Diego), 380 citations; Jerold Israel (University of Florida), 380 citations; David Baldus (University of Iowa), 370 citations; Tracey Meares (Yale University), 370 citations; David Sklansky (University of California, Berkeley), 370 citations; Paul Butler (George Washington University), 360 citations; Stephen Garvey (Cornell University), 340 citations; Susan Klein (University of Texas), 340 citations; Bernard Harcourt (University of Chicago), 330 citations.
Other highly-cited scholars who don’t work exclusively in this area: Larry Alexander (University of San Diego), 980 citations; Kent Greenawalt (Columbia University), 960 citations; Michael S. Moore (University of Illinois), 920 citations; Mark Kelman (Stanford University), 730 citations; Gabriel Chin (University of Arizona), 450 citations; Ronald J. Allen (Northwestern University), 400 citations.
The twist and turns of the law will come to life when attorney and best-selling author Scott Turow speaks at the College of Law, Friday, November 16 at 9:00 a.m. He will discuss capital punishment. All are invited to attend.
Turow, the award-winning author of the #1 New York Times best-seller Presumed Innocent (1987), brought to life the story of Rusty Sabich, Kindle County’s long-time chief deputy prosecutor. He followed that work with seven additional best-selling novels: The Burden of Proof (1990), Pleading Guilty (1993), The Laws of Our Fathers (1996), Personal Injuries (1999), Reversible Errors (2002) and Ordinary Heroes (2005) and Limitations (2006). He has also written two non-fiction books: One L (1977), an autobiographical story about his experience as a first-year Harvard Law student, and Ultimate Punishment (2003), a reflection on the death penalty. In addition, Turow is a frequent contributor of essays and op-ed pieces to numerous publications, including The New York Times, Washington Post, Vanity Fair, The New Yorker, Playboy and The Atlantic.
Even though he is an accomplished writer, Turow still works as an attorney, concentrating on white collar criminal defense for firm Sonnenschein Nath & Rosenthal. Prior to joining the firm, he worked as a supervisor in the United States Attorney’s Office, honing his skills by conducting federal criminal prosecutions, including grand jury matters, as both a prosecutor and as defense counsel. He was one of the prosecutors in the trial of Illinois Attorney General William J. Scott, who was convicted of tax fraud. Turow was also lead government counsel in a number of the trials connected to “Operation Greylord”, a federal investigation of corruption in the Illinois judiciary.
Today, he devotes significant time to pro bono cases, including capital cases. He is well-known for his successful representation Alejandro Hernandez in the appeal that preceded Hernandez’s release after nearly 12 years in prison—including five on death row—for a murder he did not commit.
Turow is currently Chair of the Illinois Executive Ethics Commission, and previously served as a member of the Illinois Commission on Capital Punishment, whose recommendations led to substantial reforms of the Illinois death penalty. [Mark Godsey]
Thursday, November 15, 2007
From NYTimes.com: The Supreme Court is blocking the execution of a convicted child killer in Florida. Hours before Mark Schwab was scheduled to die, the high court stepped in, as it was widely expected to do.
The court is considering the appeals of two inmates in Kentucky who are challenging the same drug combination that is used in Florida to put inmates to death.
Schwab was sentenced to death for the murder of an 11-year-old boy. He'd seen the boy's picture in the newspaper shortly after Schwab was released from prison on a sexual assault sentence. He gained the confidence of the family by claiming he was with the newspaper and was writing an article about the boy.
Rest of Article. . . [Mark Godsey]
University of Minnesota and now Visiting Harvard Law School Crimprof Professor Kevin Washburn has noted the following update on criminal justice in Indian country:
week the Denver Post ran a series of four articles on criminal justice
in Indian country. It documents serious law enforcement problems in
Indian country, including the significant logistical problems that
arise in these cases in which trial often occur hundreds of miles from
the scene of the crime, the US Attorney scandal (several of the fired
U.S. Attorneys were allegedly fired for pursuing their Indian country
agendas too vigorously), homicides uninvestigated or poorly
investigated, assaults unprosecuted in which the assault suspect later
committed rapes or homicides.
