February 3, 2007
New Article Spotlight: Illegal Predicate Searches and the Good Faith Exception
The University of Illinois Law Review recently published Kenneth C. Halcom's article titled "Illegal Predicate Searches and the Good Faith Exception." Here is the abstract:
In United States v. Leon, the U.S. Supreme Court created the good faith exception, which provides that the exclusionary rule does not bar evidence seized in reasonable reliance on a warrant issued by a detached and neutral magistrate in criminal trials. This note examines whether the good faith exception applies to evidence seized pursuant to a warrant that is itself the fruit of an illegal search.
After examining the ambiguities between the narrow holding and broad rationale of Leon and tracing the origins of the split of authority regarding illegal predicate searches, the author analyzes three different ways that courts have resolved the issue: extending the good faith exception, refusing to extend the exception, and making application of the exception contingent on the disclosure of facts concerning the predicate search to the magistrate.
The author explains why all three of these approaches are unsatisfactory before proposing a novel, three-step analysis. The author's proposed approach attempts to remain consistent with existing doctrine and to restore both the defendant and the government to the status quo ante.
February 2, 2007
CrimProf Spotlight: Richard Leo
This week the CrimProf Blog spotlights University of San Francisco School of Law CrimProf Richard Leo.
Many readers of this blog are familiar with Richard Leo’s research and publications on routine police interrogation practices ("Inside the Interrogation Room" (1996), The Journal of Criminal Law and Criminology; "Police Interrogation as a Confidence Game" (1996), Law & Society Review), the impact of Miranda in the real world (“The Impact of Miranda Revisited" (1996), The Journal of Criminal Law and Criminology; "Adapting to Miranda (1999), Minnesota Law Review; "Questioning the Relevance of Miranda in the Twenty-First Century" (2001), The Michigan Law Review), the psychology of police interrogation and false confession ("The Decision to Confess Falsely” (1997), Denver University Law Review; “The Social Psychology of Police Interrogation” (1997), Studies in Law Politics and Society), the consequences of false confession and wrongful conviction ("The Consequences of False Confessions" (1998), The Journal of Criminal Law and Criminology; The Problem of False Confessions in the Post-DNA World” (2004) North Carolina Law Review), and regulating interrogation practices and confession evidence (“Bringing Reliability Back In” (2006), Wisconsin Law Review; “The Ethics of Deceptive Interrogation” (1992) Criminal Justice Ethics).
In addition to his many articles and book chapters on these and related subjects, Leo has recently completed two books: Police Interrogation and American Justice will be published by Harvard University Press in the Fall of 2007; and Web of Lies: Murder and Injustice in Virginia (with Tom Wells) will be published by The New Press in 2008 (Leo has previously authored The Miranda Debate: Law, Justice and Policing (1998) with Rutgers CrimProf George Thomas.
After 9 years as a faculty member at U.C. Irvine (in the Departments of Criminology and Psychology) and 3 years as a faculty member at CU Boulder (in the Sociology department and Law School), Leo has joined the faculty at the University of San Francisco Law School, where he will teach criminal law, criminal procedure, white-collar crime, and wrongful convictions. Leo is widely sought after as a consultant and expert witness in criminal and civil cases involving disputed interrogations and confessions, and has worked on many of the most high profile interrogation and confessions cases of the last two decades (including the Central Park Jogger case, Michael Crowe, Earl Washington, and others). He has also worked with many Innocence Projects: for example, he helped the Innocence Project at Cardozo Law School win the freedom of Bruce Godschalk, the Innocence Project at the University of Wisconsin win the freedom of Beth LaBatte, and the Innocence Project at the University of Washington reverse the wrongful conviction of Ted Bradford. Leo regularly lectures to organizations of criminal defense attorneys, prosecutors, judges and/or forensic psychologists and psychiatrists in America and Canada.
February 1, 2007
Ex-Inmate Helps Florida Find Plan for Re-Entry
From orlandosentinel.com: For five months, members of Orlando Mayor Buddy Dyer's crime-fighting panel have been searching for ways to reduce violence.
On Wednesday, one solution became crystal clear. Delgardo Royal, a 45-year-old Orlando man released Monday from a Florida Panhandle prison, told the Mayor's SAFE Orlando Task Force about coming home with no money, no job and the temptation to return to crime to survive.
