February 10, 2007
New Article Spotlight: Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States
From SSRN.com: SSRN recently published CUNY School of Law CrimProf Jeffrey L. Kirchmeier's article "Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States." Here is the abstract:
During the last decade, judges, politicians, scholars, and the general public have become troubled about problems with the death penalty in the United States. Also during this time, major studies of the death penalty have recommended a reduction in the number of statutory factors that make one eligible for the death penalty. Despite these concerns, legislatures continue to expand their capital punishment statutes to make more defendants eligible for the death penalty.
This Article examines how, during a time of growing concern about innocence and arbitrariness in the death penalty system, a number of legislatures have continued to expand their death penalty statutes, often in inadequate attempts to address other legitimate societal concerns. The ultimate impact of such an ever-expanding death penalty is that almost all murders become eligible for the death penalty, a result that is inconsistent with the Eighth Amendment.
The Article begins in Part One by giving a brief overview of the role of statutory eligibility factors in capital cases. This Part also discusses several recent studies that recommend that legislatures should be eliminating aggravating factors, not adding them. In Part Two, the Article lists and categorizes the large number of new eligibility factors that legislatures have added since 1995. In Part Three, the Article discusses some of the reasons for the new factors, and it considers the implications of the expanding death penalty statutes.
The Article discusses the inconsistencies between the recommendations to eliminate aggravating factors and the actual practice of adding aggravating factors. The Article concludes that although legislatures have slowed down their expansions of the death penalty in the last few years, many states have broader death penalty statutes than they had a decade ago. These ongoing expansions raise constitutional issues and have been an ineffective response to legitimate political concerns. Another article by the author compiles older capital eligibility and aggravating factors. [Mark Godsey]
February 9, 2007
CrimProf Spotlight: Pamela Bucy
This week the CrimProf Blog spotlights The University of Alabama School of Law CrimProf Pamela Bucy.
Professor Bucy received her B.A. degree in 1975 from Austin College and her J.D. in 1978 from Washington University School of Law, where she was elected to the Order of the Coif. Upon graduation from law school, Professor Bucy served as law clerk to the Honorable Theodore McMillian of the United States Court of Appeals for the Eighth Circuit.
From 1980 through May 1987, Professor Bucy was an assistant United States attorney for the Eastern District of Missouri. She served in the Criminal Division, specializing in prosecutions of white-collar criminal fraud. She established and served as coordinator of the Health Care Fraud Task Force for the Eastern District of Missouri. While with the U.S. Department of Justice, Professor Bucy served as an instructor of the appellate advocacy course in the U.S. Department of Justice Attorney GeneralÕs Advocacy Institute.
Her books include White Collar Crime, Cases and Materials (West 2nd ed. 1998), Health Care Fraud (Law Journal Seminars Press 1996), and Federal Criminal Law (with Abrams, Beale, and Welling 1998). Professor Bucy teaches Criminal Law, Criminal Procedure, and White-Collar Crime and publishes in the areas of white-collar crime and health care fraud. [Mark Godsey]
February 8, 2007
Emory Law School Indigent Criminal Defense Clinic Won its First Case
After four separate trial settings and two trials, the verdict was read, and the defendant was found not guilty on all six counts. It was a big win for the defendant, and for his three trial lawyers – all Emory Law students participating in the Indigent Criminal Defense Clinic (ICDC). This marked the ICDC’s first trial and first victory.
“A tremendous amount of hard work went into this case,” said Deirdre O’Connor, ICDC Director. “I could not be more proud of the three trial lawyers and the amount of dedication and commitment they demonstrated.”
Dan Zytnick, Nate Barnes and Sarah Pentz were assigned the case because of their participation in the ICDC, which began last fall. The clinic receives cases from DeKalb County and as director, O’Connor selects cases based on the likelihood of a trial or motion work.
"This was a phenomenal experience for us – having our own client and battling to keep him out of jail," Zytnick said. "The case was demanding and difficult, but we were especially motivated because we strongly believed that our client was innocent. A guilty verdict would have been an injustice."
As part of the clinic, third year students assume the role of lead attorney, second chair and investigator on three different cases. The director provides in-depth daily supervision on each case during the preparation stage, with the goal of allowing greater student attorney autonomy and decision-making when appearing in court on the record.
