CrimProf Blog

Robert Batey, a criminal law professor at Stetson University College of Law

Robert Batey holds a bachelor's degree from Yale University and law degrees from the University of Virginia and the University of Illinois. After one year as a teaching assistant at the University of Illinois College of Law and two years as an assistant professor at West Virginia University College of Law, Batey joined the law faculty at Stetson University in 1977. During his tenure at Stetson, Professor Batey visited for one semester at the University of Virginia School of Law and served for four years as Stetson's associate dean. He has written extensively on criminal justice, law and literature, and related topics. Since 1995, he has been a local coordinator for Families Against Mandatory Minimums. [Mark Godsey]

Robert Batey
Stetson University College of Law
1401 61st Street South
St. Petersburg, FL 33707
batey@law.stetson.edu

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Cops: Grand Theft Auto video game inspired crimes

Teenagers who police say went on a video-game-inspired late-night crime spree were arraigned Thursday after they mugged a man outside a New Hyde Park supermarket and menaced motorists in Garden City with a baseball bat, a crowbar and a broomstick, Nassau police said.

The teens told detectives they were imitating the "Grand Theft Auto" video-game series where characters steal cars, beat up other characters and commit crimes, authorities said.

Police have identified at least three victims: a man they said was severely beaten during a robbery; a would-be carjacking victim; and a driver whose van was smashed with a bat.

Nassau Det. Lt. Raymond Coté said there are likely more victims who were attacked.

At one point during the spree, the initial group of four encountered other youths.

"They realize they know them from school and they can't rob them," Coté said. "Two of them they enlist in this crime spree and now they're joining the pack. It's an angry mob of youths."

The six suspects were all charged as adults.

Arrested and charged with felony robbery were Dylan Laird, 17, of Southborough, Mass., and Stephen Attard, 18, Samuel Philip, 16, Brandon Cruz, 15, and Gurnoor Singh, 14, all of New Hyde Park. Police did not release photos of Cruz or Singh because of their age. Jaspreet Singh, 17, of New Hyde Park, was charged with misdemeanor criminal possession of stolen property and is jailed on $20,000 bond or $10,000 cash bail, a jail official said.

Laird, Attard and Philip were ordered held on $100,000 bond, or $50,000 bail. Cruz and Gurnoor Singh were ordered held on $150,000 bond, or $75,000 cash.

The teens committed the crimes Tuesday night into Wednesday morning, police said.

It began Tuesday when the group was hanging out at a park in New Hyde Park, Coté said.

"They decide that they're going to go do some street robberies, emulating the popular fictional character Niko Bellic," Coté said, referring to a star of "Grand Theft Auto IV: Liberty City." [Mark Godsey]

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Allow DNA tests to prove innocence and assure justice

WHEN AN INNOCENT person goes to prison, a guilty person roams our streets, free to victimize again.That is the practical reason we need to do all we reasonably can to make sure that the innocent aren’t convicted and that, if they are, those convictions are reversed and an investigation re-opened. The moral reason, of course, is that it’s wrong to imprison the innocent. We will never get those initial convictions correct 100 percent of the time, but there is a way we can improve our chance of identifying and correcting the errors. Our Legislature will have the opportunity to put it into place today.

A bill awaiting final approval by the House and Senate would add our state to the 44 others that allow people convicted of murder, rape and a handful of other violent crimes to have DNA testing done if they can convince a judge it would likely prove them innocent. That’s something that, in most cases, cannot happen today.

The testing wouldn’t be a new “right” for inmates; a judge would have to order it. And if the test confirmed a prisoner’s guilt, he would be subject to contempt of court, revocation of good-time credits and denial of parole requests. The legislation also requires that any new DNA samples be run through state and federal databases, to see whether the prisoner can be tied to unsolved crimes. That’s a strong disincentive for the guilty to tie up our courts seeking testing.

The bill also expands the state’s DNA database by requiring DNA samples be collected from everyone charged with a serious crime, rather than just those convicted. That makes sense, since DNA is the new fingerprint, but its inclusion worries some lawmakers who support the innocence testing, because Gov. Mark Sanford vetoed a similar bill last year.