"I'm at the crossroads right now," he said. "I'm not going back to prison. I'll die on the streets instead of going back to prison. I know what it's like being out on the streets. I just need someone to be near the phone to catch me if I fall."
His safety net was a community activist and former probation officer he met four years ago. Royal called Mercedes Bigelow late Monday from Orlando's bus station. She picked him up, took him to a neighbor's home and then brought him to meetings of the task force Tuesday and Wednesday because she figured who better to describe the needs of those released back into the community from prison.
Royal's experience during the past few days led to the kind of solution the task force is proposing: A one-stop resource center to help ex-convicts get drivers licenses, jobs, medical care, mental-health counseling and other services so they don't return to crime.
When Bigelow brought Royal to a subcommittee meeting Tuesday, his story reduced participants to tears. Members Brandy Hand and Sarah Kelly went out and bought him clothes and shoes with their own money. They also contacted City Commissioner Robert Stuart, who runs the Christian Service Center, where Royal's other needs were assessed.
After Wednesday's meeting of the full task force, several board members -- pastors, businessmen and the president of the Metropolitan Orlando Urban League -- offered to help find Royal housing and a job. One pastor talked to him about setting up an apartment house for released inmates. Other panel members were busy on cell phones trying to line up job interviews with the city, landscaping and flooring companies.
"We are the intervention team," said Joshua Kirven, a psychologist, community liaison with the 9th Judicial Circuit's Public Defender's Office and task-force volunteer. "We've been talking about this for six months, and we finally have come full circle. Now, we've intervened on an offender's behalf."
Rest of Article. . . [Mark Godsey]
Location and Emotions Lead to 1st Fed Death Penalty Conviction in NY in over 50 Years
From nytimes.com:They were police detectives, shot at close range, in the backs of their heads. Fellow officers and relatives filled the courtroom, day after day, during the trial of the man accused of pulling the trigger, who mostly kept his emotions to himself.
Add to that where the jurors came from — Brooklyn, Queens, Staten Island and Long Island, but not Manhattan. And that the detectives knew, and were known in, the neighborhood, which gave the case a strong local connection — unlike, say, a case involving terrorist acts overseas.
Taken together, all those elements were so powerful, death-penalty specialists said yesterday, that the jury’s verdict seemed almost inevitable. The seven women and five men decided that the defendant, Ronell Wilson, should die.
That made him the first person to face death in a federal case in New York since the 1950s, a fate that other defendants have managed to avoid, even though some of them have been accused of killing far more people. “There was a confluence of factors,” said Deborah W. Denno, a professor at Fordham University School of Law. “I think it’s highly unlikely there will be another case with all these particular elements anytime soon.”
For that reason, she and other lawyers interviewed yesterday said they doubted that the Wilson verdict signaled a shift in public attitudes about the death penalty. Michael Greenberger, a law professor at the University of Maryland, noted that advances in DNA testing have uncovered faulty convictions and made juries nationally more hesitant to impose the death sentence. But he said there were no such doubts in the Wilson case. Rest of Article. . . [Mark Godsey]
University of Buffalo CrimProf Charles Ewing Discussed the Reliability of Bullet Fragments
From newsday.com: University of Buffalo School of Law CrimProf Charles Patrick Ewing recently discussed the Syosset couple who found by their young children shot to death in the family's two-story home were apparently targeted, but police said yesterday that a motive for the killings remained a mystery.
Meanwhile, bullet fragments - which are useful in a continuing homicide investigation - were recovered from the bodies of Jaspal and Geeta Singh in the autopsies, Nassau's Homicide Squad commander said.
"It's unlikely police will make a ballistic match to the murder weapon using only fragments," said CrimProf Charles Patrick Ewing. "You'll need a lot more than fragments," he said, adding "like an entire bullet." Rest of Article. . . [Mark Godsey]
January 31, 2007
Body Farm Inventor and Authors Sit Down for Interview
From instapundit.com: Pioneering forensic anthropologist Dr. Bill Bass is the inventor of the University of Tennessee "body farm," made famous by Patricia Cornwell's bestselling novel of the same name. Bass is also, with Jon Jefferson, a bestselling author in his own right under the name Jefferson Bass.