“I anticipated that many students would be drawn to the clinic primarily to obtain some litigation experience while in law school,” O’Connor said. “What I hope they take away from their participation is a better understanding and appreciation for the role of a criminal defense lawyer and the unique vulnerabilities of an indigent criminal defendant. I also want the students to realize what is involved in being a zealous advocate and how much the lawyer’s commitment to a client’s case will affect the outcome.”
O’Connor has structured the clinic to promote a team environment. The support and encouragement that Zytnick, Pentz and Barnes received played a vital role in their win. Fellow ICDC students, without hesitation, regularly met with the trial lawyers to go through practice runs and allow them to rehearse their opening and closing remarks.
“The opportunity to represent a client, fully prepare his case and conduct a trial on his behalf was an incredible learning experience,” Zytnick said. “All the difficulties we encountered helped us to be become better prepared and gain experience that we could not have received in the classroom setting.” Rest of Article. . . [Mark Godsey]
Former Prisoner Caught Inpersonating an Officer
From newsday.com: He called himself "Sergeant Terry" and didn't hesitate to bring suspects back to the Hempstead office he rented and outfitted to look like a police unit. He filed incident reports and logbooks, so meticulously documenting his activities that he once copied the five $20 bills one "offender" paid as a fine in exchange for a criminal reprieve, law enforcement officials and neighbors said.
To the dozens of motorists and petty criminals he pulled over throughout Long Island and New York City, Henry Terry had all the makings of a police officer -- a blue uniform, handgun in a leather holster, flashing lights on his dashboard, and a dangling identification badge, prosecutors said.
But Wednesday, Suffolk County District Attorney Thomas Spota said the real criminal was none other than Terry himself. The badges and uniforms Terry flaunted were replicas that he had purchased off the Internet, Spota said. And Terry's only lessons in law enforcement came from behind bars.
Terry served time for first-degree reckless endangerment in 2002 and was arrested again in 2004, when Nassau County charged him with second-degree criminal impersonation for posing as a public servant. He pleaded guilty and was sentenced in August 2004 to 11/3 to 4 years in prison. He was released on parole that December.
Spota said his office is still investigating exactly when Terry's antics began, but that he could have started pulling victims over soon after his release on parole in December 2004.
Rest of Article. . . [Mark Godsey]
AZ is Part of Prison Study to Prevent Overpopulation
From azcentral.com: Facing burgeoning prison growth that will cost taxpayers billions over the next decade, Arizona has been selected to take part in a multimillion-dollar research project examining crime and prison trends and developing possible policy solutions.
The Council of State Governments' Justice Center announced Tuesday that Arizona was one of five states selected as part of the new initiative that will look for ways to curb prison population growth projected to be as high as 50 percent over the next decade. A new analysis unveiled to launch the research project shows that left unchecked, growth could cost taxpayers and additional $3 billion over the next decade. That's on top of a corrections budget that is approaching nearly $1 billion per year.
The Justice Reinvestment project, funded by the Pew Charitable Trusts and the U.S. Department of Justice, plans to release a detailed report on crime and prison trends and policy options for Arizona next month. The hope is that the report could help state officials find ways to address the root cause of crime and invest money in the most fruitful ways.
"There should be a discussion on what does the data show that will have the biggest impact on crime in the state," said James Austin, of the JFA Institute, a researcher for the project. "That's something that Republicans and Democrats agree we need to do before just doing more of the same." Rest of Article. . . [Mark Godsey]
February 7, 2007
States are Attempting to Expand the Death Penalty
From USATODAY.com: At least a half-dozen states are considering broadening the death penalty, countering a national trend toward scaling back its use.
Lawmakers have proposed legislation that would increase the range of crimes eligible for execution. In Texas and Tennessee, for example, legislators want to include certain child molesters who did not murder their victims.
"The hope is that these monsters will see that Texas is serious about protecting children," says Rich Parsons, spokesman for Lt. Gov. David Dewhurst. Dewhurst, a Republican, is working with state senators to draft legislation that would make repeat offenders subject to capital punishment in some cases. "If they understand they could face the ultimate punishment, " they might "think twice," Parsons says.
Virginia is considering bills that would make accomplices to murder, as well as killers of judges and court witnesses, eligible for the death penalty.
"I'm a believer in the deterrent effect of the death penalty," says Republican Delegate Todd Gilbert, a state prosecutor who sponsored two of the measures. "I know a number of states are reconsidering their position on the death penalty. … I feel confident Virginia's system is set up to work."