Lawmakers would do well to find out whether Mr. Sanford will support this year’s expansion of the DNA database, and to strip it from the bill if he won’t. Better to get the more important law on the books than to see both of them defeated by a veto. [Mark Godsey]

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High Court: No Death Penalty for Child Rape

In a closely divided opinion today, the Supreme Court found that while the crime of raping a child is a "revulsion" to society, it does not merit the death penalty.

Justice Anthony Kennedy, writing for a 5-4 majority, found that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional."

Louisiana and five other states have laws imposing the death penalty for that crime. The ruling today overturned those laws.

The decision and a fiery dissent from the conservative justices explored the controversial moral questions society must face in addressing the topic of child rape.

Kennedy acknowledged as much, writing that such a crime "cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on the victim."

"We cannot dismiss the years of long anguish that must be endured by the victim of child rape," he wrote. But he said that capital punishment is not a "proportionate" penalty for the crime. [Mark Godsey]

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Therapy Dogs Easing Stress for Victims of Violent Crime as They Prepare to Testify

These days, life is carefree for 5-year-old Lexi Lohr. But last year, something terrible happened to her. Mr. Chad. He did something bad … He was going to smack me," she recalled.

Mr. Chad is Chad Wiles, Lexi's former babysitter. He was accused of beating her.

To build a case, prosecutors needed Lexi to testify — a scary proposition for any victim of abuse, let alone a young child.

But officials in Carroll County, Md., had just added a new member to their prosecution team who would prove critical to the case: Buddy the therapy dog.

Buddy, an 11-month-old black lab/Newfoundland mix, was with Lexi while she met with prosecutors in preparation for the trial. For Lexi, it was love at first sight.

Asked if Buddy would make her feel happy when she's sad, she energetically replied, "Yes, he would."

And the reason is simple.

"Because he's a dog! I like dogs! … And I'm gonna marry Buddy!"

Buddy made the judicial system less intimidating for Lexi. She felt more comfortable talking to prosecutors and agreed to testify.

Faced with that prospect, Chad Wiles opted out of a trial and the court convicted him of a child abuse charge. [Mark Godsey]

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Case puts 'Stand Your Ground' law on defense

More than five months after claiming self-defense in the fatal shooting of two unarmed men at a North Miami-Dade chain restaurant, Gabriel Mobley was arrested Thursday for murder.

Miami-Dade prosecutors believe the case is a key test of Florida's 2005 so-called Stand Your Ground law, which loosened standards for shooting in self-defense.

Mobley, 31, is accused of fatally shooting pals Jason Jesus Gonzalez, 24, and Rolando Carrazana, 24, in the parking lot of Chili's Grill & Bar, 5705 NW 173rd Dr., just past midnight on Feb. 28.

Miami-Dade police charged Mobley, of Opa-locka, with two counts of second-degree murder.

''This arrest is very important because it sends a clear message. The Legislature passed the new Stand Your Ground law but it is not a free-for-all to execute people,'' said Miami-Dade State Attorney Katherine Fernandez Rundle.

After the shooting, Mobley cooperated with detectives. His Glock .45-caliber pistol was legitimate. He held a concealed weapons permit.

Initially, Mobley told Miami-Dade homicide detectives he shot Carrazana because he was ''reaching for something under his shirt. He did not see any weapons but he believed he was reaching for one,'' an arrest warrant said.

Mobley denied shooting Gonzalez. But video surveillance ''clearly showed Mobley shooting Gonzalez, whose hands were raised and free from any objects or weapons.'' One witness saw Mobley ''shoot Gonzalez as he was backing away'' and ``shoot Carrazana as he turned to run away.' [Mark Godsey]

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Politicians Respond to Kennedy

Angry politicians vowed to keep writing laws that condemn child rapists to death, despite a Supreme Court decision saying such punishment is unconstitutional.

"Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this," said Alabama Attorney General Troy King, a Republican. The justices, he said, are "creating a situation where the country is a less safe place to grow up."

