November 24, 2007
CrimProf Spotlight: Peggy Tonon
This week the CrimProf Blog spotlights University of Montana School of Law CrimProf Margaret "Peggy" Tonon
Peggy Tonon is the Director for Student Affairs, Clinical Director, and a Clinical Supervisor. A graduate of Bates College and The University of Montana School of Law, she was a Deputy County Attorney for sixteen years, where she prosecuted everything from goats running at large to deliberate homicide before joining the faculty in 1990.
As a Clinical Supervisor, she supervises the three external prosecution clinics which represent city, county, and federal governments. As Director for Student Affairs, she is responsible for academic advising and student organizations.
She has been the recipient of the Robert and Pauline Poore Faculty Service Award and the Margery Hunter Brown Faculty Merit Award recognizing service to the law school community.
She is a member of the Western Montana Bar Association and the American Bar Association. She is also a member of the Clinical Section of the Association of American Law Schools and the Clinical Legal Education Association.
Her service to the Montana Bar includes membership on the Commission on Courts of Limited Jurisdiction and the Evidence Commission.
Tonon resides in Hamilton, Montana, with her husband, Warren Neyenhuis.
Denver Post on the Crisis in Indian Country
The Denver Post has a multi-part series on the crisis of law enforcement in Indian Country. Resources constraints and jurisdictional issues means many crimes do not get investigated in a timely fashion.
New Report on Prison Growth
Remote Handcuffing Device
Got a call from the inventor of a product that allows law enforcement officers to restrain a person without getting close to them--a remotely operated mechanical restraint attached to the bumper of the car. Remote handcuffing could improve officer safety because an individual could be restrained without the officer getting close enough to come into physical contact. Here's a link to a Youtube Video. Leave a comment if you have an opinion about the device. [Jack Chin]
November 23, 2007
New Article Spotlight: Police Interrogation During Traffic Stops: More Questions than Answers
Boston University School of Law CrimProf Tracey Maclin recently published Police Interrogation During Traffic Stops: More Questions than Answers on SSRN. Here is the abstract:
This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.
Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the principle that the F! ourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.
In Mendez, however, Judge Reinhardt reversed circuit precedent and ruled that during routine traffic stops, police are free to questions motorists about any subject, provided such questioning does not prolong the length of the traffic stop. Judge Reinhardt's opinion was based on his reading of two Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005). Judge Michael McConnell has adopted the same rule for the Tenth Circuit in United States v. Stewart, 473 F. 3d 1265 (10th Cir. 2007).
The article explains how Judge Reinhardt and Judge McConnell have misread Caballes and Mena. Their rulings have not only given police the authority to arbitrarily question motorists about ! criminal behavior, but also directly contradict the Fourth Amendment command that an investigative intrusion must be strictly tied and justified by the circumstances which render its initiation permissible. The judges' interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio. [Mark Godsey]
November 20, 2007
Cali Supreme Court Seeks Amendment to Allow Death Penalty Appeals to Go to Appellate Courts Instead of Supreme Court
From ap.org: The State Supreme Court will seek an amendment to the California constitution that would change the death penalty appeals process to help ease the court's backlog of cases, the chief justice said.
Under the current system, death sentences are automatically appealed to the California Supreme Court.
The proposal would allow many cases to be handled by one of the state's six appeals courts, with the high court stepping in when a significant legal issue needs resolution or justices find another reason to review it.
The number of automatic death sentence appeals already threatens to overwhelm the Supreme Court's docket, making up about 20 percent of the court's caseload, Chief Justice Ronald M. George said.
"I don't want to pretend this is going to solve all the problems. But it will solve a big part of it," he said Monday.