It also mentions the "cavalry effect," the historical dynamic that causes tribal communities to turn against their own crime victims when victims summon federal authorities onto the reservation for investigations. A serious problem highlighted in the series is that, as Congress has doubled the federal budget allocations for Indian country offenses, federal law enforcement agencies have shifted the resources to other priorities. The series also highlights the challenges in determining how to address these difficult problems.
Washburn adds: "I spent many hours on the phone with the Denver Post reporter (Mike Riley) over the course of the past year and he had read most of my work very closely even before our first conversation. The reporter quickly internalized my analysis and then brought his own tremendous insight. I feel like my law scholarship has come alive through real world examples of many of the problems I have raised. I understand that the series will be nominated for a Pulitzer Prize in investigative journalism and I hope that it wins. The timing of the story is important because the Senate Committee on Indian Affairs is developing legislation that will attempt to address some of these problems."
testified before the Senate Committee on Indian Affairs in June,
shortly after the release of an Amnesty International report came out
criticizing the United States for the dysfunctional American criminal
justice system on Indian reservations that has allowed an epidemic of
sexual violence against women.
Amnesty Report. . . Denver Post Articles. . . [Mark Godsey]
Wednesday, November 14, 2007
Quinney College of Law CrimProf Paul Cassell served on the U.S. District Court in Utah from 2002 through 2007. Before serving on the bench, Judge Cassell was the Farr Professor of Law at the College of Law and established himself as the nation’s leading expert in victim’s rights. He is also a leader in sentencing guideline reform.
Cassell’s op-ed, “Repairing a Crack in the System,” appeared in the November 13, 2007 on-line edition of the Washington Post. It argues that the current disparity in federal sentencing guidelines for crack and powder cocaine offenses has produced effects that “have been more harmful than good” and advocates a reduction in recommended sentences for the majority of crack cocaine offenses.
Read Op-Ed. . . [Mark Godsey]
From statemenjournal.com:The 1,000-foot zone around Oregon schools to protect students from drug dealing appears to have gotten a little tighter. The Oregon Supreme Court ruled unanimously last week that prosecutors do not need to prove a dealer knew that a drug sale was within 1,000 feet of a school.
Williamette University CrimProf Laura Appleman said the ruling follows the principle established in other states that have established drug-free zones around schools.
"I think that's typical with drug crimes when you're looking ... at the social harm as opposed to the mental intent of the seller," Appleman said.
he case involved a man who was convicted in the sale of cocaine to an informant working with an undercover police officer at a high school in Portland.
The defendant had argued during his trial that the jury be instructed that a conviction required that he knew the sale occurred within 1,000 feet of school property. The trial judge rejected the argument, but it was upheld by the Oregon Court of Appeals.
The Oregon Supreme Court reversed the appeals court, saying that requiring knowledge of the distance from the school only would give drug dealers an incentive to claim they did not know how close they were to school grounds.
Chief Justice Paul De Muniz wrote the drug zone law was clearly intended "to give drug dealers a reason to locate the 1,000 foot school boundary and stay outside of it." Rest of Article. . . [Mark Godsey]
Tuesday, November 13, 2007
Lethal injection executions in this country are performed by untrained, unqualified prison employees using inadequate equipment and following incomprehensible protocols, according to an amicus brief filed today by the Death Penalty Clinic (DPC) at the University of California, Berkeley, School of Law. The brief was filed in support of the Petitioner in Baze v. Rees, currently pending in the U.S. Supreme Court.
The clinic surveyed thousands of pages of documents from more than a dozen states, concluding that states have "turned a blind eye" to the foreseeable problems inherent in the three-drug lethal injection formula, and have allowed "ignorance and neglect—rather than science and deliberation—to guide the formation and implementation of lethal injection protocols." The Supreme Court is likely to hear oral argument in the Baze case in January of 2008.
Clinic Associate Director Ty Alper, counsel of record for the clinic, and Professor Elisabeth Semel, the clinic's director, filed the brief on behalf of death-sentenced inmates who are litigating lethal injection challenges in California, Missouri, Maryland, and Florida. The brief, prepared with the assistance of the clinic's Eighth Amendment fellow and two clinic students, begins by explaining the dangers inherent in the three-drug formula, and describes how the failure to correctly administer anesthesia to the inmate can result in an excruciatingly painful, and torturous, death. Alper announced that the brief details the "widespread lack of professionalism and competency in the administration of lethal injection in this country."
