April 12, 2008
New Article Spotlight: Charles Weisselberg on Mourning Miranda
Berkeley CrimProf Charles Weisselberg has published Mourning Miranda on SSRN. The abstract: "The article presents new field research about police interrogation tactics and training and discusses that research in light of recent science literature and judicial decisions. I argue that the safeguards of Miranda v. Arizona have become ineffective, not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda's supposed protections.
Miranda's warnings and waivers were intended to afford custodial suspects an informed choice between speech and silence, and prevent involuntary statements. But there never was evidence to show that a system of warnings and waivers could actually protect the Fifth Amendment privilege against self-incrimination. Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda's safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court's pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.
I also argue that Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation." Full article here. [Jack Chin]
April 11, 2008
CrimProf Spotlight: Paul Marcus
This week the CrimProf Blog spotlight William and Mary College of Law CrimProf Paul Marcus.
Joined the faculty in 1992. Clerked for the U.S. Court of Appeals for the District of Columbia Circuit. Practiced law at Loeb and Loeb in Los Angeles. Served as Dean of the University of Arizona School of Law, taught at the University of Illinois School of Law and was a visiting professor at the University of Geneva, University of Melbourne, University of Puerto Rico, University of San Diego and the University of Texas.
Author of Criminal Procedure in Practice, The Entrapment Defense, The Prosecution and Defense of Criminal Conspiracy Cases, and articles in the American Journal of Comparative Law and the Cornell, Georgetown, William and Mary, Florida, Southern California, and American Criminal law reviews. Co-author of Copyright and other Aspects of Law Pertaining to Literary, Musical and Artistic Works; Criminal Law: Cases and Materials; and Criminal Procedure: Cases and Materials.
Member of the American Bar Association Committees on the Rules of Criminal Procedure and Evidence, International Criminal Law, and Law School Curriculum. Chair and member of numerous committees within the Association of American Law Schools. Co-reporter for the National Right to Counsel Committee, 2004-2007.
Founder of the Literature and the Law Program at the Central Virginia Regional Jail. Frequently interviewed by the media (Wall Street Journal, New York Times, Washington Post, Los Angeles Times, CBS, NPR, ABC) as an expert in criminal law and procedure. Recipient of the Distiniguished Citizen of the Year Award, University of Arizona; Volunteer of the Year Award, Williamsburg Big Brothers Mentoring Program; the Walter L. Williams, Jr. Teaching Award; and nominated by the College of William and Mary for several state and national recognition awards.
Detainee Boycotts Trial
From LATimes.com: A Sudanese prisoner with long ties to Osama bin Laden told the war-crimes tribunal here Thursday that the Sept. 11 attacks dealt heavy blows to U.S. security and exposed the "hypocrisy" behind American claims that it stands for equality and justice.
Appearing at his arraignment, Ibrahim Ahmed Mahmoud Qosi refused to accept legal representation for his trial before the Pentagon's military commissions.
After a rambling statement, he announced that he would boycott further proceedings.
The bearded 47-year-old was the third Guantanamo defendant in the last month to call the military tribunal illegitimate and refuse to cooperate in his own defense.
"I leave in your hands the camel and its load for you to do whatever you wish," he told Air Force Lt. Col. Nancy Paul, the judge preparing for his trial on charges of conspiracy and material support for terrorism.
Qosi also accused the U.S. military of discrimination against citizens of the Third World, noting that two British detainees and an Australian charged along with him four years ago have since been released under pressure from those governments. Rest of Article. . . [Mark Godsey]
Race and the Death Penalty: Is Justice Color Blind?
Widener Law is teaming up with area civic groups to present an
evening forum that showcases legal academics and practitioners in a
conversation on capital punishment, led by the woman who co-founded the
Cornell Death Penalty Project 15 years ago.
“Race and the death penalty: Is justice color blind?” is free and open to the public. It will be held Tuesday, April 15 at 7 p.m. in the Ruby R. Vale Moot Courtroom on the Delaware campus of Widener Law at 4601 Concord Pike, Wilmington. The program will be preceded by a reception in the Barristers’ Club at 6 p.m.
Professor Sheri Lynn Johnson of Cornell University Law School, an expert on the interface of race and issues in criminal procedure, will speak first. Johnson is assistant director of the Cornell Death Penalty Project, an initiative to foster empirical scholarship on the death penalty. She helps students work with lawyers on death penalty cases.
Johnson graduated from Yale Law School in 1979 and went to work in the criminal appeals bureau of the New York Legal Aid Society. She joined the Cornell faculty in 1981 and teaches constitutional and criminal law. She supervises the school’s post-conviction litigation and capital trial clinics. After Johnson speaks, the program will move to a panel discussion featuring:
- Widener Professor Robert L. Hayman Jr., who co-teaches a seminar on constitutional law with adjunct professor and U.S. Sen. Joe Biden, D-Del.