The reporters talk to Dr. Bass and Jon Jefferson about forensic anthropology, their new novel Flesh and Bone, what CSI gets wrong, and how to have fun in Chattanooga's gay bars. Plus, Dr. Bass's new effort to find out what happened to the Big Bopper in his plane crash with Buddy Holly and Richie Valens. Listen.. . [Mark Godsey]
Ninth Circuit Says Exclusionary Rule Does Not Apply to Officers Who Fail to Show Search Warrant to Resident
From Criminal Law Reporter: The reasoning behind the U.S. Supreme Court's controversial decision in 2006 not to apply the exclusionary rule to violations of the Fourth Amendment's knock-and-announce rule carries over, the Ninth Circuit says, to other circumstances where a valid search warrant was executed in an unconstitutional manner.
The case involves a Fourth Amendment rule, recognized in circuit caselaw, that requires officers executing a search warrant to serve a copy of it at the premises. Bypassing a ruling on the continuing vitality of this rule, the Ninth Circuit instead relies on Hudson v. Michigan for the idea that the causal connection between a violation of the rule and a seizure of evidence pursuant to the warrant is too attenuated to justify suppression
Read More. . . [Mark Godsey]
University of San Diego CrimProf Shaun Martin Discusses Possibility of the Operating Brothers Being Tried with the Cartel Head
From SignOnSanDiego.com: University of San Diego CrimProf Shaun Martin recently discussed the possibility of the judge or the Prosecutor pushing for the two brothers accused of running day-to-day operations for the Arellano Félix cartel in Tijuana and Mexicali who pleaded not guilty to be tried with the accused head of the organization.
Ismael and Gilberto Higuera Guerrero oversaw the importation of tons of cocaine and marijuana from Mexico into the United States, and kidnapped, tortured and killed cartel rivals in the process, prosecutors said. The Higuera brothers are scheduled to appear before U.S. District Judge Larry Alan Burns on Monday, along with Francisco Javier Arellano Félix and a man authorities said was his No. 2 man.
“He's been known to jam people into one big trial,” said CrimProf Martin. “Explaining the structure of the organization is so hard and takes so much time that judges are pressured to put as many defendants together as they can.” Rest of Article. . . [Mark Godsey]
January 30, 2007
Cali Uses Recruitment Videos to Stop Prison Overcrowding
From latimes.com:Tasty meals! A room with a view! Ping-Pong! Cable TV!
In one of the more unusual marketing campaigns undertaken by state government, California prison officials are asking inmates to bid adieu to their cellmates and transfer to lockups elsewhere in the country.
As part of the recruitment drive, wardens are screening a film extolling the virtues of out-of-state prisons and reminding convicts of the violent, overcrowded, racially charged conditions they face in California.
"You get 79 channels here — ESPN!" one tattooed California felon, now housed in Tennessee, says in the movie.
"They talk to us like humans," says another, "not like animals."
The campaign reflects the desperation corrections officials face as they grapple with a ballooning prison population and no easy fix. Leaders say they will run out of room for new inmates by summer, and a federal judge has ordered the overcrowding eased by June.
Gov. Arnold Schwarzenegger has unveiled a sweeping $11.9-billion prison building and reform plan. But its prospects are uncertain in the Legislature, and creating bed space — whether through the construction of new cells or policy changes that slow the incoming tide of convicts — cannot be accomplished overnight. Rest of Article. . . [Mark Godsey]
CrimProf David Orentlicher will Argue in Death Penalty Debate
On February 23, Indiana University School of Law CrimProf David Orentlicher will participate in an Oxford-style debate on the death penalty, moderated by Butler University President Dr. Bobby Fong. Orentlicher will argue against the death penalty, while attorney Thomas Farlow will argue for it. The event takes place at Eidson-Duckwall Recital Hall on the Butler University campus at 7:30 p.m. The event is sponsored by IICACP, Law Students Against Capital Punishment, Butler University, the Indiana University School of Law – Indianapolis, and the Christian Theological Seminary.
Before coming to the law school in 1995, David Orentlicher served as director of the Division of Medical Ethics at the American Medical Association for six-and-a-half years. He also held adjunct appointments at the University of Chicago Law School and Northwestern University Medical School, and from 1992 to 1995, served on the founding board of the American Association of Bioethics.
Currently, he is on the core faculty of the Indiana University Center for Bioethics, an adjunct professor of medicine at Indiana University School of Medicine, and a member of the American Law Institute. He also serves on the board of the Gennesaret Free Clinic. Professor Orentlicher has served in the Indiana House of Representatives since 2002.
