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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, March 6, 2008

Police Investigate Bomb in Times Square

NYTimes.com: A small bomb caused minor damage to an empty military recruiting station in Times Square early today, shaking guests in hotel rooms high above "the crossroads of the world."

The blast, which happened around 3:45 a.m., left a gaping hole in the front window and shattered a glass door, twisting and blackening its metal frame. No one was hurt. But Police Commissioner Raymond Kelly said the device, though unsophisticated, could have caused "injury and even death."

A witness saw a person on a bicycle wearing a backpack and a hood and acting suspiciously, but no one saw the device being placed in front of the recruiting center, authorities said at a news conference.

"If it is something that's directed toward American troops then it's something that's taken very seriously and is pretty unfortunate," said Army Capt. Charlie Jaquillard, who is the commander of Army recruiting in Manhattan. Rest of Article. . . [Mark Godsey]

March 6, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Bigger Ballistics Database Shot Down

From NPR.com: In recent years, some lawmakers and gun control groups have pushed for a national database that would record the ballistics signature of every gun sold in the United States. But a new report from a prestigious scientific panel says it's probably not a good idea.

The series of deadly sniper shootings in the Washington, D.C., area in October 2002 inspired some lawmakers to start thinking about a national database.

By comparing bullets taken from the victims, investigators knew that the shootings were linked. But to what gun? Whose gun? Police couldn't tell. The federal government does have a database of markings on bullets that police can search, but it includes only guns that have been already used in a crime.

That led some lawmakers to wonder whether the unique markings left by all guns should be recorded — whether the guns should be fired and their ballistic signatures noted before they were sold. That way, if the guns were ever used in crimes, investigators could trace them.

But it wasn't clear if the technology was ready. So the Department of Justice took the problem to the National Research Council, which gives the government independent advice on science issues. A panel spent four years looking at the idea.

The panel's verdict? "At this time, it really is not feasible," says John Rolph, who chaired the panel. Rolph is a statistician from the University of Southern California. Listen. . . [Mark Godsey]

March 6, 2008 in Evidence | Permalink | Comments (0) | TrackBack (0)

More on Arizona v. Gant and the Other Footnote Four

Last week, the Supreme Court granted cert. in Arizona v. Gant.  The case will require the Court to consider whether the police need any level of suspicion to think the passenger compartment of a car contains a dangerous weapon or concealible or destructible evidence before searching the passenger compartment of the car after having arrested and secured its recent occupant.  That is, the case gives the Court the opportunity to reaffirm, extend, reconfigure, or disavow the Belton rule.  Belton seems to allow such a search even after the arrestee has been subdued, and the majority of lower courts have interpreted it in that way.  This application is in some tension with the underlying rationale of the rule, that a recent occupant can gain access to the passenger compartment to conceal or destroy evidence of the crime of arrest, or obtain a weapon to harm the officer.  On the other hand, it makes some sense given that the Belton Court sought to draw a bright line, allowing the police "safe harbor" (to use Susan Klein's term) within which to exercise authority in ambiguous situations free of claims of constitutional wrongdoing.

Prospects for the continuing validity of Belton appear shaky.  The last time the Court addressed a Belton issue was in the 2004 case of Thornton v. U.S.  There, the Court extended the Belton rule to cover an arrestee who first makes contact with the police after he has exited the vehicle.  However, in a critical opinion concurring only in the judgment, Justice Scalia, joined by Justice Ginsburg, wrote that when an arrestee is safely in custody, a Belton search is justified only where it is reasonable to believe that evidence of the crime of arrest will be found.  Footnote four of the main opinion declined to take a position on the merits of Justice Scalia's novel argument because it had not been raised by the petitioner at any stage of the proceedings, providing insufficient reason to reconsider Belton "at this time."  In a strong symbolic gesture, Justice O'Connor refused even to join footnote four, rendering that footnote a plurality opinion, written by the Chief Justice and joined by Justices Kennedy, Thomas, and Breyer.  Justice O'Connor opined that Belton is built on a "shaky foundation" and that "the approach Justice Scalia proposes appears to be built on firmer ground."  Justice Stevens, in an opinion also joined by Justice Souter, dissented because he did not think Belton should apply when, as in Thornton, the police first make contact with the arrestee when he is outside the vehicle.