The following are just a few of the Death Penalty Clinic's findings:
- Executioners in many states have never even read the lethal injection protocols that supposedly govern their actions. For example, in California, an execution team member was asked whether she had read the protocol. She responded, "I don't know what you're talking about." In Maryland, the execution team leader had never seen a copy of the execution operations manual.
- Executioners in many states have received no training with respect to implementation of the three-drug protocol. For example, in California, executioners testified that "we don't really have training, really" and that there are no procedures in place to deal with foreseeable malfunctions in the execution equipment. In Florida, where then-Governor Jeb Bush declared a moratorium on executions after a horribly botched lethal injection execution, the state's primary executioner testified that he had no medical training or qualifications, nor had he received any training to conduct executions.
- Executioners in many states are utterly unqualified to perform executions. For example, the doctor responsible for overseeing executions in Missouri has been sued for malpractice more than 20 times, and has been reprimanded by the State's medical board. Although a federal judge banned him from participating in Missouri executions, the Federal Government has used him as a consultant on its lethal injection protocols. In California, a federal judge suggested a criminal investigation may be necessary to investigate whether execution team members at San Quentin State Prison have been stealing some of the execution drugs instead of using them for practice executions.
- Lethal injections in some states have been governed by incomprehensible or nonsensical protocols. For example, until this year, Tennessee's lethal injection protocol was so poorly drafted that it contained instructions for the electrocution of the inmate, including shaving his head and ensuring a fire extinguisher was nearby prior to the lethal injection. In Oklahoma and North Carolina, protocols called for prison employees to administer a dose of anesthesia after the inmate was already dead. [Mark Godsey]
From washingtonpost.com: An independent panel is considering reducing the sentences of inmates incarcerated in federal prisons for crack cocaine offenses, which would make thousands of people immediately eligible to be freed.
The US Sentencing Commission, which sets guidelines for federal prison sentences, established more lenient guidelines this spring for future crack cocaine offenders. The panel is scheduled to consider today a proposal to make the new guidelines retroactive.
Should the panel adopt the new policy, the sentences of 19,500 inmates would be reduced by an average of 27 months. About 3,800 inmates now imprisoned for possession and distribution of crack cocaine could be freed within the next year, according to the commission's analysis. The proposal would cover only inmates in federal prisons and not those in state correctional facilities, where the vast majority of people convicted of drug offenses are held. Rest of Article. . . [Mark Godsey]
Stetson University's College of Law CrimProf Robert Batey recently discussed the grand jury testimony's long history of secrecy, which is often difficult to break, with concern to the Fort Myers attorney representing an accused killer wants to know what was said in March when a grand jury didn’t indict his client and what has changed that has led to the recent indictment.
“I’m trying to find out for me whether there were witnesses who gave testimony different than what they gave later on,” said attorney Gary Bass. “In order for Mr. Mendez to get a fair trial.”
Bass is scheduled to argue today before Circuit Judge Thomas Reese why testimony presented to the grand jury should be disclosed. But that position could be a difficult one to argue successfully, given the long history of grand jury secrecy. A quick poll of local defense attorneys revealed that arguing this type of motion successfully is rare.
Mendez is charged with two counts of second-degree murder in the deaths of his wife, Whitney Mendez, and his mother-in-law, Lorena Stone, in July 2006. Mendez was arrested in February, but a grand jury in March declined to indict him on first-degree murder charges, saying the evidence was “circumstantial, consisting largely of DNA found at the scene.”
Because of the state's speedy trial law, prosecutors had to charge him by Aug. 1 but said they would only do so if detectives found new evidence. In late July of this year, less than 24 hours before the law would have precluded Mendez from prosecution, State Attorney Steve Russell announced Mendez would be charged with second-degree murder.