CrimProf Douglas Berman Discusses Scamming Park Director Sentence
From columbusdispatch.com: Ohio State University Moritz College of Law CrimProf Douglas Berman recently discussed the Franklin County prosecutor's decision to call for the former Columbus recreation and parks director and his former girlfriend to serve at least 60 days each for scamming taxpayers.
Wayne A. Roberts and Krystal Griffin pleaded guilty to theft and tampering with records. He signed off on her false time sheets for years before someone turned them in to police last summer. Roberts resigned and Griffin, a part-time employee with the city, was removed from the payroll.
"I think it’s awfully unlikely that they would get a sentence at the high end," said CrimProf Berman. He noted that both are first-time offenders who pleaded guilty instead of making prosecutors take them to trial.
"All judges are understandably concerned about being consistent. They also understand individual justice," he said. "The devil is always in the details." Rest of Article. . . [Mark Godsey]
January 29, 2007
Philly's Overcrowded Jails violate the Constitution
From philly.com:Philadelphia's jails are so overcrowded and dangerous that they violate the constitutional rights of inmates, a federal judge ruled yesterday.
In a scathing 76-page ruling, U.S. District Judge R. Barclay Surrick ordered the city to immediately provide prisoners with clean cells, toilets, showers, beds and medical attention, as well as to dramatically reduce the time that suspects are kept in police lockups.
City jails will again be put under court monitoring - as they have been for most of the last 35 years.
Surrick, who toured the city's Curran Fromhold Correction Facility last month, said the "unconstitutional conditions... required detainees to sit and sleep on concrete floors."
"The conditions include the failure to provide beds and bedding, the failure to provide material for personal hygiene including soap, warm water, toothpaste, toothbrushes and shower facilities, unsanitary and unavailable toilet facilities, the failure to provide for the medical needs of detainees..."
Yesterday's ruling was in response to a lawsuit filed last year on behalf of 11 prisoners by University of Pennsylvania law professor David Rudovsky. The suit was the latest to be lodged against the city prison system. In 1971, Rudovsky filed a similar suit and the city jails were put under court monitoring that ended in 2001.
"The city is ordered to immediately take affirmative steps to redress the unconstitutional conditions," the ruling reads. It also gave Philadelphia 15 days to meet with the plaintiffs to work out details on court monitoring of the jails. Rest of Article. . . [Mark Godsey]
Black Children Convicted in Hate Crime Against White Women
From npr.org: In Long Beach, Calif., a juvenile court judge has convicted eight black girls and one boy of beating three young white women last year. One girl was acquitted of all charges. The defendants range between 12 and 18 years old. The racially charged case included allegations of witness intimidation.
The attack happened last Halloween in an upscale mostly white neighborhood filled with trick-or-treaters. Prosecutors called it a hate crime because they said the attackers hurled racial slurs at their victims.
Nine girls and one boy were charged with the attack. But their families say that the first call for help identified the attackers as a group of black males. Listen. . . [Mark Godsey]
San Jose Mercury News Re-examines the Santa Clara Criminal Justice System
Here is an extensive article from the San Jose Mercury News that reexamines the Santa Clara, California criminal justice system one year after the Mercury News published a five day series called "Tainted Trials, Stolen Justice", which addressed errors in the system and involved three years of investigation by the paper.
Here is a summary of the improvements made in the past year.
- A new district attorney has vowed to end a "win at all costs'' culture in the office.
- An independent state commission, the Commission on the Fair Administration of Justice (FAIR), chaired by former Attorney General John Van de Kamp, is recommending statewide policy changes and new laws to reduce the risk of wrongful convictions in cases relying on eyewitness identifications and jailhouse informants. And the county bar and the California Supreme Court have acted to address longstanding problems in the system.
- In the past year, six defendants who were sentenced to prison had convictions overturned or were released from custody in cases the Mercury News examined.
- And the decisions of the 6th District Court of Appeal, which oversees cases in Santa Clara and three neighboring counties, appear to demonstrate a new forcefulness. In the past year, the court has increasingly chastised local judges, prosecutors and defense attorneys for mistakes and misconduct. The court is reversing criminal cases at a rate higher than at any time in at least 18 years. Since 1988, the court's reversal rate has not exceeded 4.8 percent and averaged 3 percent. Last year, the rate climbed to 5.5 percent--still a small number, but strikingly higher.
And here is a summary of the problems originally addressed.
