Wednesday, February 27, 2008
From NPR.com: Five former insurance executives, including a top official from AIG and a former CEO of insurance giant General Re, were convicted on federal charges Monday. Prosecutors say they schemed to improperly inflate AIG's financial numbers. Listen. . . [Mark Godsey]
From thestate.com: The prison law clerk who convinced the U.S. Supreme Court to hear a fellow inmate's case is being investigated by South Carolina authorities for practicing law without a license, the prisoner's attorney said.
Lawyer Rauch Wise said the state attorney general's office informed him last week they were investigating Michael Ray, a federal inmate in South Carolina.
Ray helped fellow inmate Keith Lavon Burgess appeal his conviction for possession of crack cocaine with the intent to distribute. In the appeal, which the U.S. Supreme Court is scheduled to hear on March 24, Burgess is arguing that a prior drug conviction prosecutors used to get him the 20-year minimum prison sentence shouldn't have applied because it was a misdemeanor instead of a felony.
Conflicting court rulings have required 10-year sentences for people already convicted of misdemeanors, so a successful appeal could trim Burgess' sentence in half.
Ray, who is a member of the American Bar Association and certified paralegal, earns 29 cents an hour for his work but charges no other fees for his services, Wise said.
"If an inmate were charging for services rendered, that would be some grounds to go after the inmate," Wise said. "But when an inmate is in jail, who is trying to prepare his own petition of whatever sort, and he turns to another inmate and says, 'Can you help me with this?' - that just does not offend me."
Someone convicted of practicing law without a license in South Carolina could face up to two years in prison and a $5,000 fine. Rest of Article. . . [Mark Godsey]
Tuesday, February 26, 2008
From miamiherald.com: Two weeks after the Pentagon announced plans to stage death-penalty trials for six Guantánamo captives as alleged Sept. 11 co-conspirators, none of the men has seen a military defense lawyer.
Only one of the six has an assigned lawyer, U.S. Army Lt. Col. Bryan Broyles. But Broyles failed to see his client during a Feb. 13-16 visit to the isolated Navy base.
Lawyer visits will be a key precursor in the Pentagon's bid to put Khalid Sheik Mohammed and five other alleged 9/11 co-conspirators on trial. On Feb. 11, the Pentagon announced plans to simultaneously try the men by military commission -- and to seek to execute them if they are convicted.
But Army Reserves Col. Steve David said so far he had only assigned Broyles to the complex six-defendant case -- to defend Mohammed al Qahtani, a Saudi considered the least valuable captive among the six men.
Broyles blamed the prison camps lawyer, Navy Capt. Patrick McCarthy, for placing obstacles in the path of his bid to meet Qahtani in the company of a civilian lawyer, Wells Dixon, of the Center for Constitutional Rights.
The Army colonel told The Miami Herald he went to the base specifically to meet Qahtani and another Saudi war-court candidate, Ahmed al Darbi, with Dixon -- and was thwarted by the military, not the detainees, on both counts.
In a statement, the prison camps spokesman, Navy Cmdr. Rick Haupt, blamed the conflict on defense lawyers -- describing their failure to comply with prison camp bureaucracy and on scheduling conflicts. But, in the end, Haupt said, the bureaucracy issues were ''moot'' because Darbi and Qahtani refused to meet the military defense lawyer at their assigned time.
A core issue is Broyles' bid to have Dixon join the meetings with the men -- who claim brutal treatment in U.S. custody.
Absent an introduction by the civilian lawyer, Broyles said, the detainee might not believe he is there to help in his defense and instead suspect an interrogation trick.
Qahtani was once known as The 20th Hijacker, suspected of failing to join the 19 other suicide bombers in the 9/11 attacks because he was turned away from entry into the United States at an Orlando airport.
Rest of Article. . . [Mark Godsey]
The Texas Journal on Civil Liberties & Civil Rights will host its annual symposium, “The Roberts Court and the Future of the Fourth Amendment,” on Monday, March 3, 2008. The symposium will address developments in Fourth amendment jurisprudence since the appointment of Chief Justice Roberts, the ramifications of those developments, and what clues those developments may provide as to which direction the Court may take in future.
Beginning with the 2005 term, with the inaugurations of Chief Justice John Roberts and Justice Samuel Alito still fresh, the Court’s newly formed conservative bloc set in motion what promises to be a continuous struggle within the Court for some of the core tenants of the Fourth Amendment. The symposium will explore two aspects of this struggle: the continuing validity and use of the exclusionary rule and the proper balance between personal privacy and autonomy and the State’s competing interest in enforcing the law.