The average wait for execution in the state is now 17.5 years. The backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade. Rest of Article. . . [Mark Godsey]
Taiwanese Prosecutors-in-Training Come to Cornell Law School
For the first time, Cornell Law School will formally host two scholars from Taiwan, linking the Law School to a nation undergoing groundbreaking judicial changes. “The legal system in Taiwan at this moment is at a fascinating crossroads," said Annelise Riles, director of Cornell’s Clarke Program in East Asian Law and Culture. “Their Supreme Court has issued a number of very interesting rulings on matters of constitutional rights and election law. The judiciary is increasingly recognized for its independence. And most relevant to this exchange, there have been important procedural reforms regarding the rights of the accused in the criminal justice system. These legal reforms are being eyed as a model throughout Asia.”
The scholars are prosecutors-in-training at the Taiwanese Ministry of Justice’s Judicial and Prosecutorial Training Institute, a highly prestigious institution that prepares those who have passed Taiwan’s grueling bar examination for careers as judges or prosecutors. They will spend one academic year at Cornell Law beginning next fall. During their stay, they will conduct legal research, present lectures, take courses, and participate in scholarly workshops with faculty and students. The program will continue for two years and then will be evaluated for possible renewal. It is the first time Cornell Law School has instituted a formal international program for prosecutors to study at the university.
Cornell is one of four American universities—including Yale, Harvard and New York University as well as at institutions in London and Tokyo—at which prosecutors-in-training will study, thanks to an agreement with Taiwan’s Ministry of Justice. Larry S. Bush, executive director of Cornell's Clarke Center for International and Comparative Legal Studies, said the visiting prosecutors will provide several benefits for the Law School. "We will have an institutional tie with the Ministry of Justice in Taiwan, which is the highest level in their law enforcement system. It will bring professional prosecutors from Taiwan to the Law School, where they can interact with both students and faculty. It simply opens a door to the legal community in Taiwan for us." [Mark Godsey]
New Jersey May be First State to Repeal the Death Penalty Since 1976
The eight men confined to the Capital Sentences Unit of 3 Wing in the New Jersey State Prison, ranging in age from 77 to 30, have a better chance of dying of old age than they do of lethal injection on an executioner’s gurney.
For one thing, the state has not executed anyone since 1963.
But in a move that is being closely watched by both sides of the capital punishment debate, New Jersey is on track to become the first state to repeal the death penalty since the U.S. Supreme Court allowed executions to resume in 1976.
bill that would abolish New Jersey’s death penalty was approved by the
Senate Judiciary Committee this spring and is now on a fast track to be
considered by both houses within weeks. The Senate president, Richard J. Codey,
who supports the measure, said this month that he planned to bring the
bill to a vote before the full chamber by the end of the year. Rest of Article. . . [Mark Godsey]
November 19, 2007
FBI Report States that Hate Crimes Rose by 8 Percent
Hate crime incidents rose nearly 8 percent last year -- more than half motivated by racial prejudice, the FBI reported Monday, as civil rights advocates increasingly take to the streets to protest what they call official indifference to intimidation and attacks against blacks and other minorities.
Police across the nation reported 7,722 criminal incidents in 2006 targeting victims or property as a result of bias against a race, religion, sexual orientation, ethnic or national origin or physical or mental disability. That was up 7.8 percent from 7,163 incidents reported in 2005.
Although the noose incidents and beatings among students at Jena, La., high school occurred in the last half of 2006, they were not included in the report. Only 12,600 of the nation's more than 17,000 local, county, state and federal police agencies participated in the hate crime reporting program in 2006 and neither Jena nor LaSalle Parish, in which the town is located, were among the agencies reporting.
Nevertheless, the Jena incidents, and a subsequent rash of noose and other racial incidents around the country, have spawned civil rights demonstrations that culminated last week at Justice Department headquarters here. The department said it investigated the Jena incident but decided not to prosecute because the federal government does not typically bring hate crime charges against juveniles.
Rest of Article. . . [Mark Godsey]
Michigan Law Review Host Symposium on Pay-to-Stay Programs in Correctional Facilities
The Michigan Law Review's companion journal First Impressions today published an online symposium on Pay to Stay Programs in Correctional Facilities.