• Inadequate defense investigation. In three cases, felony convictions were overturned on appeal last year because lawyers for the defendants failed to properly investigate their cases. A fourth case has been scheduled for a hearing in March. Most prominent was the case of Michael Hutchinson, who was set free after seven years in prison based on evidence developed by the Mercury News, which his trial attorney never explored.
• Clerical mistakes. Two men were released after authorities discovered clerical errors in state records had wrongly connected them to crimes. One, Longino Acero, spent more than a year in custody because officials incorrectly believed he was required to register as a sex offender.
• Judicial errors. Federal judges are considering whether state court rulings that wrongly limited defense evidence at the trials of three different murder defendants warrant overturning the convictions of Timothy Parle, Richard Kolacki and Sonya Daniels.
• Jailhouse informants. Roy Lopez Garcia was released after six years in custody when a jury acquitted him of murder in a case that relied heavily on an informant who had previously been discredited by a federal judge.
• Withheld evidence. Another federal judge is considering whether to grant a new trial to Dung Pham, convicted of murder in 1998, based on the belated disclosure of physical evidence that points to another suspect.
• Eyewitness identification. Kenneth Foley was released after 11 years based on evidence that another man committed the robbery that sent Foley to prison for 25 years to life. The reinvestigation by the district attorney's office was sparked by "Tainted Trials, Stolen Justice.'' Foley's case was one of five plagued by questions about the reliability of eyewitness identification.
Full Story here. . . [Michele Berry]
January 28, 2007
Jurist Guest Luis Moreno-Ocampo Discusses Struggles as International Criminal Court Chief Prosecutor
From the jurist.law.pitt.edu: JURIST Special Guest Columnist Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court at The Hague, says that since he began work in late 2003 his office has already faced and met several key challenges in bringing to justice persons suspected of committing war crimes, genocide and crimes against humanity. Here is the Introduction to his piece:
I took office as Prosecutor of the International Criminal Court in November 2003. As we begin 2007, I would like to take the opportunity to reflect on my office’s achievements and some of the main challenges we have faced.
In the last three years, the Office of the Prosecutor has opened three investigations, collected evidence amidst on-going violence, requested arrest warrants and secured the arrest of a major suspect. In accomplishing these results, the Office had to overcome considerable obstacles. Specifically, I would like to detail the three major challenges the Office has faced in relation to its core activities of investigating and prosecuting crimes under its jurisdiction. Each challenge has necessitated creative thinking and innovative solutions. Read. . . [Mark Godsey]
CrimProf Erlinder discusses Double Jeopardy Fears
From twincities.com: William Mitchell College of Law CrimProf C.Peter Erlinder recently discusses the justification of authorities in a delayed arrest of a a man who admitted to repeatedly striking the 1 month-old child of his fiance when it would not stop crying.
Authorities were worried that if they charged the man with assault, and if he pleaded guilty immediately, and if the baby died afterward, the man might be able to argue against being charged with murder because of the constitutional protection against being tried twice for the same crime, known as double jeopardy.
Actual examples of such legal tactics are uncommon, said CrimProf C. Peter Erlinder. Speaking hypothetically, he said copping a quick plea and then hiding behind double jeopardy isn't as easy as it might sound.
"There's no obligation for the judge to accept a plea, and there's no obligation to accept the plea as a complete resolution to the matter," he said. Rest of Article. . . [Mark Godsey]
CrimProf Barry Mitchell Gives Solution of UK Prison Overcrowding
From yorkshiretoday.co.uk: Coventry University CrimProf Barry Mitchell recently addressed the fact that Prisons in England and Wales are now at bursting point – hovering around their 80,000 capacity – and hundreds of people are being housed overnight in police stations and even court cells.
More young people are being locked up under this Government than ever before.
CrimProf Mitchell believes the solution could come from focusing on community orders and "retributive justice". In other words, making the punishment fit the crime.
He says: "The Government is trying to protect the public from dangerous people, but we cannot keep building more and more institutions to accommodate offenders. It doesn't seem to be a long-term solution because of the reoffending rate, we need to find alternatives."
He says rehabilitation programmes and supervision orders offer a viable alternative, in some cases, to prison. "If you look at reoffending rates, some of the non-custodial sentences are more effective than a custodial sentence.The problem is when it comes to looking at dangerous offenders. Deciding who is dangerous and the risk assessments involved are very difficult. It's not an exact science, even the most able experts cannot produce that kind of certainty."
Rest of Article. . . [Mark Godsey]