CrimProf Blog

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

Saturday, July 19, 2008

Debra A Livingston Paul J. Kellner Professor of Law

Dlivingston  Judge Livingston was appointed United States Circuit Judge for the Second Circuit on May 17, 2007 and entered on duty June 1, 2007. Prior to her appointment she was the Paul J. Kellner Professor of Law at Columbia Law School, where she also served as Vice Dean from 2005 to 2006. Judge Livingston joined the Columbia faculty in 1994. She continues to serve as a member of that faculty as the Paul J. Kellner Professor.

    Judge Livingston received her B.A., magna cum laude, in 1980 from Princeton University, where she was elected to Phi Beta Kappa. She received her J.D., magna cum laude, in 1984 from Harvard Law School, where she was an editor on the Harvard Law Review. Following law school, she served as a law clerk to Judge J. Edward Lumbard of the United States Court of Appeals for the Second Circuit.

    Judge Livingston was an Assistant United States Attorney in the Southern District of New York from 1986 to 1991 and she served as a Deputy Chief of Appeals in the Criminal Division from 1990 to 1991. She was an associate with the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison from 1985 to 1986 and again from 1991 to 1992, when she elected to pursue an academic career. Judge Livingston was a member of the University of Michigan’s Law School faculty from 1992 until 1994.

    Judge Livingston is a co-author of the casebook, Comprehensive Criminal Procedure, and has published numerous academic articles on legal topics. She has taught courses in evidence, criminal law and procedure, and national security and terrorism. From 1994 to 2003, Judge Livingston was a Commissioner on New York City’s Civilian Complaint Review Board. [Mark Godsey]

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July 19, 2008 in Weekly CrimProf Spotlight | Permalink | Comments (0) | TrackBack (0)

U.S. blasts jail conditions

Sheriff calls 98 pages of criticism 'unprofessional,' defends reform program

In a scathing report released Thursday, federal authorities said that a culture exists at Cook County Jail in which inmates are systematically beaten by guards and medical care is so substandard that some inmates have died.

The Justice Department threatened legal action if steps aren't taken to ensure that inmates' basic constitutional rights aren't routinely violated.

In the 98-page report, the U.S. attorney's office in Chicago and the Justice Department's Civil Rights Division called the complex violent and pointed to a raft of problems ranging from unsanitary conditions to inadequate mental health care and suicide-prevention measures.

At a news conference, U.S. Atty. Patrick Fitzgerald called on the Cook County Board and Sheriff Tom Dart to fix a dangerous jail that is "woefully inadequate."

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July 19, 2008 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Third Circuit Strikes Down Statute Criminalizing Visual Depictions of Animal Cruelty

In a 10-3 decision, the en banc U.S. Court of Appeals for the Third Circuit ruled that a federal statute criminalizing visual depictions of animal cruelty violates the First Amendment.  The law in question, 18 U.S.C. sec. 48 states:

(a) Creation, sale, or possession.--Whoever

knowingly creates, sells, or possesses a depiction

of animal cruelty with the intention of placing that

depiction in interstate or foreign commerce for

commercial gain, shall be fined under this title or

imprisoned not more than 5 years, or both.

(b) Exception.--Subsection (a) does not apply to

any depiction that has serious religious, political,

scientific, educational, journalistic, historical, or

artistic value.

(c) Definitions.--In this section–

(1) the term “depiction of animal

cruelty” means any visual or

auditory depiction, including any

photograph, motion-picture film,

video recording, electronic image,

or sound recording of conduct in

which a living animal is

intentionally maimed, mutilated,

tortured, wounded, or killed, if such

conduct is illegal under Federal law

or the law of the State in which the

creation, sale, or possession takes

place, regardless of whether the

maiming, mutilation, torture,

wounding, or killing took place in

the State; and

(2) the term “State” means each of

the several States, the District of

Columbia, the Commonwealth of

Puerto Rico, the Virgin Islands,

Guam, American Samoa, the

Commonwealth of the Northern

Mariana Islands, and any other

commonwealth, territory, or

possession of the United States.