Lawmakers or courts have temporarily halted all executions in 11 states in the past year, most of them over concerns that lethal injection is cruel and unusual punishment, says Richard Dieter of the Death Penalty Information Center, which he says takes no position on the death penalty but has been critical of how it is applied. Rest of Article. . . [Mark Godsey]
Astronaut Attempts New Mission: Murder and Kidnapping
From NPR.com: In what NASA is calling a bizarre and sad story, an astronaut is being accused of attempted kidnapping and murder.
Police say that Lisa Nowak planned to kidnap and kill someone she considered a romantic rival for the affection of another astronaut.
Nowak, 43, is a married mother of three. She has been an astronaut for more than a decade. Her first space flight took place last summer, when she blasted off into space on the Fourth of July.
After the charge of attempted murder was added to the accusations against Nowak, the judge in the case raised her bail to $25,000. The case is unprecedented in the history of the space agency's elite astronaut corps. Listen. . . [Mark Godsey]
CrimProf Henning Discussed Possible Insanity Defense for the Mother Who Butchered Her Children
From macombdaily.com: Wayne State University School of Law CrimProf Peter Henning recently discussed the inevitable question about the Macomb Township, Michigan woman using butcher knives to kill her two young daughters: How could she do it? How can a mother who brought these innocent beings into the world be the one charged with their slayings?
CrimProf Peter Henning said cases like this one with "very aberrational violence" without a clear motive are ripe for an insanity defense by most attorneys.
"There is always a chance that she might try to argue she didn't do it. But if police have the person in custody who committed the crimes according to the evidence, then insanity is a logical defense to try and explore," he said.
Michigan law defines sanity as a defendant's ability to understand right and wrong at the time of the crime and to control his own behavior. That differs from competency for trial, which is simply the ability to understand the charges against him and assist his attorney in preparing a defense.
Rest of Article. . . [Mark Godsey]
February 6, 2007
Georgia Changes Photo Line-up Procedures in Response to Wrongly Convicted Man's Exoneration
From csmonitor.com: More than two decades ago, a sexual-assault victim from Sandy Springs, Ga., pointed to a picture of her attacker in a photo lineup. "From zero to 100 percent, how sure are you?" a detective asked. "I'm 120 percent sure," the woman said, as stated in court testimony.
It now appears that she was 100 percent wrong, according to the Fulton County district attorney. The result of DNA testing led to the release of Willie "Pete" Williams on Jan. 23 after nearly 22 years in a south Georgia prison for a crime he did not commit. Her mistake and his exoneration have revived a debate about the accuracy of eyewitness identifications – and their central role in persuading juries to convict.
But even as a handful of police departments from Boston to Minneapolis have voluntarily changed lineup procedures to help reduce such tragic errors, resistance to top-down reform from the majority of American police chiefs and prosecutors is pushing the debate into the legislative chamber. Last week, Georgia introduced a bill that would scrap the side-by-side police lineup, and would instead require police departments to present suspects one by one – either in person or by photo. Georgia joins Texas, New Mexico, West Virginia, and Vermont, which have similar bills pending.
Some experts argue that the new procedure limits inaccurate "relative judgments" that victims can make during a lineup. But police counter that they do not want to be forced to use a specific procedure that they say would undermine proven techniques detectives use.
"You can start to see a move now in policymaking and the decisions that prosecutors are making about how they elicit evidence," says Professor Christian Meissner, director of the Investigative Interviewing Research Laboratory at the University of Texas at El Paso. "The involvement of legislatures is an attempt to get prosecutors to realize that these are real issues that need to be addressed."
Since 1992, 194 people have been exonerated on the basis of DNA evidence, and some 75 percent of the convictions involved at least one faulty eyewitness identification, according to the Innocence Project, which works to clear those who are falsely imprisoned. A separate study published by the University of Michigan in 2004 found that 90 percent of mistakes that led to false convictions in rape cases were caused by eyewitness errors. Rest of Article. . . [Mark Godsey]
Black Teens Charged With a Hate Crime Sentenced to Probation
From NPR.com: Four sentences of house arrest and probation are handed down in the Long Beach, Calif., hate-crime trial of 10 black teenagers, as the judge in the case continues to deviate from prosecutors' recommendations. The victims, three white women who were attacked on Halloween, were visibly upset at the sentencing hearing.