- Widener Professor Judith L. Ritter, who directs the law school’s criminal defense clinic.
- Keisha N. Hudson, an assistant public defender in the Philadelphia capital habeas unit.
April 10, 2008
Nebraska Supreme Court Refuses to Reconsider Electrocution as Cruel and Unusual
From journalstar.com: The Nebraska Supreme Court on Wednesday refused to reconsider its decision that electrocution is unconstitutional.
The decision was handed down by the court in response to Attorney General Jon Bruning’s request for another hearing in the case. The court did not explain its decision.
It didn’t come as a surprise — Bruning had said he didn’t expect judges who made the landmark decision to change their minds.
“Nebraskans overwhelmingly support the death penalty. We’ll do everything possible to ensure the sentences of the state’s worst murderers are carried out,” he said Wednesday.
His office plans to appeal to the U.S. Supreme Court. Rest of Article. . . [Mark Godsey]
Public Forum on Preventing Wrongful Convictions
From newsli.com: On Friday, April 11th, the New York State Senate Democratic Task Force on Criminal Justice Reform will host a public forum at Stony Brook University on proposals to mandate electronic recording of custodial police interrogations. This event will be the first of three forums across the state to address proposed reforms to our criminal justice system to prevent wrongful convictions of the innocent and convict the guilty.
During these forums, Legislators and the public will hear testimony from experts and exonerees concerning reform measures that have been proposed in the New York State Legislature or by advocacy groups to help prevent wrongful convictions. Friday’s forum will focus on measures to address Mandatory Electronic Recording of Interrogations.
According to proponents of electronic recording of police interrogations, this protocol would save time and money, create undeniable evidence, resolve disputes involving allegations of police misconduct, and verify whether confessions are voluntary—benefits that might have contributed to the timely resolution of the 1990 People v. Martin Tankleff case if they had been in place at the time.
The confession obtained during Mr. Tankleff’s interrogation by police regarding the murder of his parents was called into question, and after 17 years in prison, his conviction was unanimously overturned by the New York State Appellate Court, 2nd Department in light of new evidence of his innocence. Mr. Tankleff will be present and his representatives are among those scheduled to testify. Rest of Article. . . [Mark Godsey]
April 9, 2008
New Article Spotlight: Revisiting the Imperial Scholar: Market Failure on Law Review?
UNLV LawProf Rachel Anderson has published a very interesting draft on SSRN; though not specifically about criminal law, it will be of interest to many CrimProfs. The abstract: This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process. Further it calls for institutional retraining to support the implementation of new criteria and standards and facilitate more accurate evaluation of scholarship.
The evaluation of legal scholarship is often based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. Nor is it reasonable to expect them to do so. No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate. The reforms suggested in this article are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.
This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics. It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Garry Becker utilizing the tools of economic analysis in non-market contexts. Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform. [Jack Chin]
A Personal Story of the Daily Battle Against Recidivism
From latimes.com: t happened again at a Taco Bell. The old way of thinking, the criminal voice, wouldn't shut up inside the head of Ken Layton.
"Yeah, take out that punk kid, beat the crap out of him, show that pimply faced idiot he ain't nothin' and you're still Folsom Kenny Layton."
He was standing in line at the fast-food joint, behind an overwhelmed woman with an unruly child. She was complaining about her order, and the kid behind the counter kept putting her down. "He was rude," Layton said. "Sarcastic."
Layton, 64, had been out of prison for 20 years. And yet the old thinking was back, a twisted moral code that he wrote in childhood, refined over decades behind bars and enforced throughout early adulthood, no matter who got hurt.
For many ex-cons, this is the kind of moment that can precede a crime and, ultimately, a return to prison. A 2002 Justice Department study that tracked prisoners released in 15 states found two-thirds of them were rearrested within three years for a felony or serious misdemeanor. The California Department of Corrections and Rehabilitation, in a 2006 report, tracked inmates for two years after their release and found a recidivism rate of 38% after one year. After two years, 51% of released California prisoners were back behind bars.
Layton knows why: prison thinking, convict thinking, criminal thinking.
In his case, it was still there, decades after his last crime. But as he drove down the street with his wife, Layton adjusted. Within a few blocks, he'd found a way to stifle Folsom Kenny.
Layton's ability to defuse his anger is a rare skill for an ex-con, but it doesn't have to be. Experts think helping criminals understand how their thought processes are connected to the crimes they commit is more than just a touchy-feely exercise. It can reduce recidivism. Rest of Article. . . [Mark Godsey]
CrimProf Randall Coyne Discusses Warden's Wife Chraged with Helping Death Row Inmate Escape
From ap.com: University of Oklahoma CrimProf Randall Coyne discusses the case of a deputy prison warden's wife who disappeared with a convicted murderer in 1994 and spent a decade on the run with him has been charged with helping him escape.
