CrimProf Blog

Debra A Livingston Paul J. Kellner Professor of Law

  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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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]

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.

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Read full article here. [Brooks Holland]

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.

Prosecutors are asking for a 20-year prison term, the maximum he could receive under the law and much higher than the term of nine to 11 years called for under federal sentencing guidelines.

In a letter Nachman wrote from jail to the director of the Foreign Service pleading with him to intervene and get the charges dropped, Nachman explained the cultural differences as he sees them.

"In the Congo, women develop quickly, both physically and emotionally, due to the substantial responsibility society places on them from early childhood," Nachman wrote. "In Kinshasa, the vast majority of teenagers are sexually active with men that are substantially older. ... Their main concern is marrying young girls to men with financial stability, a concern dating thousands of years and cutting across cultural lines."

The case has been unusual on several fronts. It includes allegations that Nachman pressured attractive female visa applicants in Brazil for sex. Nachman admitted that he had sex with two women whom he met in the visa application process, but he denied coercing them and he was never charged in the matter.

Another odd twist is Nachman's prominence in the nudist community: In the 1990s, when attending law school at the University of Pennsylvania, Nachman led several public demonstrations advocating nudity. Nachman now contends that he was targeted for investigation in part because of his well-known affinity for the nudist lifestyle.

Read full article here. [Brooks Holland]

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.

Ms. Love, who was the United States pardon attorney from 1990 to 1997, said the backlog was overwhelming the vetting system, meaning that many petitions might not reach Mr. Bush’s desk before he leaves office.

“I have cases that date from the Clinton administration,” Ms. Love said. “I have cases that I filed in the last two or three years and have not even gotten any word about the first step of the investigation being authorized. It’s unbelievable.”

A Justice Department office with about half a dozen officials reviews petitions and recommends whether requests should be granted, although presidents are free to disregard its views. Under the Constitution, Mr. Bush can issue a commutation, which reduces a sentence, or a pardon, which forgives an offense and erases the criminal record, to anyone.

But even if a felon’s petition reaches the Oval Office, legal specialists said that most of those seeking mercy from Mr. Bush should expect to be disappointed.

The Bush administration took office amid heavy criticism of Mr. Clinton’s last-minute pardons, most notably to Marc Rich, the fugitive financier whose ex-wife had donated to Mr. Clinton’s presidential library.

Against that backdrop, Mr. Bush has made little use of his clemency powers, granting just 157 pardons and six commutations. By comparison, over eight years in office President Ronald Reagan granted clemency 409 times and Mr. Clinton 459 times. More than half of Mr. Clinton’s grants came in his final three months.

Fred F. Fielding, the White House counsel, declined to be interviewed about clemency plans.

Read full article here. [Brooks Holland]

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.

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”

Australia also uses a balancing test. It considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence. “Any unfairness to the particular accused” in most cases, the High Court of Australia wrote in 1995, “will be of no more than peripheral importance.”

The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found. In the last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia and Washington state suppressed evidence in cases involving drugs, guns, burglary and child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the decentralized nature of American law enforcement, with thousands of local police departments around the nation, requires a more rigorous and consistent approach to deterring misconduct. The law enforcement systems in Canada and England, by contrast, are notably less fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison’s car in Ontario thought the car should have had a front license plate, even though the car was from Alberta, which does not require one. “We respect the decision of the courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial Police, but “their criticism alone does not by default lead to an internal complaint.”

Supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment, which bans unreasonable searches and seizures.

Read the full article here. [Brooks Holland]

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.

The national research took about eighteen months and has now been completed by American University, Arnold & Porter LLP, and the College of William and Mary. The report and recommendations of the committee are nearing completion and are expected to be released in fall 2006. While the report will be written primarily for a non-lawyer audience of policymakers, this Article is more comprehensive. It covers the research in all fifty states -- something not done for more than three decades -- and lays out recommendations for change. The research reveals that the states face overarching, common issues in meeting the constitutional obligation established in Gideon v. Wainwright and in later federal and state cases. The report shows compelling evidence of a true constitutional crisis, as detailed in this Article. [Mark Godsey]

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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.