The court's 5-4 decision Wednesday derailed the efforts of nearly a dozen states supporting the right to kill those convicted of raping a child and said execution was confined to attacks that take a life and to other crimes including treason and espionage.

At issue before the high court was a Louisiana case involving Patrick Kennedy, sentenced to die for raping his 8-year-old daughter in her bed, an assault so severe she required surgery.

In his majority opinion, Justice Anthony Kennedy wrote that "the death penalty is not a proportional punishment for the rape of a child," despite the horrendous nature of the crime.

Republican Louisiana Gov. Bobby Jindal called the ruling "incredibly absurd" and "a clear abuse of judicial authority" and said officials will "evaluate ways to amend our statute to maintain death as a penalty for this horrific crime."

Oklahoma officials said they, too, weren't ready to give up and would "certainly look at what options we have," state Sen. Jay Paul Gumm said. "I think the people of Oklahoma have spoken loudly that this is one of the most heinous of crimes."

Even White House hopefuls joined the fray.

Republican Sen. John McCain called the ruling "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime." Democratic Sen. Barack Obama said there should be no blanket prohibition of the death penalty for the rape of children if states want to apply it in those cases.

Continue reading article here. [Brooks Holland]

Sexual Victimization in Local Jails Reported by Inmates, 2007

Presents data from the 2007 National Inmate Survey (NIS), conducted in 282 local jails between April and December, with a sample of 40,419 inmates. The report and appendix tables provide a listing of results for sampled local jails, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79).

Facilities are listed alphabetically by state with estimated prevalence rates of sexual victimization as reported by inmates during a personal interview and based on activity in the 6 months prior to the interview or since admission to the facility, if shorter. The report includes national-level and facility-level estimates of nonconsensual sexual acts, abusive sexual contacts, inmate-on-inmate and staff-on-inmate victimization, and level of coercion. It also includes estimates of the standard error for selected measures of sexual victimization and summary characteristics of victims and incidents. Data collected from prison inmates in the National Inmate Survey were reported in Sexual Victimization in State and Federal Prisons Reported by Inmates, 2007, released in December 2007. [Mark Godsey]

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Assembly panel kills bill to disclose LAPD disciplinary records

Despite lobbying efforts by Mayor Antonio Villaraigosa, an Assembly committee Tuesday killed a bill that would have cleared the way for the Los Angeles Police Department to make officers' disciplinary hearings and records open to the public.

The bill faced stiff opposition from many of the state's powerful police unions, which argued that the measure would compromise officer safety. LAPD Chief William J. Bratton, normally a Villaraigosa ally, pointedly chose not to take a position on the bill and Tuesday expressed concerns about it.

Three Democrats on the seven-member Public Safety Committee refused to cast a vote. Assemblyman Mark Leno (D-San Francisco) voted for the measure, and Assemblymen Greg Aghazarian (R-Stockton), Joel Anderson (R-San Diego) and Fiona Ma (D-San Francisco) opposed it.

The bill's author, state Sen. Gloria Romero (D-Los Angeles), lashed out against the members who abstained. They were Assemblyman Jose Solorio (D-Santa Ana), the committee's chairman, and Assemblymen Hector De La Torre (D-South Gate) and Anthony Portantino (D-La Cañada Flintridge).

"I was really taken aback by the [bill's] death by silence," Romero said. "The fear, you could feel it -- the fear of what will happen if you look out for the public's interests when they may differ from the interests of the law enforcement lobby."

Tim Sands, president of the Police Protective League, which represents 9,300 LAPD rank-and-file officers, said he was pleased that "this bad piece of legislation was stopped." He reiterated the union's stance that the department's discipline system allows sufficient civilian oversight. The league launched a radio campaign that was highly critical of the proposed law, and Sands, in a recent interview, accused Romero of throwing a "legislative temper tantrum." [Mark Godsey]

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NYPD wants suspects to sign search consent form

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.The initiative was put in place because consent searches are often challenged at trial - and jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said.At the same time, sources said, there has been concern within the NYPD about a handful of cases in which an officer's truthfulness was recently called into question.