Prosecutors had sought more severe punishment for three of the girls, including time in the California Youth Authority system.
In ordering community service, house arrest, probation and counseling for the youths, Judge Gibson Lee duplicated the sentences he delivered Friday — an unusual step in a case in which some of those convicted are believed to have played more aggressive, and violent, roles than others.
All but one of the teens — 8 females and 1 male — were convicted of assault in a non-jury trial. A 12-year-old was acquitted. Listen. . . [Mark Godsey]
Aqua Teen Pranksters Videotaped a Police Bomb Squad Removingthe Advertisement
From freep.com: One of the men criminally charged after placing blinking cartoon advertisements around the city videotaped a police bomb squad removing one of the electronic devices, but did not tell the officers the object was harmless.
Surveillance cameras caught 27-year-old Peter Berdovsky videotaping officers removing what they thought was a possible bomb. His lawyer, Walter Prince, said Tuesday: “Mr. Berdovsky didn’t do anything inappropriate.”
Prince said Berdovsky had received a call that morning from a friend who told him there was a bomb threat at the Sullivan Square transit station in Boston. He said Berdovsky grabbed his camera and headed out to the scene, unaware it involved one of the electronic devices that he and Sean Stevens, 28, had hung as part of a guerrilla advertising campaign for Turner Broadcasting, a division of Time Warner Inc.
“That’s what he does. He videotapes things. He’s a videotape freelance artist. He got a call that there was a bomb threat near his house and he went to tape it,” Prince said. “When he got there, he realized what was going on, and he went back to his apartment and called his employer, and they told him they would take care of it. That’s not an inappropriate response.”
Turner Broadcasting has agreed to pay $2 million to cover costs and restitution for the massive police response on Jan. 31 that shut down highways and bridges and snarled traffic.
More than three dozen of the devices advertising the “Aqua Teen Hunger Force” cartoon were found in the city.
A spokeswoman for Attorney General Martha Coakley, who is prosecuting Berdovsky and Stevens on charges of placing a hoax device and disorderly conduct, declined to comment on the incident, citing the ongoing criminal case. Berdovsky and Stevens have pleaded not guilty to the charges. Their next court date is March 7. Rest of Article. . . [Mark Godsey]
February 5, 2007
Making Snatching of DNA From the Arrested or Detained Legal
From NPR.com: The Justice Department is completing rules that will allow federal authorities to collect DNA samples from most people arrested or detained. The law is likely to affect hundreds of thousands of illegal immigrants. Leslye Orloff of the Immigrant Women Program at Legal Momentum talks with Madeleine Brand. Listen. . . [Mark Godsey]
Case Western International CrimProf and Others Asked to Participate in Updating Armed Conflict Rules
The goals of the research are to draft a set of updates to the rules of armed conflict, to suggest policies that can inform successful strategies and tactics for combating terrorism, and to consider the human rights dimensions of the purposeful use of non-combatants as a shield and civilian areas as safe sanctuary. The recommended updates will serve as a basis for nations to bring about needed changes in the laws of war.
Recent conflicts underscore the continuing shortcomings of international law and policy in responding to asymmetric warfare mounted by non-state terrorist groups in the 21st century. Neither The Hague Rules, the customary law of war, nor the post-1949 law of armed conflict and accompanying international humanitarian law, account for non-state groups waging prolonged campaigns of terrorism - and, in some cases, more conventional military attacks - that leave the defending state with little choice but to respond in ways that inflict heavy civilian casualties.
The invitation recognizes the strength of the global legal curriculum at the School of Law and the expertise of the professors who will be asked to serve on a team of international experts reviewing and discussing case studies and lessons learned developed by teams of military officers and military lawyers from Israel and the United States. Following that review, the professors will participate in a working session in Israel this summer to develop proposals for reform or new protocols to the laws of war. he effort will culminate in a conference in Washington D.C., where the Case team will participate in paper presentations and will engage in discussion with other experts regarding the future of the rules and policies for armed conflict. Following work will include the preparation of a book and an outreach effort to engage nations and other key bodies about the work of the group and their recommendations. Rest of Article. . . [Mark Godsey]
CrimProf Robert Batey Discusses Judge Recusing Himself in Murder Case
From TBO.com: Stetson University College of Law CrimProf Robert Batey recently commented on Florida child-murder case where the Prosecutors asked a judge to step down after he told them they'd probably lose at trial and suggested they offer the defendant probation.