"With each passing day, Michigan's public defense system is crumbling under the strain of tight budgets and under-resourced systems, and Michigan residents are bearing this burden," said David Carroll, research director for NLADA. "By forcing counties to pay for and administer the public defender system, the state has wasted taxpayer money and increased the likelihood of wrongful convictions and lawsuits. The time is now for Michigan lawmakers to right this wrong."

Despite the U.S. Supreme Court's decision in Gideon v. Wainright establishing that states are constitutionally required to provide for public defense, Michigan's current system requires counties to use their own budgets. With many counties at their breaking points, Michigan courts increasingly value speed over quality, leading many advocates in the Ottawa County criminal justice community to describe the system as providing "McJustice." The report found that counties across the state failed to meet the vast majority of the American Bar Association's Ten Principles, which are considered the national standard for indigent defense. In particular, many residents facing district court trials never have the opportunity to meet with a public defender, and when they do, these meetings are often last-minute and non-confidential.

In addition to fiscal mismanagement, the lack of quality public defenders puts public safety at risk. When the innocent are imprisoned, the real criminals remain on the street. In recent years, Michigan has had a series of wrongful convictions overturned, including the well-known case of Eddie Joe Lloyd who was exonerated of rape and murder by DNA evidence after 17 years imprisonment. The true perpetrator of the crime remains at large.

"A fully funded public defender system protects Michigan families and communities," added Carroll. "State policymakers must take immediate, decisive steps to begin funding and administering this vital program on behalf of all Michigan residents."

The findings are based on a year-long study of 10 counties chosen by a Michigan-based advisory group consisting of representatives from a number of state and county legal offices and groups, including the State Court Administrator's Office, the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan, as well as the state Supreme Court and trial-level judges. NLADA, in partnership with the Michigan State Bar Association, conducted the study at the request of state lawmakers. [Mark Godsey]

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Two years of freedom, after 23 years behind bars

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.

Eyewitness identification is the leading cause of wrongful conviction, and there are convictions everyday in the U.S. based only on identification. There are ways to reduce inaccuracy and prevent injustices from occurring today. Click here to learn about the Innocence Project’s recommended reforms.

Briscoe was represented by pro bono attorneys affiliated with Centurion Ministries, a non-profit legal organization based in New Jersey. Centurion and the Innocence Project are two of four organizations accepting wrongful conviction cases from across the country. View a list of innocence organizations here. [Mark Godsey]

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

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.

Armstrong played for Dotson a taped interview with his nephew, Cecil Dotson Jr., who was at Le Bonheur Children's Medical Center recovering from head wounds.

"Who did it?" Sgt. Caroline Mason asked on the recording.

"Junior," Cecil Jr. replied.

Jessie Dotson, who spent 14 years in state prison for second-degree murder, was known as Junior in the family.

The child witness ultimately helped Armstrong elicit Dotson's confession.

The day of the killings, Dotson told Armstrong, he and his brother, Cecil Dotson, were together. "We got to arguing," Dotson told him. "We argued all the way to the house. Then we got out and went in the house. He was still shooting off."

Soon, Cecil reached for a 12-gauge shotgun behind the couch, Dotson said.

"I just started shooting," Dotson explained.

"How many times did you shoot him?" Armstrong asked.

"I don't know."

"Then what?"

"The kids saw me."

"Then what happened?"

"I tried to get rid of the kids. ... I stuck them."

After the confession, Dotson crossed his arms and looked down.

"I wanna talk to my momma," he said.

Four adults, including 30-year-old Cecil, and two children were killed during the March 2 mass murders. The adults were shot multiple times using two different guns and the children were stabbed and beaten. Three children, though critically wounded, survived the brutal attacks.

Dotson is charged with six counts of first-degree murder and three counts of attempted first-degree murder in the attacks. [Mark Godsey]

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

                          

San Quentin, Calif. - 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.