Gant may the case the Court uses to dispose of Belton once and for all and replace it with something along the lines of what Justice Scalia has proposed.  Given Justice Stevens' and Souter's apparent distaste for Belton, and absent the Thornton question of whether Belton applies to a "recent occupant," one or both may want to embrace this reformulated approach.  While the new Chief's and Justice Alito's positions are unknown, there is no reason to think they are wedded to the deeply flawed Belton, except for their respect for stare decisis.  This might resonate to a greater extent with the Chief than with Justice Alito, but notice how Justice Scalia's position allows the Justices to claim that they are simply re-tooling Belton, not getting rid of it entirely.  Assuming he is in the majority, the Chief might be able to craft a carefully-worded opinion, or give the job to someone else, without using the dreaded word "overruled."  And even one or more of the three remaining members of the Thornton plurality might be persuaded to join, given footnote four's half-hearted embrace of Belton, coupled with the O'Connor nostalgia that seems to be an undercurrent in some recent opinions (Danforth v. Minnesota, for one).

More generally, I would suggest that the Belton experience highlights the defects of so-called "bright-line" rules.  In many instances when the Court creates a cright-line rule, it simply generates litigation on when that rule applies.  That is, a bright-line rule doesn't necessarily obviate the need for case-by-case adjudication; it often just moves it to another step in the process.  Think of Justice White's prescient prediction in his Miranda dissent that the Court would soon become mired in defining "custody," "interrogation," "waiver," etc.  Each of these questions can be answered only by applying a very fact-intensive test on a case-by-case basis.  On the other hand, a bright-line rule like that suggested by Justice White in his Payton dissent -- no warrant is ever needed to arrest -- does not present these problems but may lack fidelity to the Constitution.  That is not to say that Payton was correctly decided, but only to suggest that desire for a bright-line rule can never be the sole basis for a decision. [Mike Mannheimer]

March 6, 2008 in Search and Seizure | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2008

Teachers Aide Sentenced to 6 Months For Stealing An Autistic Girl's Lunch Money

From latimes.com: A teacher's assistant was sentenced to six months in jail this week for stealing lunch money from a disabled student at Camarillo High School.

Kristen Rene Santoyo, 37, was also given four years probation during a hearing Tuesday before Ventura County Superior Court Judge James Cloninger. In addition, Santoyo was ordered to pay $285 restitution to the student and to attend at least one year of weekly child abuse counseling sessions.

The victim, a 14-year-old high school freshman who suffers from severe autism and cannot speak, was sent to school with a lunch box that had snacks and $5 to purchase a cafeteria meal, prosecutors said. After she came home from school hungry and went straight to the refrigerator multiple times, her parents grew suspicious and contacted the school principal and teacher.

School officials then alerted police, who conducted a three-day investigation using a hidden camera that showed Santoyo on two occasions stealing the student's lunch money from her backpack. Santoyo was charged with stealing the victim's lunch money on 57 separate occasions between September and November, when she was caught and the complaint was filed, authorities said.

"The whole thing is pretty hard to put into words," said Shawn Spitzer, the victim's mother. "We trusted this caregiver, the assistant teacher, with our child, the most precious thing we have, and she violated that trust day after day by victimizing her. And this was a victim that couldn't speak, that couldn't tell anybody she was hungry or that her teacher was stealing from her." Rest of Article. . . [Mark Godsey]

March 5, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Arizona Considers Allowing Guns On Campus

From nytimes.com:   Horrified by recent campus shootings, a state lawmaker here has come up with a proposal in keeping with the Taurus .22-caliber pistol tucked in her purse: Get more guns on campus.

The lawmaker, State Senator Karen S. Johnson, has sponsored a bill, which the Senate Judiciary Committee approved last week, that would allow people with a concealed weapons permit — limited to those 21 and older here — to carry their firearms at public colleges and universities. Concealed weapons are generally not permitted at most public establishments, including colleges.

Ms. Johnson, a Republican from Mesa, said she believed that the recent carnage at Northern Illinois University could have been prevented or limited if an armed student or professor had intercepted the gunman. The police, she said, respond too slowly to such incidents and, besides, who better than the people staring down the barrel to take action?

She initially wanted her bill to cover all public schools, kindergarten and up, but other lawmakers convinced her it stood a better chance of passing if it were limited to higher education.

“I feel like our kindergartners are sitting there like sitting ducks,” Ms. Johnson said last week when the bill passed the committee by a 4-to-3 vote. Rest of Article. . . [Mark Godsey]

March 5, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2008

The Key Prosecution Witness is Dead. Can The Prosecutor Negotiate A Plea?