This Symposium will provide an opportunity to better understand the Roberts Court’s Fourth Amendment decisions and the significant impact that they have on the law. It will also provide an opportunity for students interested in pursuing careers in criminal justice or constitutional law to meet lawyers and judges practicing in this area.
The symposium will commence with an address by keynote speaker, Thomas C. Goldstein, at 11:30 a.m. in the Sheffield Room at the University of Texas School of Law. Rest of Article. . . [Mark Godsey]
Monday, February 25, 2008
From clarionledger.com: An attorney for a New York woman charged with manslaughter in the 2003 death of her 3-year-old daughter in Jackson wants the state to review the autopsy findings.
State pathologist Dr. Steven Hayne ruled that the child died of suffocation. Under state law, a petition can be filed with the state medical examiner, asking for further review of an autopsy conclusion.
But Tina Funderburk's attorney, Hinds County Assistant Public Defender Matthew Eichelberger, said that since there is no state medical examiner, his request might be moot.
"This further review is even more important in Tina's case because of the strange manner in which Dr. Hayne reached his conclusion," Eichelberger said.
Hayne reached his decision after a forensic anthropologist at the University of Southern Mississippi said she couldn't determine the cause of death from the remains, Eichelberger said.
Funderburk, 32, is charged with killing Reina Russell. Funderburk told police she left the child in June 2003 in a wooded, swampy area near the old Jackson Greyhound bus terminal on Jefferson Street. She was passing through with her daughter and son on a bus trip from New York.
Funderburk said she lost her way when she went back to get the child. Authorities later found the child's remains.
Hinds County Coroner Sharon Grisham-Stewart asked Hayne to perform an autopsy on the child's remains. Hayne then engaged the services of Dr. Marie Danforth, a forensic anthropologist, to determine the cause of death, according to Eichelberger.
In the petition for further review, Eichelberger said, "Despite the fact that Dr. Danforth could determine neither the cause or manner of death, Dr. Hayne reported to Ms. Grisham-Stewart the cause of death was suffocation."
The petition said Grisham-Stewart accepted Hayne's conclusion without further review or investigation. Hayne said Tuesday he only vaguely remembers the case, but he couldn't discuss it because it was still an open case.
Hayne's work has come under scrutiny in several recent cases. Rest of Article. . . [Mark Godsey]
The justices agreed to hear an appeal by Arizona officials of a ruling declaring such searches unconstitutional when the scene has been secured and the suspect has been handcuffed and placed in the back of a patrol car under police supervision.
The high court's conservative majority in recent years has generally
sided with the police while cutting back on the rights of criminal
suspects in car cases.
The U.S. Constitution protects suspects against unreasonable searches and seizures of evidence.
The Arizona case will require the Supreme Court to reexamine its 1981 ruling that risks to officer safety and the preservation of evidence justify a warrantless car search as part of the arrest.
Arizona officials said the state Supreme Court effectively overruled the 1981 ruling in requiring that the police show that inherent dangers actually existed at the time of the search.
The case began in 1999 when the police in Tucson received a tip of drug activity at a house. Two officers went to the house, and when Rodney Gant answered the door he told them the owner was not home, but would return later in the day.
The officers left, but then discovered Gant had a suspended driver's license and an outstanding warrant for driving on a suspended license. Rest of Article. . . [Mark Godsey]
From NPR.com: A new report finds more convicted sex offenders in California homeless because of a state law restricting where they can live. Tom Tobin, a psychologist specializing in sex offender treatment, talks with Jacki Lyden about the findings. Listen. . . [Mark Godsey]
Yale Law School Ford Foundation CrimProf James Whitman recently wrote "What are the the Origins of Reasonable Doubt?" Here is an excerpt:
As everybody knows, no person in the United States of America can be convicted of a crime unless that person’s guilt is proven “beyond a reasonable doubt.” It would be hard to name a legal doctrine more familiar to the general public. For that matter, it would be hard to name a legal doctrine more basic to the American sense of justice. American criminal law would be unimaginable without the reasonable doubt standard. Indeed, the requirement of proof “beyond a reasonable doubt” is so fundamental that the Supreme Court has read it into our constitutional law, even though the phrase “reasonable doubt” appears nowhere in the Constitution.