A judge, CrimProf Batey said, will have to balance the issues and decide whether a fair trial is impeded by keeping that testimony closed.
can understand the defense’s desire to get this information now,” he
said. “But I can also see the counterargument of the prosecutor given
the secrecy of the grand jury.”
Rest of Article. . . [Mark Godsey]
Monday, November 12, 2007
Since 1989, over 200 prisoners have been exonerated in the United States due to post-conviction DNA testing, their innocence proven beyond a shadow of a doubt. The original convictions in those cases occurred as a result of a number of errors, including mistaken identifications, false confessions, police and prosecutorial misconduct, ineffective assistance of counsel, perjury by jailhouse informants, and the use of dubious forensic science.
Presumably, the factors that led to the wrongful convictions in those cases overturned by DNA appear in matters that lack biological evidence (an estimated 80-90% of criminal cases overall), yet non-DNA cases are notoriously difficult to litigate. Over time, moreover, the rate of DNA exonerations is bound to diminish as pretrial DNA testing becomes commonplace and, thus, more innocent suspects are filtered out at the front end of the process. Accordingly, issues surrounding non-DNA claims of innocence will become increasingly significant.
These issues will be tackled at a two-day symposium to be held Nov. 15-16, 2007, at the University of Utah S.J. Quinney College of Law. More Information. . . [Mark Godsey]
American University Washington College of Law will celebrate the publishing of the second edition of Crimes of War: What the Public Should Know, written by CrimProf Roy Gutman and David Rieff, and with Legal Editor Ken Anderson. The 2nd Edition book launch will be held Wednesday.
Crimes of War is an
A-to-Z guide of wartime atrocities originally published in 1999. There
have been many developments on the international law front since the
original publication of the book, including the rise of the
International Criminal Court, the emergence of a global “war on terror”
and escalating humanitarian conflicts in Darfur and other regions. This
important book has been updated to reflect these developments.[Mark Godsey]
Sunday, November 11, 2007
From washingtonpost.com: On Wednesday, Hauge and David C. Monson, a fellow aspiring hemp farmer, will ask a federal judge in Bismarck, N.D. to force the DEA to yield to a state law that would license them to become hemp growers.
"I'm looking forward to the court battle," said Hauge, a 49-year-old father of three. "I don't know why the DEA is so afraid of this."
The law is the law and it treats all varieties of Cannabis sativa L. the same, Bush administration lawyers argue in asking U.S. District Judge Daniel L. Hovland to throw out the case. The DEA says a review of the farmers' applications is underway.
To clear up the popular confusion about the properties of what is sometimes called industrial hemp, the crop's prospective purveyors explain that hemp and smokable marijuana share a genus and a species but are about as similar as rope and dope. Rest of Article. . . [Mark Godsey]
From NYTimes.com: A Helena, Montana Prerelease Center employee, hearing something rustling in the bushes, threw a rock at a shrub.
To his surprise, he heard someone say ''Hey, you hit me in the head,'' said Helena Police Cpl. Bill Tompkins.
The rock had hit a 22-year-old escaped convict the center was searching for.
The convict was being transferred by bus from a prison in Seattle to one in Great Falls when he got off at the wrong stop in Helena on Friday, Tompkins said. It wasn't clear if the man meant to get off the bus in Helena or if it was a mix-up, Tompkins said.
The convict contacted the Helena Prerelease Center, which brought him from the bus stop to the center, Tompkins said.
Hours later, center employees noticed the convict was missing and alerted police, Tompkins said. They later called back saying to the convict was hiding in bushes outside the center.
Police found the man hiding behind some barrels, and took him into custody for probation violation, Tompkins said. Rest of Article [Mark Godsey]
From NYCLU.com: New York State is failing in its constitutional duty to provide effective counsel to New Yorkers accused of crimes who cannot afford to pay private lawyers, according to a landmark lawsuit filed today by the New York Civil Liberties Union and the law firm of Schulte Roth & Zabel LLP.
“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. “We filed this lawsuit today as a last resort, in response to the constitutional deficiencies identified by a commission appointed by Chief Judge Kaye to evaluate our public defense system, and the failure of lawmakers to compel the state to repair what is clearly a broken and unjust system.”
The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer. Rest of Article. . . [Mark Godsey]