Approximately fifteen California jails have implemented pay-to-stay programs. These programs allow some offenders to pay a daily fee in order to serve their sentences in a city-run or privately-managed correctional facility rather than in a county jail. In some programs, benefits include assignment to a private cell with a regular door, separation from violent offenders, access to the jail's movie collection, and the ability to carry an iPod or cell phone. The symposium contributors consider the implications of these pay-to-stay programs.
Stanford Law School Professor and Stanford Criminal Justice Center Director Robert S. Weisberg argues that pay-to-stay, if it is honestly represented, could prove salutary for the criminal justice system if recognized as part of our somewhat ritualized cycle of constructive self-embarrassment over the role of wealth in criminal justice. He contends that, by increasing public awareness about incarceration costs, pay-to-stay may lead politicians to become more willing to treat criminal punishment as a regulatory system worthy of cost-benefit analysis rather than a deontological necessity.
USC Gould School of Law Professor Kim Shayo Buchanan unpacks the gendered racial stereotypes that accompany pay-to-stay programs. She explores how the government publicizes pay-to-stay programs for wealthier lawbreakers (generally perceived as white drunk drivers) while confining tens of thousands of others in dangerous, squalid conditions.
Loyola Law School Los Angeles Professor Laurie L. Levenson and Loyola Los Angeles J.D. candidate Mary Gordon identify five truths implicit in the influence of money in the criminal justice system that explain why—despite pay-to-stay's superficial appeal—we must look deeper to rehabilitate our ailing criminal justice system.
Santa Ana Chief of Police Paul M. Walters and Jail Administrator Russell Davis explain how the City of Santa Ana's Pay-to-Stay Program fits into the City's entrepreneurial innovations relating to its new jail. They argue that these innovations, including pay-to-stay and contract housing, have enabled the city to meet the incarceration needs of the Police Department without incurring exorbitant operational costs.
Los Angeles criminal defense attorney and chief legal correspondent for the E! Network Shawn Chapman Holley asserts that pay-to-stay is a bad idea for defendants and that the county jail is actually a wiser choice for most defendants.
University of Michigan J.D. candidate Bradley W. Moore contends that pay-to-stay jails show that the state cannot balance the competing concerns of the traditional theories of punishment—deterrence and retribution—under its current rubric. He proposes that virtue ethics instead be used to assess whether a criminal justice reform such as pay-to-stay should be adopted. More. . . [Mark Godsey]
Questioning the State of the Death Penalty
Although polls show that about 65 percent of the public still supports capital punishment in the abstract, the number of juries opting for death has plunged, from 317 in 1996 to 128 in 2005, the latest year for which complete data are available. Similarly, the number of executions has dropped from a modern high of 98 in 1999 to 53 in 2006.
At the same time, experts agree, many prosecutors have become more reluctant to seek the death sentence.
And now the Supreme Court has imposed a de facto moratorium on executions while it considers the claims of two Kentucky death-row inmates (Baze v. Rees) and others that the often-botched lethal-injection method used by most states and the federal government may inflict gratuitous pain on condemned prisoners.
The best that death-penalty opponents can hope for in the Kentucky case is a decision requiring states to devise a less error-prone, more pain-free execution procedure. Whatever the outcome, we will probably see a temporary spike in executions after the moratorium ends.
But four factors -- more significant than anything that the justices have done or will probably do -- seem likely to keep the number of death sentences and executions down in the long run.
- Irrefutable DNA evidence has exonerated some 15 death-row inmates and almost 200 other men convicted of murder or rape, mostly since the late 1990s. This DNA-evidence revolution, along with non-DNA evidence proving the innocence of a great many more condemned men and other prisoners, has alerted many who support the death penalty in principle to the fallibility of the criminal-justice system and the risk of executing innocent people.
- More and more murder defendants have competent trial lawyers, thanks to judicial and legislative decisions requiring more state spending on indigent defense and the work of nonprofits and pro bono lawyers. Few defendants with good trial lawyers get death sentences. And the costs to the state of a well-defended death-penalty trial are often much higher than the costs of imprisoning the defendant for life. All of this has made prosecutors more reluctant to seek death.