In one case, a federal judge said he found it "wholly plausible" that a sergeant forced his way into a Bronx apartment to conduct a search despite the sergeant's contention otherwise. The case, for a fatal 2002 shooting, was eventually dismissed and the city paid $280,000 to settle a civil rights lawsuit.

The consent form has been used by the FBI for years and is already in place in a number of police departments around the country, including in Suffolk County.

The New York Civil Liberties Union says the forms have an obvious upside because it adds to the record of a particular interaction between officer and civilian.

"On the other hand, we certainly hope this wouldn't be used to camouflage any wrongdoing, such as coercion," said Donna Lieberman, the group's executive director. "We hope the Police Department monitors how things work out and that the CCRB [Civilian Complaint Review Board] carefully looks at the implementation of this new protocol."

Robert Thetford, a retired FBI agent who works closely with state troopers on constitutional law issues, says a signed consent form is typically the difference between a jury believing an officer or believing a suspect.

"The bottom line is juries believe what they see in writing," he said. [Mark Godsey]

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Supreme Court Rejects Death Penalty for Child Rape

The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.

Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment, which draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.”

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” Justice Kennedy wrote.

The relatively small number of states that allow the death penalty for the rape of a child demonstrates a “national consensus” against it, Justice Kennedy wrote. Moreover, he wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically go by between a crime and the execution of the defendant.

“Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” Justice Kennedy wrote.

The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., generally regarded as the conservative wing of the tribunal.

Continue reading article here. [Brooks Holland]

Cameras to watch for crime Cincinnati police getting eyes on 120 locations

It's the first step toward a system that eventually could send real-time video to officers' in-cruiser laptops as well as instantly read license plates and run them through motor vehicle registration.Some of the cameras also might have gunshot-recognition sensors, which turn the cameras toward the direction of the shots and zoom in.Call takers and dispatchers in the 911 center, when a crime is reported, will be able to check any nearby cameras to immediately describe what they can see, while officers are still on the way

Cincinnati is following larger cities such as Chicago and New York into the crime camera business. London leads the way in sheer quantity, with 10,000 throughout the city, though some opponents doubt whether the cameras deter crime.

Chicago started its "Operation Disruption" in 2003 and continues to add more cameras. The American Civil Liberties Union there has said the cameras are OK as long as they only monitor street crime and don't violate personal privacy.

Commanders of the city's five police districts will soon recommend where the cameras should go, Capt. Jeff Butler, project supervisor, said.

He said the cameras will be put up throughout the city, not just in one or two neighborhoods.

They will be in addition to the 20 going up along Glenway Avenue by the end of October. Target Corp. paid the $183,000 for those.

Although catching homicides on video would be ideal, Butler said officials expect the cameras more often will be helpful on what he calls "the reactive end," for investigators going back to look at video taken just after a crime.

Those uses will lead to more identification and apprehension of suspects, he thinks, and the video will help prosecutors get more convictions.

There's also the possibility of using a camera to watch a problem spot.

"Say there's an officer eating his lunch in his car," he said. "Eventually, he'll be able to watch a camera that's maybe two blocks away. So if he sees something, he puts down his lunch and goes." [Mark Godsey]

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Supreme Court Says Right to Counsel Begins With First Appearance Before Judge

A defendant's Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand, the Supreme Court ruled on Monday.

The Court's 8-1 decision in Rothgery v. Gillespie County, Texas, came as the justices began their final week before adjourning for the summer. The justices will take the bench again on Wednesday and possibly one other day this week.

The ruling in Rothgery dealt with a Texas "magistration" procedure under which a defendant goes before a magistrate judge, has bail set, and can be imprisoned -- all without the involvement of a prosecutor or the appointment of defense counsel.

Walter Rothgery had been picked up in Fredericksburg, Texas, based on an erroneous California police report and was arrested as a felon with a firearm. He was jailed for a period, but posted bail. It was not until six months after his initial appearance before a judge that counsel was appointed -- at which point the lawyer documented the erroneous report and got Rothgery's indictment dismissed.