But what exactly is proof “beyond a reasonable doubt”? Anyone who has served as a criminal juror knows that the rule is not easy to understand. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal “doubt”? Exactly when are legal “doubts” about the guilt of the accused “reasonable”? Jurors are sometimes understandably baffled. Even the some of the most sophisticated members of the legal profession find the question too difficult to answer.
The result is a troubling situation indeed. Once a jury has determined a person to be guilty “beyond a reasonable doubt,” that person’s fate is almost always sealed. Even the emergence of new evidence, like the evidence of DNA testing, may not be enough to reopen a criminal case. Yet judges and legal scholars have come to the conclusion that the phrase “reasonable doubt” can be assigned no definitive meaning. A moral philosopher might raise disturbing questions indeed about this state of affairs. How you can send somebody to prison, or even to death, on the strength of a rule that nobody understands?
Rest of Article. . . [Mark Godsey]
New Article Spotlight: Regulating the New Regulators: Current Trends in Deferred Prosecution Agreements
From SSRN.com: Peter Spivack and Sujit Raman of Hogan & Hartson LLP recently published Regulating the "New Regulators": Current Trends in Deferred Prosecution Agreements. Here is the abstract:
Deferred prosecution and non-prosecution
agreements are proliferating. Prosecutors and major corporations
entered into twice as many of these agreements between 2002 and 2005 as
in the previous ten years combined; thirty-seven such agreements were
concluded in 2007 alone. As pretrial diversion becomes the standard
means for concluding corporate criminal investigations, it is becoming
increasingly clear that a fundamental shift in the purpose and function
of the criminal law in the corporate context has quietly taken place.
In a post-Enron world, Department of Justice (DOJ) officials appear to
believe that the principal role of corporate criminal enforcement is to
reform corrupt corporate cultures - that is, to effect widespread
structural reform - rather than to indict, to prosecute, and to punish.
By focusing more on prospective questions of corporate governance and
compliance, and less on the retrospective question of the entity's
criminal liability, federal prosecutors have fashioned a new role for
themselves in policing, and supervising, corporate America. They have
become the New Regulators.
Remarkably, this important policy shift has occurred in the absence of any public guidance from DOJ leadership. Even more remarkably, this signficant shift has sparked little discussion in the nation's broader policy discourse - until now.
As Congress actively considers legislation that would direct DOJ leadership to issue appropriate guidance regarding DPAs and NPAs, this Essay provides an introduction to many of the key issues, offers a background history of the rise of corporate pretrial diversion, and explores several of the significant trends that emerged in 2007. While recent legislative interest is focused on the selection and payment of DPA-imposed federal monitors, this Essay suggests that pretrial diversion in fact impacts a range of important legal concepts, including federal-state relations, the separation of powers, and the basic role of the prosecutor.
In light of the considerable inconsistencies in current prosecutorial practice, this Essay argues that DOJ leadership should take appropriate action and issue much-needed guidance. Failing that, DPAs and NPAs may be a ripe and necessary area for legislative intervention. [Mark Godsey]
Thursday, February 21, 2008
The New York Court of Appeals on Tuesday decided People v. Leon, a case raising interesting issues at the intersection of Apprendi and Crawford. At the outset, I should reveal that the defendant was represented by the Center for Appellate Litigation, where I was appellate counsel for five years before entering academia, and also that counsel for defendant, Jonathan Kirshbaum, is a close personal friend of mine. Suffice it to say that my knowledge of the case, and therefore the information contained herein, is limited to what is revealed by the court's decision.
After conviction, the prosecutor sought to prove that Leon was a "persistent violent felon," meaning that he had been convicted of two prior violent felonies. At the persistent felony offender hearing, he contested one of the two prior felony convictions, claiming that it pertained to a different person altogether. In response, the prosecutor put into evidence a report by someone claiming to have compared the fingerprint cards for each of the persons with the two previous convictions, and concluding they were from the same person. Since Leon admitted the earlier conviction, then, the later conviction must be his as well.
This raises an obvious Crawford issue: did the report contain testimonial evidence? In a companion case, the Court of Appeals held that such a fingerprint analysis, when admitted at trial, constitutes testimonial evidence. Ah, but there's the rub. Here, it was admitted only in a sentencing proceeding. It appears to be an open question whether Crawford applies at a sentencing proceeding at which the defendant is entitled to jury findings made beyond a reasonable doubt, a la Apprendi, though I think the better view is that Crawford does apply in that a context.