Three years after Bobbi Parker and Randolph Dial were found, a prosecutor said Tuesday he had charged Parker with assisting in Dial's escape from the Oklahoma State Reformatory in Granite. Now 45, she could face up to 10 years in prison if convicted.
Dial died in prison at age 62 last year. After his 2005 capture, he said he kidnapped Parker at knifepoint and forced her to live with him all those years. But a court affidavit alleges that the two were romantically involved prior to the escape, and that Parker helped Dial escape by hiding him in her car.
At the time of Dial's escape, Parker left behind her husband, Randy, who was deputy warden at the Granite prison at the time, and two daughters, then ages 8 and 10. She was reunited with them after she was found in April 2005 in east Texas, where she and Dial had been raising chickens.
CrimProf Coyne said Dial's death and the long delay in prosecuting the case could work to Parker's benefit.
"She could argue that her due process rights are harmed because the prosecutor sat on the charges for so long," Coyne said. "She could argue documents or witnesses helpful to her may have disappeared."
Rest of Article. . . [Mark Godsey]
Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia
SSRN.com Recent published University of Berkeley School of Law CrimProf Ty Apler's article "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia." Here is the abstract:
Lawyers challenging lethal injection on
behalf of death row inmates have frequently argued that lethal
injection protocols do not comport with standard practices for the
euthanasia of animals. This article studies state laws governing animal
euthanasia and concludes that many more states than have previously
been recognized ban the use of paralyzing agents in animal euthanasia.
In fact, 97.6% of lethal injection executions in this country have
taken place in states that have banned, for use in animal euthanasia,
the same drugs that are used in those states during executions.
Moreover, a study of the legislative history of state euthanasia laws reveals that the concerns raised about paralyzing drugs in the animal euthanasia context are identical in many ways to the concerns that lawyers for death row inmates are currently raising about the use of those drugs in the lethal injection executions of human beings.
This article takes an in depth look at animal euthanasia and its relationship to lethal injection by examining in Part I the history and origins of the paralyzing drugs that veterinarians and animal welfare experts refuse to allow in animal euthanasia; in Part II the standards of professional conduct for veterinary and animal shelter professionals; in Part III, the state laws and regulations governing animal euthanasia; and finally in Part IV, the legislative history that led to the enactment of the various states' animal euthanasia laws and regulations.
April 8, 2008
Questioning new Marijuana Tax
From NPR.com: California's potential $16 billion budget shortfall has led state officials to an unusual source for tax revenue — medical marijuana storefronts. In a state where it's legal to buy prescription pot, those shops generate millions of dollars each year. But there's just one problem — buying and selling marijuana is still a federal crime.
Richard Lee, owner of a coffee shop and marijuana dispensary in Oakland, says he's proud of the more than $200,000 a year he pays in sales tax. His store sells marijuana buds in one-eighth ounce bags.
"We have one medium grade on our menu, that's $30 an eighth plus tax," Lee says. "And three high grades, that's $40 an eighth plus tax, so it comes to $44 with tax, sales tax included."
Medical marijuana advocates estimate that the aggregate annual sales tax revenue that's paid by the approximately 400 dispensaries in California is $100 million. Kris Hermes, a spokesman for Americans for Safe Access, says the state actually makes it easy for pot venders to do business without revealing their product by issuing generic "sellers permits." Rest of Article. . . [Mark Godsey]
Former Death Row Inmate to Discuss Capital Punishment
William Neal "Billy" Moore, former Georgia death row inmate, will discuss capital punishment on Tuesday, April 8, from noon to 12:50 p.m., at the Knight Law Center, 1515 Agate Street, Room 142, in Eugene.
Moore spent 16 years on Georgia’s death row and is one of the few Americans to be released from prison after admitting to a capital crime. Members of the victim’s family, Mother Theresa and Jesse Jackson supported his release. [Mark Godsey]
University of Maryland Hosts Prostitution and Legal System Symposium
The many dangers to the health and safety of those involved in prostitution are well documented but does our legal system provide adequate resources to help these vulnerable people? Join the University of Maryland's School of Law Students Supporting the Women's Law Center [SSWLC] as they present an engaging panel discussion, From the Streets to the Courts: Examining the Relationship between Prostitution and the Legal System.
The dialogue, moderated by Baltimore Sun reporter Jonathan Bor, will explore how Maryland's legal system serves individuals involved in prostitution and consider possible improvements to the current system. Expert panelists include Judge Charlotte Cooksey of the Prostitution Reform Court; Sidney Ford, Executive Director of You Are Never Alone [YANA]; and a YANA friend. [Mark Godsey]