I got into a very interesting discussion last night at the Morris K. Udall American Inn of Court meeting, taking the position, as a legal and disciplinary matter, that the death of an indispensable prosecution witness did not preclude a prosecutor from negotiating a plea, even without first disclosing that the witness has become unavailable.  The leading case is the unanimous People v. Jones, 375 N.E.2d 41(N.Y.), cert. denied, 439 U.S. 846 (1978), which begins: "We hold that defendant was not denied due process when the District Attorney's office did not disclose during plea negotiations that it had received information that the complaining witness had died.Brady does not apply: death of a witness was not "exculpatory evidence i.e., evidence favorable to an accused where the evidence is material either to guilt or to punishment."  In addition, the court found no cases faulting "the failure of a prosecutor before trial or during plea negotiations to disclose nonevidentiary information pertinent to the tactical aspects of a defendant's determination not to proceed to trial."  Does anyone know of any cases to the contrary?  I found none.

So if there is no defect in the judgment of conviction, is there at least an ethical impropriety?  Surely a prosecutor should unilaterally dismiss a prosecution if there is insufficient admissible evidence to proceed to trial, if the prosecutor knows that without a plea dismissal is the only option.  But under positive law ethical rules, this is not so. Arizona Ethical Rule 3.8(a), like the ABA Model, provides
that a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."  There is no greater evidentiary requirement.

If the ethical rules do not require dismissal, how about the more aspirational ABA Criminal Justice Standards, Prosecution Function, which offer many "shoulds," indicating good practice, beyond the "musts" of the disciplinary rules? In addition to requiring probable cause, Standard 3-3.9(a) provides: "A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction."  This might be read to suggest that a prosecutor should unilaterally dismiss when the key witness dies. But the Official Comments reject this interpretation: "This Standard takes no position on this question."

Of course, a prosecutor cannot make false or misleading statements, or violate other rules.  For example, Arizona Ethics Opinion 94-07 holds that it is unethical to negotiate a plea with if the prosecution's material discovery obligations are unfulfilled, so a witness list must be updated to show that the key witness will not be called.  But in the bustle of fast pleas and form pleadings in in a misdemeanor court, it is easy to imagine that accurate disclosure would not be closely examined in the face of a sweet plea.

At first, I thought that even if non-disclosure was legal and would not subject a prosecutor to discipline, it was bad practice, because other lawyers in the community would feel deceived.  But then I wondered whether it was appropriate to protect a lawyer's own reputation at the expense of potentially convicting a dangerous felon.   Maybe it is not unjust if a plea offer unaccompanied by factual misrepresentations or discovery violations leads a defendant with a lawyer, in open court, to truthfully admit their criminal offense and take responsibility for it.  What am I missing?

Jack Chin

March 4, 2008 in Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2008

CrimProf Daniel Medwed Inspired Former Student Who Drafted Exoneration Bill

Med A recently-passed Utah statute that provides compensation for prisoners who have been wrongfully convicted and exonerated had its origin in an academic paper by a former S.J. Quinney College of Law student.

Heather Harris, a 2006 College of Law graduate, took Professor Daniel Medwed's Wrongful Conviction Seminar in the Spring of 2005.

"Throughout the class, I got inspired, I got angry, and honestly, I got emotional," Harris says. "I could not believe how these individuals are treated by the public after they were exonerated, much less how they were treated while trying to prove their innocence.  So, to be blunt, rather than just talking about it and whining about it, I decided to see if I could do my part in trying to change it."

Along with her term paper for the seminar, Harris drafted a model exoneration statute, which she later sent to every Utah legislator.  Harris's persistence captured the attention of legislators, who pushed the bill during the 2006 Legislative Session.

As with new ideas, though, the notion of compensating the wrongfully-convicted took time to gain traction. In the interim, Harris refined the proposal with Medwed, a team from the Utah Attorney General's Office and others. The group found that the most compelling case for compensation was economic; exonerees in other states have won far larger judgments using traditional tort claims. So the statute serves Utah as an "insurance" policy against massive damage awards, Harris said.

The Exoneration and Innocence Assistance statute provides a two-step procedure. First, it establishes a process for post-conviction petitions before judges, easing what had often been an impediment.  Second, those found to be "factually innocent" by clear and convincing evidence --- such as DNA test results or non-DNA evidence, a major innovation in such compensation laws --- are provided financial payment for up to 15 years of the incarceration, based on the average annual wages of Utah workers.