[Mike Mannheimer]

July 19, 2008 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Facebook Becomes a Source of Evidence

Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled "Jail Bird."

In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case.

Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.

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July 19, 2008 in Criminal Law, Law Enforcement | Permalink | Comments (0) | TrackBack (0)

Ex-Diplomat Asserts Cultural Claim for Child Sex Sentence Reduction

An ex-diplomat convicted of having sex with teenage girls in the Congo and Brazil and taping the encounters is asking a judge for leniency, claiming that cultural differences in those countries make sex with girls more acceptable.

Gons G. Nachman, 42, pleaded guilty in April to possessing child pornography after admitting that he had sex with 14- to 17-year-old girls while serving as a consular officer in Brazil and Congo and documenting the encounters in pictures and videos.

The judge has agreed to delay Nachman's sentencing until Aug. 22 so that he can be examined by noted forensic psychologist Stanton Samenow. Defense attorney Stephen Stine said in court papers that a psychological examination might show that cultural differences led Nachman to believe that sexual contact with teenage girls was acceptable, and that should have an impact on what kind of sentence he receives.

Prosecutors rejected the notion that Nachman's victims somehow deserve less protection because they were not born or raised in America.

"Children in the Democratic Republic of the Congo and Brazil have the same inherent value as children in the United States," prosecutor Ron Walutes wrote in court papers.

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July 19, 2008 in Criminal Law, International | Permalink | Comments (0) | TrackBack (0)

Pardon-Seekers Look to the President at End of Term

Felons are asking President Bush for pardons and commutations at historic levels as he nears his final months in office, a time when many other presidents have granted a flurry of clemency requests.

Among the petitioners is Michael Milken, the billionaire former junk bond king turned philanthropist, who is seeking a pardon for his 1990 conviction for securities fraud, the Justice Department said. Mr. Milken sought a pardon eight years ago from President Bill Clinton, and submitted a new petition in June.

In addition, prominent federal inmates are asking Mr. Bush to commute their sentences. Among them are Randy Cunningham, the former Republican congressman from California; Edwin W. Edwards, a former Democratic governor of Louisiana; John Walker Lindh, the so-called American Taliban; and Marion Jones, the former Olympic sprinter.

The requests are adding to a backlog of nearly 2,300 pending petitions, most from “ordinary people who committed garden-variety crimes,” said Margaret Colgate Love, a clemency lawyer.

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July 19, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

The Exclusionary Rule as the American Exception

Bradley Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him.

A year and a half later, an Ontario trial judge ruled that the officer’s conduct was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s explanation for stopping and searching Mr. Harrison — confusion about a license plate — was contrived and defied credibility, the judge said, and the search “was certainly not reasonable.”

In the United States, that would have been good news for Mr. Harrison. Under the American legal system’s exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to exclude the evidence. Mr. Harrison was sentenced to five years in prison.

“Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

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July 19, 2008 in Criminal Justice Policy, Criminal Law, International | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2008

The Right to Counsel in Criminal Cases, A National Crisis

Two years ago, on the fortieth anniversary of Gideon v. Wainwright partnership -- funded by several organizations -- to consider the way in which the Sixth Amendment right to counsel actually functions in criminal cases throughout the United States. The concept was to create a truly national committee with participants from every relevant sector of the criminal justice system, which would conduct research throughout our country, advise our fellow citizens on the matter, and construct recommendations for reform. The authors serve as Reporters to the Committee.

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July 17, 2008 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Michigan Ranks 44th in the Nation for Public Defense Spending; So-called called "McJustice" System Puts Communities at Risk

Lansing, Michigan - Michigan ranks 44th in the nation for public defense spending, behind Alabama and Georgia, spending only $7.35 per capita, according to a report released today by the National Legal Aid & Defender Association (NLADA).