- Fewer jurors believe that a death sentence is the only sure way
to keep a murderer off the streets. The main reason is that more states
-- notably including Texas, which leads the nation in executions --
have provided life imprisonment without the possibility of parole as an
(To be sure, a somewhat related reason for the drop in death sentencing -- the greatly diminished public fear of crime after the dramatic decline in crime rates between 1994 and 2005 -- could prove transitory if the rise in crime rates over the past two years accelerates.)
- Finally, for many centuries people have recoiled against one execution method after another, despite efforts to make them less horrible and less painful. The same seems true now.
Rest of Article. . . [Mark Godsey]
November 18, 2007
CrimProfs James A. Cohen and Peter Keane Weigh in on Potential Barry Bond Trial
From NYTimes.com: As news of Barry Bond’s indictment on federal charges of perjury and obstruction of justice spread, handicapping a likely trial and predicting possible strategies immediately became popular throughout the nation’s law schools.
The majority opinion, several professors said in telephone interviews, was that the government had to keep Bonds from seeking refuge in semantics, as President Bill Clinton did with his famous defense, “It depends on what the meaning of the word ‘is’ is.”
Bonds, baseball’s career home run leader, was indicted Thursday on four felony counts of lying to a federal grand jury in 2003 and one count of obstruction of justice. During an investigation of the Bay Area Laboratory Co-Op Bonds testified that he never knowingly took steroids or other illegal performance-enhancing drugs.
“I think the biggest challenge the prosecution will face is making the clarity of the questions that they asked stick,” said Fordham University CrimProf James A. Cohen. “If you don’t ask clear questions, it becomes much harder to prove that the answers are false.”
Golden Gate University CrimProf Peter Keane said: “Someone can always explain, ‘Well, I really didn’t mean that, or my memory was wrong in that situation, or I was confused or I had other kinds of problems in regard to the questions.’ If you can raise a reasonable doubt, then the jury can’t convict you.”
Bonds’s four perjury counts pertain to his denial of taking steroids and human growth hormone supplied by his trainer, Greg Anderson; his denial that he had received injections or had blood drawn by anyone but physicians; and the timing of those actions. Rest of Article. . . [Mark Godsey]
Exonerated Man Discusses His Time on Death Row
Kirk Bloodsworth, whose capital conviction was the first in the country to be overturned as a result of DNA testing, will speak at 6 p.m. on Monday, November 19.
A former marine with no criminal record, Bloodsworth was wrongfully convicted and sentenced to death in Maryland in1984 for a rape and murder that he did not commit. He spent nearly nine years in prison before DNA testing proved his innocence in 1993. It took another 10 years before the Maryland State’s Attorney announced that a DNA match had identified the actual perpetrator of the crime. That person pleaded guilty to the murder for which Bloodsworth had been wrongfully convicted.
Bloodsworth is now the program officer for The Justice Project, a nonpartisan organization in Washington, D.C., that addresses unfairness in the American Criminal Justice System. He will be joined at the presentation by John Terzano, president of The Justice Project.
The Justice Project develops and coordinates national and state-based campaigns involving public education, litigation and legislation to reform the criminal justice system, with particular focus on capital punishment. Bloodsworth and The Justice Project led a five-year campaign to pass the Innocence Protection Act in the U.S. Congress. The bill, which established the “Kirk Bloodsworth Post-Conviction DNA Testing Program,” was signed into law in 2004.
The dramatic story of Bloodsworth’s 20-year journey is chronicled in the book “Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA.” [Mark Godsey]
FBI Fail to Alert Defendents of the Failure of Comparative Bullet-Lead Analysis
From washingtonpost.com: Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by the Washington Post and Sixty Minutes has found.
The science, known as comparative bullet-lead analysis, was first used after President John F Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.
In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."
A year later, the bureau abandoned the analysis.
But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau's managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.
Rest of Article. . . [Mark Godsey]