[Mark Godsey]

March 3, 2008 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Widener Law School Hosts the First CrimTorts Conference

About 75 people gathered on Widener’s Harrisburg campus Monday, Feb. 25 for the first national conference on “Crimtorts,” the expanding middle ground between criminal and tort law.

A host of distinguished academics and legal experts explored the novel concept, including Professors Thomas H. Koenig and Michael L. Rustad, the men who coined the Crimtorts term. Crimtorts represents the blurring line between tort law and the criminal law principles of punishment and deterrence.

“There has been a defacto crimtort regime enacted in the states,” said Rustad, the Thomas F. Lambert Jr. Professor of Law and Co-Director of Intellectual Property Concentration at Suffolk University School of Law in Boston. [Mark Godsey]

March 3, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Crack Convicts Could Be Released

From cnn.com: New sentencing guidelines were expected to lead Monday to the early release of more than a dozen federal inmates convicted on crack-cocaine charges.

Approximately 1,600 federal inmates are currently eligible to ask a court to reduce their sentences because of December's decision by a federal agency to make retroactive reduced sentences for some crack-cocaine related convictions.

The decision was based on the stark difference in terms handed out for crack convictions versus those convicted on charges for powder cocaine.

Judges could reduce sentences for nearly 20,000 inmates following the decision by the U.S. Sentencing Commission -- an independent federal agency that advises all three branches of government on sentences. Advocates of the sentence reduction say it is only fair, but the Justice Department counters and says that the move will allow dangerous criminals back on the street.

The Justice Department is concerned "that so many people would be released all at once -- people who have shown that they are repeat offenders, and without the possibility of any kind of transition or re-entry program to bring them from prison back to the streets," Deborah Rhodes, an associate deputy attorney general, told CNN.

But lawyers and groups that have been pushing for the change in sentencing disagree. They say that most of these prisoners are not hardened criminals, and that judges will have to approve any reduction on a case-by-case basis and will not grant an early release to those considered dangerous.

"Judges have a lot of discretion," Virginia public defender Michael Nachmanoff told CNN. His office filed 16 motions for early release and expects at least four of his clients to be set free Monday, with some others going to halfway houses. Rest of Article. . . [Mark Godsey]

March 3, 2008 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Sunday, March 2, 2008

New Criminal Law Blog: The Faculty Lounge

We’re excited to welcome a new blog into this world.  The Faculty Lounge is a group effort led by two crim profs: Dan Filler (Drexel) and Laura Appleman (Willamette).  They’re joined by Al Brophy (Alabama), Calvin Massey (Hastings), Kathy Bergin (South Texas), and Kevin Maillard (Syracuse).  It’s a general interest law blog, focusing on anything interesting.  Dan has moved his annual Law Faculty Lateral Moves list to his new venue as well.  Members of The Faculty Lounge have been regulars or visitors at Concurring Opinions, Prawfsblawg, BlackProf, PropertyProf, Money Law, Legal History Blog, First Amendment Law Prof, Feminists Law Professors, and elsewhere.    

This is how Dan described the Faculty Lounge mission:  

We imagined a blog that shamelessly embraced  both high theory and pop culture.  A blog that accepted the all-too-true reality that everyone is too damn busy to read anything that isn't engaging.  A blog with multiple voices, some newer and some older.  It seemed to me that we wanted to recreate the experience of a faculty lounge.  Where sometimes people are talking about a great new paper on SSRN, other times they're lamenting the loss of a wonderful colleague to a competitor school, and once in a while they're just amused by a funny bumper sticker they saw on the way to work. [Mark Godsey]

March 2, 2008 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

New Jersey Police Can Now Trace the Source of Guns

From NPR.com: Unable to stop the tide of violence from illegal guns, New Jersey's cities are getting new-found help from the state police to track where the weapons are coming from. It's the first state in the nation to devise a comprehensive program to trace the guns and provide the information to cities doing battle against street violence. Listen. . . [Mark Godsey]

March 2, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

"Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

Gui SSRN.com recently published S.J Quinney College of Law CrimProf Amos N. Guiora and Lewis and Clark College of Law CrimProf John T. Parry's piece Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists.  Here is the abstract:

Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

John_parry Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance[] the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice. [Mark Godsey]

March 2, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)