"Even if we have the death penalty, we can stand up for some form of humane treatment for these people," says Klein, who lives in Marin County, one of the most liberal counties in the country.

Local politicians see things differently. They're pushing Gov. Arnold Schwarzenegger (R) to move at least some of the death-row prisoners away from the county, perhaps to desert prisons that are hours from the state's largest cities.

The debate is pitting liberals against liberals and shining a light on California's hundreds of death-row inmates, who are more likely to die of natural causes than face the gas chamber or lethal injection.

San Quentin Prison, built in 1852, sits on the water just north of San Francisco, about 20 minutes by car from the Golden Gate Bridge. Currently, 635 men await execution behind the Gothic turrets of the prison's castle-like buildings.

"Even if we have the death penalty, we can stand up for some form of humane treatment for these people," says Klein, who lives in Marin County, one of the most liberal counties in the country.

Local politicians see things differently. They're pushing Gov. Arnold Schwarzenegger (R) to move at least some of the death-row prisoners away from the county, perhaps to desert prisons that are hours from the state's largest cities.

The debate is pitting liberals against liberals and shining a light on California's hundreds of death-row inmates, who are more likely to die of natural causes than face the gas chamber or lethal injection.

San Quentin Prison, built in 1852, sits on the water just north of San Francisco, about 20 minutes by car from the Golden Gate Bridge. Currently, 635 men await execution behind the Gothic turrets of the prison's castle-like buildings. [Mark Godsey]

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City launches effort to curb killings

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.

"That's a shame that people are getting shot and killed every day," said Glover, a mother of two who has lived in the Academy neighborhood all of her life. "We need to get all of the bad people out of the neighborhood. It should (work). I hope so. It could if they stay on it and if they have people like me calling police when they see things." Police launched the homicide crackdown plan late last week, focusing on neighborhoods where 21 of the city's 89 homicides have occurred this year. Beat officers are working together with drug, gang and juvenile officers to interact more with community members as they try to slow violence, prevent retaliatory killings and dig up tips on unsolved crimes.

"We're going to make sure the good people see us and the bad people feel us," Mokwa said. [Mark Godsey]

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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."

Mustachioed Randy Kraft, condemned Orange County slayer of 16 young men, is looking for pen pals. So is convicted Northern California serial killer Charles Ng, who describes himself as shy and offers to sell his wildlife drawings.

Tattooed and muscled Richard Allen Davis, whose abduction and murder of 12-year-old Polly Klaas helped trigger California's "three strikes" law, is not selling his hobby crafts but wants correspondents.

"I dug my grave -- now I must lay in it," he says of his life.

Prisoners are barred from direct computer access that officials say could allow them to threaten witnesses or orchestrate crimes. Thanks to supporters and commercial services, however, many of the state's 673 condemned inmates now have pen-pal postings and personalized Web pages with their writings, artwork and photos of themselves -- often accompanied by declarations of innocence and pleas for friendship and funds.

Although some inmates utilize sites in the U.S., the nonprofit Canadian Coalition Against the Death Penalty has created Web pages or pen-pal ads for more than 100 California death row inmates. The site, unlike some others, is free. [Mark Godsey]

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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?

Late last week, authorities in Boulder, Colo., announced that a new technique for extracting DNA with greater sensitivity had yielded an irrefutable truth: The family didn't do it. You could almost hear an MSNBC anchor pause in mid-wisecrack and, while touching two fingers to an earpiece in puzzlement, say back to the control-room producer who had given him the update: "Huh?"

The parents and sibling of JonBenet Ramsey, the 6-year-old found dead in the basement of the family home in 1996, were definitively ruled out as suspects in the murder, which remains unsolved.

In a letter to John Ramsey, JonBenet's father, Boulder District Atty. Mary Lacy wrote, "We do not consider your immediate family, including you, your wife, Patsy, and your son, Burke, to be under any suspicion in the commission of this crime," according to published reports. Patsy Ramsey died in 2006, still suspected by many of having murdered her child. [Mark Godsey]

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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.