Circuit Judge Robert Foster also had suggested to attorneys that the child's mother was a more likely suspect. Foster complied with the prosecution's request and recused himself.
Chadrick Toto Thomas, who faces murder and aggravated child abuse charges in the death of his girlfriend's 6-month-old son, now will appear before Circuit Judge Mark Wolfe.
But Foster is not alone in his skepticism about the case. Documents released last year by the Department of Children and Families also suggest the infant's mother as a suspect in his death. Thomas' attorney Rick Terrana said evidence is growing that his client is not guilty.
When CrimProf Batey was asked about the case, he said the judge's statements were not necessarily improper or biased, but it isn't surprising prosecutors asked him to step down."It's hard for judges, who are human beings like the rest of us, to restrain themselves," said Batey
"The Florida courts discourage trial court judges from engaging in that sort of behavior, but it's pretty much common knowledge that it happens relatively frequently."On the other hand, Batey said, prosecutors should consider the judge's skepticism about their case.
Rest of Article. . . [Mark Godsey]
February 4, 2007
Stealing a Kiss is Literally a Crime in Israel
From haaretz.com: Israeli CrimProf Yoram Rabin recently discussed the Israeli law that makes forced kissing of a unconsenting woman an illegal act.
"There is no doubt that a forcible kiss could be an indecent act," said Dr. Yoram Rabin. "This article is intended to protect a person, usually a woman, form having her body used for sexual purposes against her will. I have fears about criminalizing courtship practices, but the danger is not the indecent acts article, but the flawed law against sexual harassment and the prosecution's problematic policy of indicting in borderline cases."
The courts have convicted dozens of defendants of indecent acts for having forcibly kissed women. In most cases, however, the act was accompanied by other, sometimes graver, sexual assaults.
For example, Haim Hamiel, husband, father and grandfather, invited his neighbor to his apartment on August 22, 2001, ostensibly to see his new furniture and help him cook. After she entered, he held her face and tried to kiss her. She fled from his apartment.
Hamiel denied the kiss, saying he embraced her because she stumbled over a table and almost fell. He said that his conduct was devoid of any sexual connotations. But the Tel Aviv Magistrate's Court believed the complainant and convicted him, giving him a three-month suspended sentence and ordering him to pay the complainant NIS 1,000 in compensation. Rest of Article. . . [Mark Godsey]
CrimProf Jimmy Gurule Comments on Manhole Murders
From southbendtribune.com: University of Notre Dame International CrimProf Jimmy Gurule rececently commented on the uniqueness of the unsolved manhole case in which Jason Coates, 29; Michael S. Nolen Jr., 40; Michael Lawson, 53; and Brian G. Talboom, 51, were all killedin what now have been labeld homicides.
Murders, according to CrimProf Jimmy Gurule, primarily are committed at the hands of close acquaintances or in the heat of the moment.
"It's very uncommon," Gurule said of the manhole case. "These killings do not fit the typical pattern (of homicide)."
About one-third of all homicide assailants are acquaintances, according to data from the Bureau of Justice statistics. Spouses and family members make up about 15 percent of victims nationwide, the report says. Rest of Article. . . [Mark Godsey]
Courts Scrutinize Failure to Appear as Bargaining Chip
From nytimes.com: Some call the “failure to appear” charge a prosecutor’s best friend because it is relatively easy to prove and can swiftly bring a defendant to the bargaining table. Others see the long-accepted but little-discussed practice of punishing late or absentee defendants as a crutch for overworked judges to maintain decorum and keep criminal cases from clogging their courtrooms.
Now such criminal charges are being challenged in Connecticut, where nearly 1 in 10 of the cases not involving motor vehicles that ended in convictions over the past five years included a conviction for failure to appear. Those found guilty of what could be a procedural misstep can face up to five years in prison.
Bringing the issue into the open is the case of Ayanna Khadijah, 34, who was convicted of the felony version of failure to appear after she failed to wake up from a nap and arrived 45 minutes late to court one day in August 2003. Her case is extraordinary because she fought back.
It was the only court date Ms. Khadijah missed among 45 sessions over three years defending herself against a set of drug charges that were eventually dismissed, in 2005. Ms. Khadijah, a single mother with a criminal history, received a suspended three-year sentence on the failure-to-appear charge. Rest of Article. . . [Mark Godsey and hat tip from Laura Appleman]