But the New York Court of Appeals did not need to address that issue, holding that, here, the only contested issue of fact at the hearing pertained to "the fact of a prior conviction," falling within the Almendarez-Torres exception to Apprendi. Which raises the second interesting issue: does the "fact of a prior conviction" exception include the fact that it was the defendant who has that prior conviction? The court said that it does, which makes some sense in isolation: what else could "the fact of a prior conviction" mean other than that this defendant is the one with the prior conviction?
But in a larger sense, this case demonstrates what is wrong with Almendarez-Torres. The "fact of a prior conviction" carve-out is based largely on the notion that, pursuant to that prior adjudication, the defendant has already enjoyed the procedural protections of a jury finding of guilt beyond a reasonable doubt. But this logic breaks down as soon as the question becomes -- and it usually does, if there is ever a dispute -- is this defendant, currently before the court, the same one who previously enjoyed those procedural protections? No jury has ever made that critical finding, and none ever will because of Almendarez-Torres.
This, in addition to the fact that at least five sitting Justices believe the case was wrongly decided, is reason enough for Almendarez-Torres to be overruled [Mike Mannheimer]
Wednesday, February 20, 2008
The Supreme Court yesterday decided in Danforth v. Minnesota that the States may apply new rules of federal constitutional law retroactively even if the Court itself has determined that retroactive application is unnecessary pursuant to Teague v. Lane. The vote was 7-2, with Chief Justice Roberts, joined by Justice Kennedy, dissenting. You can read the decision here.
To my mind, the majority has the better view of Teague as a judicial gloss on the federal habeas statute, rather than as a generalizable aspect of retroactivity. And the Chief Justice's beating of the drums of "uniformity" in dissent strikes me as an example of the faux-federalism often championed by his former boss in criminal cases: alternatively advocating uniformity or diversity, depending on which happened to further the pro-prosecution cause in a particular case.
But what is troubling about the decision is that, in several critical passages, it is highly formalistic, treating the law as an entity that "exists," and positing that the duty of judges is to discover rather than create the law. According to this notion, when the Court decided Crawford, it was simply telling us what the law always was: we just didn't know it. I had thought that this kind of thinking had been buried by Erie's dismissal of the idea that law is some "brooding omnipresence." More to the point, this seems inconsistent with the very notion established by Teague that there are any "new" rules of constitutional law. This reasoning, I think, explains the unusual line-up of Justices Scalia, Thomas, and Alito joining the four more moderate Justices. [Mike Mannheimer]
University of San Francisco Associate Professor Richard Leo's new book examines how American police have developed sophisticated interrogation methods that rely on persuasion, manipulation, and deception to elicit confessions from criminal suspects.
While the idea of a false confession may seem inconceivable, the phenomenon of individuals confessing to crimes they did not commit has become increasingly common in this era of DNA exonerations. But why would an innocent person confess guilt?
Police interrogation techniques often provide the answer, writes University of San Francisco School of Law Associate Professor Richard Leo in his new book, Police Interrogation and American Justice (Harvard University Press, 2008). Hidden from public view and rarely recorded, false confessions are often induced by psychological coercion -- promising the suspect more lenient sentencing, for example -- during an interrogation session characterized by isolation, accusation, confrontation, pressure, and flat-out lies.
"Police can tell a suspect that they have their DNA and fingerprints, even if in fact they have nothing," Leo said. One solution, Leo says, is to mandate the recording of all police interrogations.
Leo's book chronicles more than a century of police interrogation in the United States, from the use of physical torture to the rise psychological manipulation and the lie detector test.
At the turn of the century, police used the so-called third degree. "This is not fiction," Leo said. "The use of rubber hoses and worse on suspects were common methods used to elicit a confession." The use of physical force in police interrogations began to be outlawed by states in the 1930s, a move that would eventually give rise to psychological manipulation as an alternative method to draw out confessions.
Leo's book is based on more than a decade of research, including a significant amount of primary research. He has observed hundreds of police interrogation sessions, attended police interrogation courses and seminars, analyzed police department interrogation manuals, and interviewed dozens of police interrogators and criminal justice officials. [Mark Godsey]
From NYTimes.com: In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.
Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.
The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.
In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.