"A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis" also found that residents are routinely tried in district courts without access to any legal counsel whatsoever, calling into question the reliability of Michigan's criminal justice system. NLADA is asking state lawmakers to take ownership of this problem and immediately address funding and administrative deficiencies. The Senate and the House are scheduled to hold briefings on the report today and tomorrow.

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July 17, 2008 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Two years of freedom, after 23 years behind bars

Briscoe After serving 23 years in Missouri prison for a rape he didn’t commit, Johnny Briscoe was exonerated on July 19, 2006. Saturday marks the second anniversary of his exoneration.

Briscoe’s case highlights the unreliability of eyewitness identification. When a line-up was arranged for the victim back in the early 1980s, Briscoe was the only man (out of four) wearing an orange jumpsuit – “Halloween orange,” he would later tell The Denver Post.  Possibly influenced by the jumpsuit, the victim misidentified Briscoe as her assailant — despite having spent an hour with the perpetrator in a well-lit room.

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July 17, 2008 in Exoneration Innocence Accuracy | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2008

'First 48' airs confession, draws criticism from Lester guardian

1lester_t220 In an interrogation aired on national television Tuesday night, Lt. Toney Armstrong of the Memphis Police Department drew a confession from 33-year-old Jessie Dotson for the Lester Street mass murder.

The confession came at the end of an hourlong episode of "The First 48," an A&E Television reality show that follows homicide detectives in several cities, including Memphis.

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July 16, 2008 in Confessions and Interrogation | Permalink | Comments (1) | TrackBack (0)

As California looks to expand death row, a flap over where to build it

If Methodist pastor Liza Klein had her way, no one would be executed in the US again. But for the moment, she has another goal: keeping California's death row in her own backyard.

Despite the estimated $400 million price tag for its expansion, Ms. Klein and other death-penalty opponents want the death row to stay at San Quentin State Prison because its location next to San Francisco provides easier access to lawyers, family members, and activists.

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July 16, 2008 in Capital Punishment | Permalink | Comments (0) | TrackBack (0)

City launches effort to curb killings

Homi625july16 ST. LOUIS — Sitting on the front steps of her home watching her 5-year-old son play in the summer heat, Sheronda Glover had no idea why Academy Avenue suddenly filled with squad cars, police officers and news crews.

Glover, 30, wasn't close enough to hear Police Chief Joe Mokwa announce the department's new initiative designed to reduce homicides in the city, which are on pace to reach the highest yearly total in 13 years.

Told why the chief, top brass, dozens of officers and two mobile command units were stationed outside her house, Glover said she hopes the plan to saturate neighborhoods, including the Academy neighborhood, with patrols and plainclothes officers will make a difference.

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July 16, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Reaching out from death row

SAN FRANCISCO -- -- From the forbidding, steely confines of San Quentin Prison's death row, scores of California's most notorious convicts have been reaching out to the free world via the Internet.

Scott Peterson's Web page features smiling photos of himself with his wife Laci, whom he was found guilty of murdering and dumping into San Francisco Bay while she was pregnant with their unborn son. It also links viewers to his family's support site, where Peterson has a recent blog posting on his "wrongful conviction."

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July 16, 2008 in Capital Punishment | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2008

JonBenet toxic gossip was in itself a true crime

We were all so sure. Weren't we? We were certain. It was a slam dunk.

We knew. Everybody knew. Anybody who doubted it—anybody who hesitated, even briefly, to pronounce that strangely furtive family guilty, to wonder why the cops didn't just slap the cuffs on those monsters without the annoying wait for actual evidence—was a fool, a chump, a moron.

Dad did it. Or Mom. Or maybe it was the other kid, that creepy brother. Wouldn't he have been crazy-jealous of JonBenet, his adorable little sister? Didn't she get all the attention?

Yeah. We had it all figured out, didn't we?