Justice David Souter, writing for the majority, said that when a state's commitment to prosecute is strong enough to prompt arraignment and imprisonment of an individual, "by that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it."

The decision may have limited impact because 43 states, plus the federal and Washington, D.C., governments, already appoint counsel for indigent defendants before or just after the initial appearance before a judge. And even in the remaining states -- Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia -- procedures in many cases conform to the Court's view of the Sixth Amendment right. [Mark Godsey]

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NIJ In-Custody Death Study: The Impact of Use of Conducted Energy Devices

An expert panel of medical professionals found no conclusive evidence of a high risk of death or serious injury from the direct effects of Conducted Energy Devices (CEDs), such as Tasers.The panel is studying deaths related to the use of CEDs. In an interim report, the panel said that law enforcement agencies need not stop using CEDs, but cautioned that they should be used reasonably and only after proper training. Law enforcement agencies that use CEDs report reduced injuries to officers and suspects alike. However, deaths and serious injuries of suspects also occur.

Google Search Data to Help Define Obscenity?

Judges and jurors who must decide whether sexually explicit material is obscene are asked to use a local yardstick: does the material violate community standards?

That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

It is not clear that the approach will succeed. The Florida state prosecutor in the case, which is scheduled for trial July 1, said the search data may not be relevant because the volume of Internet searches is not necessarily an indication of, or proxy for, a community’s values.

But the tactic is another example of the value of data collected by Internet companies like Google, both from a commercial standpoint and as a window into the thoughts, interests and desires of their users.

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

Mr. Walters last week also served Google with a subpoena seeking more specific search data, including the number of searches for certain sexual topics done by local residents. A Google spokesman said the company was reviewing the subpoena.

Read full article here. [Brooks Holland]

Doubting Case: Prosecutor Helped the Defense

The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence. So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb.Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost.

But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win.

He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.

“I did the best I could,” he said. “To lose.”

Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December.

Mr. Bibb, 53, who said it was painful to remain in the office, resigned in 2006 and is trying to build a new career as a defense lawyer in Manhattan — with some difficulty, friends say, in a profession where success can hang on the ability to cut deals with prosecutors. [Mark Godsey]

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Court: Juveniles have right to jury trial

Juvenile offenders in Kansas have a constitutional right to a jury trial, the state’s highest court declared Friday in a decision that could force prosecutors to retry hundreds of cases.

The ruling has Douglas County court officials trying to figure out how their system will be affected.

“Quite frankly, we don’t know,” the district court’s administrative judge, Robert Fairchild, said. “If (jury trials) increase dramatically that will certainly affect the way we do business.”

The ruling could increase the number of jury trials, time spent on them and require at least one more prosecutor, Douglas County District Attorney Charles Branson said. His office has only one juvenile prosecutor.

“If juveniles demand their right to a juvenile trial, our system is not set up for this,” Branson said. “Our processing time for juvenile cases and costs associated with prosecuting cases will double, if not triple.”

There are very few juvenile trials now, maybe only a couple a year, Fairchild said. They are usually the most serious felony cases and most of them get worked out before trial, he said.

“They have the right to ask for a jury trial now. We have rarely denied them that,” Fairchild said.

Attorney Martin Miller said he has asked for jury trials knowing that the judge would probably deny them.

“It’s been entirely up to the judge’s discretion,” Miller said. “It’s a rare case that they are granted.” [Mark Godsey]

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The Price of Leniency

The June 12 news story "New Criminal Record: 7.2 Million," on the number of people under supervision in the nation's criminal justice system, reported on the financial burden of running correctional systems without mentioning the savings resulting from crimes averted. Experience suggests that shortened sentences and reduced supervision of offenders released from prison carry a higher cost, especially in human terms, than the savings these shortsighted policies generate.

In 2006, the most recent year for which complete data are available, police received the fewest reports of violent crime and property crime since 1977. What was the cause? Research has shown that, with some exceptions, crime rates decline as the incarceration rate rises. In other words, while the number of people under correctional supervision has gone up, crime has gone down.