Rest of Article. . .[Mark Godsey]
Tuesday, February 19, 2008
From latimes.com: The Supreme Court today dismissed the first legal challenge President Bush's warrantless wiretapping order, but without ruling on any of the key issues.Since Congress is now fighting with the White House over new rules for wiretapping, the court may have chosen to stand aside from the controversy.
Lawyers for the American Civil Liberties Union had argued that this dispute went beyond whether the nation's spy agency could intercept international phone calls and e-mails. It raised the question of whether the president must abide by the law, they said.
The Foreign Intelligence Surveillance Act of 1978, a Cold War-era compromise, said the president could order secret wiretapping within the United States, but only with the specific approval of a special court.
But after the terrorist attacks of Sept. 11, 2001, President Bush issued a secret order to the
National Security Agency
that authorized it to intercept phone calls or e-mails coming into or going out of this country if there was a "reasonable basis" to believe there was a link to Al Qaeda. More significantly, the NSA did not need the approval of the FISA court to conduct this spying, according to the order.
When Bush's order was revealed in 2005, the president defended his decision as necessary for protecting against another attack within the United States. He also argued that the president, as commander in chief of the armed services, had the constitutional authority to act in the national interest, even if a law stood in the way.
The ACLU's lawyer urged the courts to take up the issue and rule that the law must be followed. "The president is bound by the laws that Congress enacts. He may disagree with those laws, but he may not disobey them," the ACLU said in the appeal to the Supreme Court. Rest of Article. . . [Mark Godsey]
From washingtonpost.com: Two masterworks that were stolen from a Zurich art museum last week were found in good condition Monday in an unlocked car parked outside a nearby psychiatric hospital, Swiss police said Tuesday. Two other paintings are still missing, they said.
The recovered paintings -- Claude Monet's "Poppies near Vetheuil" (1879) and Vincent van Gogh's "Chestnut in Bloom" (1890) -- were found by a 56-year-old parking lot attendant who contacted police about 4 p.m. Monday. The attendant reported that there was a "suspicious white vehicle with two pictures on the back seat" at the University of Zurich Psychiatric Hospital, police said in a statement.
The two paintings, which Swiss police said have a combined value of about $63 million, were among four stolen on Feb. 10 by three masked men in a brazen daylight robbery at a private villa that houses the E.G. Buehrle Collection, a trove of French Impressionist and post-Impressionist masterpieces.
As a man with a pistol guarded the door and kept fearful employees lying in the ground, the other two grabbed four paintings worth $163 million from a nearby exhibit hall. The three then hauled the paintings to a white car parked outside and sped away.
It was Switzerland's largest-ever art heist. Rest of Article. . . [Mark Godsey]
The U.S. Supreme Court today granted cert. in Herring v. U.S. The question presented in the cert. petition is as follows:
Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.
The cert. petition, courtesy of the SCOTUS blog, can be found here. [Mike Mannheimer]
Monday, February 18, 2008
NPR.com: Director of National Intelligence Mike McConnell says phone companies that cooperated with government eavesdropping programs after the Sept. 11 attacks deserve retroactive immunity from civil rights lawsuits. But is the Bush administration, which is pressing Congress to extend the immunity, simply trying to avoid embarrassing disclosures? Rest of Article. . . [Mark Godsey]
From stuff.co.nz.com: Auckland University CrimProf Warren Brookbanks recently discussed the surge in home detention sentences in New Zealand.
The Criminal Justice Reform Act came into force on October 1 last year and allows judges to sentence offenders directly to home detention.
Between October 15, when the first sentence of home detention was imposed, and February 1 this year, 592 people were sentenced to home detention. This is despite the courts not being fully operational over the Christmas period. Parole Board figures show only 762 prisoners were approved for a similar sentence of home detention in the 12 months to June last year.
Under the old rules the Parole Board was required to interview offenders who were granted leave to apply for home detention by a judge. The Parole Board no longer determines a prisoner's suitability. Judges would act on the same information as the board provided by the Community Probation Service.
CrimProf Brookbanks said the surge in home detention numbers was not surprising."One of the reasons is it's a novel sentence," he said.
"Previously home detention has been tacked onto the end of the prison sentence with the new act it's a sentence in its own right. And I think judges are keen to use it as far as possible to keep people out of jail."
Brookbanks said the trend would put pressure on the Community Probation Service and "could lead to some difficulties in terms of overseeing the vast numbers". Rest of Article. . . [Mark Godsey]