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July 15, 2008 in Criminal Law | Permalink | Comments (1) | TrackBack (0)

Former Assistant AG Winds Up on Feds' Terror Watch List

The Justice Department's former top criminal prosecutor says the U.S. government's terror watch list likely has caused thousands of innocent Americans to be questioned, searched or otherwise hassled.

Former Assistant Attorney General Jim Robinson would know: he is one of them.

Robinson joined another mistaken-identity American and the American Civil Liberties Union on Monday to urge fixing the list that's supposed to identify suspected terrorists.

"It's a pain in the neck, and significantly interferes with my travel arrangements," said Robinson, the head of the Justice Department's criminal division during the Clinton administration. He believes his name matches that of someone who was put on the list in early 2005, and is routinely delayed while flying -- despite having his own government top-secret security clearances renewed last year.

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July 15, 2008 in Homeland Security | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2008

Petition for certiorari in U.S. v. Joseph Hirko raises important double jeopardy and criminal collateral estoppel issues

[Max Huffman]
This is a copy of the petition for certiorari in U.S. v. Joseph Hirko,  which raises important double jeopardy and criminal collateral estoppel issues.  The petition asks the Court to review a 5th Circuit decision holding that after a mixed verdict of acquittals and hung counts (no guilty verdicts) after trial on a multi-count indictment, the existence of the hung counts creates the specter of jury irrationality and precludes the application of collateral estoppel principles to issues necessarily decided in the acquittals.  These questions lie at the intersection of Ashe v. Swenson and U.S. v. Powell, have split the circuits deeply, and have not been meaningfully addressed by the Court in decades.   One of petitioner's counsel is Mark Stancil, who also runs the Supreme Court clinic at Virginia.  (That clinic has no involvement in this petition.)
There is an amicus effort supporting certiorari underway.  The brief -- due August 6 -- is being drafted by pro bono counsel.  We are seeking academic signatories.  If you are interested in principle in joining a brief, please let Elizabeth Zilberberg know at this e-mail address:  She will forward get your name placed on a list of tentatively interested signatories.  As soon as a draft of the brief is ready to share we will get it to you.

July 14, 2008 in CrimProf Moves | Permalink | Comments (0) | TrackBack (0)

Juvenile Justice Some changes would improve legislation in the Senate

SINCE 1974, federal law has required that juveniles picked up for breaking the law be kept separate from alleged adult offenders -- and for good reason. Juveniles held in adult facilities are more likely to be attacked, more likely to commit crimes once released and more likely to commit suicide than those held in facilities that house only minors. This week, the Senate Judiciary Committee is scheduled to consider reauthorizing an updated version of the 1974 bill. The Juvenile Justice Delinquency and Prevention Reauthorization Act of 2008 strengthens protections for juveniles while safeguarding judicial discretion to deal with exceptional cases. It also calls for preservation and expansion of programs that have been particularly effective in combating delinquency and crime among youth, including mentoring and after-school supervision. The bill should be passed, with some changes.

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July 14, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Denver and the west Report: Police use of force improved

two-year independent study of the Denver Police Department's use of deadly force has found that the department has made great strides since the controversial shootings of Frank Lobato and Paul Childs but still has some work to do.

The report concludes that as little as three years ago there were systemic problems in how the department investigated deadly force and in the department's policies governing deadly- force standards.

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July 14, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Sunday, July 13, 2008

Candidates' views differ on detainee policy

51954mccainnobama_embedded_prod_aff For months now, John McCain and Barack Obama have peppered their campaign speeches with pledges to close the Guantánamo Bay prison camps.

Both have cast the detention center as harmful to U.S. foreign policy and a source of international alienation. Both say they would move the terrorism suspects to U.S. soil.

But delve a little deeper, and that's where the harmony ends.

An analysis of McCain campaign statements and policy proposals shows that the Vietnam-era prisoner of war would seek to beef up the Bush administration's detainee doctrine.

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July 13, 2008 in Homeland Security | Permalink | Comments (0) | TrackBack (0)