Research on state prisoners shows that among drug offenders, nearly 67 percent were rearrested within three years of release. For violent offenders, nearly 62 percent were rearrested within three years of release. Overall, more than 67 percent of prisoners were rearrested within three years for committing new offenses.

The cost of these new crimes goes beyond prisons. The most conservative estimate for the cost of violent and property crimes in the United States is more than $17 billion a year -- and that's just direct, immediate cost. This leaves out such costs as crime victims' struggle to be made whole.

Let there be no mistake -- releasing criminals early may help save money in the short term, but not in the long term. [Mark Godsey]

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SCOTUS Clarifies When Sixth Amendment Right to Counsel Attaches

The Court decided Rothgery v. Gillespie County today.  In an 8-1 decision, the Court held that the Sixth Amendment right to counsel attached after the Petitioner was arraigned before a magistrate -- that is, when the magistrate determined there was probable cause to charge him with a criminal offense -- even though he was not indicted until six months later.  Only Justice Thomas dissented.

The virtual unanimity, however, masks a deeper division on the Court.  Rothgery was out on bond until he was indicted.  He claims he was harmed by the deprivation of counsel in that, once he was indicted, he was rearrested and jailed for three weeks until his appointed counsel proved to the prosecutor that Rothgery did not violate the criminal statute at issue (essentially, it was a felon-in-possession statute, and Rothgery had never been convicted of a felony).  In a separate opinion joined by the Chief Justice and Justice Scalia, Justice Alito cautioned against reading the decision too broadly.  It held only that the Sixth Amendment attached for Rothgery; but it did not hold that any Sixth Amendment rights were violated.  Since the Sixth Amendment right to counsel is essentially a trial right, the concurrence pointed out, it remains to be seen whether Rothgery's claim was cognizable, given that he was never tried. [Mike Mannheimer]

Man cleared by DNA test seeks to clear record

DALLAS — The Innocence Project on Friday asked a Texas court to toss out the convictions that sent an innocent man to prison for 25 years and keeps him on probation today. DNA testing last year showed Steven Phillips was innocent of a 1982 sexual assault and burglary. In January, additional testing found that DNA evidence from the rape matched another man, Sidney Alvin Goodyear, who died in prison about a dozen years ago.

Phillips, who is on parole and lives in a halfway house as part of his probation, still has an extensive criminal record because he pleaded guilty to nine related sex crimes over fear that he would receive a life sentence if convicted, his lawyer said. Prosecutors now believe those sex crimes were also committed by Goodyear.

The Innocence Project said Friday there is a "wide range of clear evidence" showing that Phillips is innocent of all 11 crimes. Lawyers for the group, a New York-based legal center that tries to overturn wrongful convictions, argue that Goodyear committed all of the assaults and burglaries.

They also accuse Dallas police of improperly focusing on Phillips and ignoring evidence that pointed to Goodyear, originally a suspect before police targeted Phillips.

A hearing will likely be set by late July in state district court in Dallas in which two judges will decide whether Phillips' convictions should be vacated.

Innocence Project attorney Jason Kreag praised the Dallas County District Attorney's Office for its efforts to determine whether Phillips was guilty of the crimes that kept him in prison and now on parole.

"They have been remarkably cooperative and thorough in reinvestigating these crimes since we have identified Goodyear," Kreag said.

Mike Ware, who heads the Conviction Integrity Unit in the Dallas County DA's office, said his investigator has been challenged by the lack of DNA evidence in the other cases on Phillips' record.

"Obviously, it makes the task quite a bit more difficult," Ware said. "But it looks like there is certainly some corroboration on at least some of the cases, that even though there is no DNA, that Goodyear committed those offenses as well."

If a judge were to vacate Phillips' convictions, the effect would be more than just the symbolic clearing of his criminal record. Phillips remains on parole because of a 45-year sentence he received for pleading guilty to a sexual assault. That parole would end if his convictions are tossed. [ Mark Godsey]

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