"I suppose if I were convinced that America is a safer place because I get hassled at the airport, I might put up with it," Robinson said. "But I doubt it."

He added: "I expect my story is similar to hundreds of thousands of people who are on this list who find themselves inconvenienced."

The government calls its watch list one of the most effective tools in its fight against terrorism. It was created after the Sept. 11, 2001, attacks to consolidate 12 existing lists and make sure no terrorists slipped through the cracks -- whether when entering the country or if otherwise stopped for questioning. Last year, congressional investigators found "general agreement that the watch list has helped to combat terrorism."

Other audits of the watch list over the last several years, however, have concluded that it has mistakenly flagged innocent people whose names are similar to those on it. More than 30,000 airline passengers had asked the Homeland Security Department to clear their names from the list as of October 2006. Additionally, as many as 20 suspected terrorists were left off the list as of last year due to a technology glitch.

Chad Kolton, a spokesman for the FBI's Terrorist Screening Center, which maintains the list, said the government is working to fix the gaps. [Mark Godsey]

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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: zilbereh@email.uc.edu.  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.

Download Petition for Certiorari_in_U.S. v. Joseph Hirko.pdf

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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.

Over the past decade, an increasing number of states have adopted laws allowing juveniles to be charged as adults for certain serious crimes; prosecutors in these jurisdictions often have the last word on charging decisions. Those jurisdictions often also require that these juveniles be held in adult facilities. Under the proposed bill, even juveniles charged as adults must be held in juvenile facilities or out of "sound and sight" of adults in adult facilities unless a judge specifically orders otherwise. A judge must take into account the alleged offender's age, his physical and mental maturity, and the nature of the crime, among other factors; a judge must review every 30 days the decision to send a juvenile to an adult facility. This approach is sensible. The bill should be amended to explicitly allow prosecutors and other state officials to flag for the judge juveniles they believe would be a danger to other minors and so would be better held in adult quarters. [Mark Godsey]

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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.

Though those problems have been largely corrected, some issues remain, said the report by the Los Angeles-based Police Assessment Resource Center, a nonprofit hired for $150,000 by Richard Rosenthal, Denver's independent police monitor, to review the DPD's policies.

The report recommends policy changes regarding the use of impact weapons, such as police flashlights and saps — flat leather batons also known as blackjacks.

It also said the department should review how it issues commendations to officers. Officers involved in fatal shootings have received the police department's highest award, the medal of honor, even though they used poor tactics, the report found.

"We conclude that the DPD today meets and even exceeds national standards in many areas, making the DPD one of a handful of American police departments becoming a national leader," the report says. "Yet it was not always so; and up to as little as three or four years ago, as this report will demonstrate, there was much to improve in the quality and thoroughness of internal investigations of deadly force incidents."

Rosenthal hired the center to conduct a similar study when he worked in a monitor position in Portland, Ore.  [Mark Godsey]

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Candidates' views differ on detainee policy

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.

And Barack Obama would seek to dismantle some of its key tenets.

So much so that Obama welcomed the 5-4 U.S. Supreme Court decision June 12 that restored to war-on-terrorism captives at Guantánamo the right to sue for their freedom in U.S. courts.

The presumed Democratic presidential candidate called it ``an important step toward reestablishing our credibility as a nation committed to the rule of law.''

In contrast, his Republican rival, McCain, echoed White House sentiment to condemn the Supreme Court for handing down ``one of the worst decisions in the history of this country.''

''We made it very clear that these are enemy combatants,'' he said. ``They do not and never have been given the rights that citizens of this country have.''

At McCain campaign headquarters, national security advisor Randy Scheunemann bristles at the notion that the Arizona senator has walked in lockstep with Bush administration policy.

Rather, Scheunemann said, McCain has been a maverick. He publicly advocated closure of the camps long before the Bush administration, and has pledged in his campaign to do so to enhance this country's international standing. [Mark Godsey]

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