CrimProf Blog

Carol A. Chase: Pepperdine Professor of Criminal Law

Professor of Law
B.A., summa cum laude, University of California, Los Angeles, 1975
J.D., University of California, Los Angeles, 1978

View a list of Professor Chase's recent writings

Before joining the Pepperdine faculty, Professor Chase was an assistant U.S. attorney for the criminal division in Los Angeles. She has been an associate in the Los Angeles offices of Hughes, Hubbard & Reed, and Skadden, Arps, Slate, Meagher and Flom. She is a member of the American Bar Association, the California State Bar, and is admitted to practice in the Ninth Circuit Court of Appeals, and the U.S. District Court for the Central and Eastern Districts of California.

Professor Chase regularly teaches Criminal Law, Criminal Procedure, Evidence, and Trial Practice, and has been honored as a Luckman Distinguished Teaching Fellow. She has commented extensively in the media on various legal topics, including the proceedings in People v. Simpson and People v. Jackson appearing for CNN, FOX-TV, E! Entertainment, KCET, and CBS-TV (Canada) and providing radio commentary for BBC (UK).

Her publications include a trial advocacy textbook, The Art & Science of Trial Advocacy (Anderson 2003), which she co-authored with Professors Perrin and Caldwell. In addition she has published "Bad Dream Team? The Simpson Defense Employs a Cynical Strategy," Los Angeles Daily Journal, February 1995; "Simpson Sideshow," Los Angeles Daily Journal, March 1995; "Police Action," Los Angeles Daily Journal, March 1995 (co-author); "Balancing Defendants' Confrontation Clause Rights Against the Need to Protect Child Abuse Victims," Los Angeles County Bar Association Litigation Newsletter; "Confronting Supreme Confusion: Balancing Defendants' Confrontation Clause Rights Against the Need to Protect Child Abuse Victims," 1993 Utah Law Review 407 (1993); "The Unruly Exclusionary Rule: Heeding Justice Blackmun's Call to Examine the Rule in Light of Changing Judicial Understanding About its Effects Outside the Courtroom," 78 Marquette Law Review 45 (1994) (co-author); "Hearing the 'Sounds of Silence' in Criminal Trials: A Look at Recent British Law Reforms with an Eye Toward Reforming the American Criminal Justice System," 44 Kansas Law Review 929 (1996); "A Challenge for Cause Against Preemptory Challenges in Criminal Proceedings," 19 Loyola International and Comparative Law Journal 507 (1997) (co-author); "If It's Broken, Fix It: Moving Beyond the Exclusionary Rule--A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule," 83 Iowa Law Review 669 (1999) (co-author); "It is Broken: Breaking the Inertia of the Exclusionary Rule," 26 Pepperdine Law Review 971 (1999) (co-author); "Privacy Takes a Back Seat: Putting the Automobile Exception Back on Track After Several Wrong Turns," 41 Boston College Law Review (1999); "Rampart: A Crying Need to Restore Police Accountability," Loyola Law Review (2000); "The Five Faces of the Confrontation Clause," 40 Houston Law Review 1003 (2003); "Is Clawford a 'Get out of Jail Free Card' for Batterers and Abusers? An Argument for a Narrow Definition of 'Testimonials'" 84 Oregon Law Review 1093 (2006); and "Cars, Cops and Crooks: A Reexamination of Belton and Carroll with an Eye Towards Restoring Privacy Protection to Automobiles" 85 Oregon Law Review 101 (2007).

Professor Chase has also worked as a volunteer with elementary and high school children, teaching them about the American justice system and assisting them in participating in mock trials. She is an active volunteer in children's sports and holds an "F" license to coach soccer. [Mark Godsey]

More Information Carol A. Chase 

Latino-vs.-black violence drives hate crimes in L.A. County to 5-year high

The County Human Relations Commission reports a 28% increase last year, with assaults and vandalism the leading categories.

Hate crimes in Los Angeles County rose to their highest level in five years last year, led by attacks between Latinos and blacks, officials said Thursday.

The annual report by the Los Angeles County Human Relations Commission showed hate crimes rose by 28%, to 763, with vandalism and assault leading the way.

In what commission Executive Director Robin Toma called an alarming trend, hate crimes based on race, religion and sexual orientation all rose, increasing against nearly all groups -- including blacks, gays, Jews, Mexicans, whites and Asians -- even as crime in general declined.

The largest number of racial hate crimes involved Latino suspects against black victims, followed by black suspects against Latino victims. Latinos also made up the largest number of suspects in hate crimes based on sexual orientation. Whites were the leading suspects in religion-based incidents. Overall, blacks made up nearly half the hate crime victims, totaling 310.

"What we're seeing is the democratization of hate crimes," said Brian Levin, who directs the Center for the Study of Hate and Extremism at Cal State San Bernardino. "We're not only seeing a diversification of victims but also increased diversification of offenders."

Police agencies report hate crimes to the county, but because departments vary on when they pursue hate-crime charges, variations in hate-crime numbers can stem from an actual increase in crimes or from changes in reporting. In this case, experts said they believed that hate crimes themselves, not just the reporting of them, are rising.

Levin said other areas of the country have reported similar increases, including a 30% increase in New York last year; a 10-year study published last fall found that hate crimes in New York began to increase two years ago after declining over several years. [Mark Godsey]

Continue Reading "Latino-vs.-black violence drives hate crimes in L.A. County to 5-year high"

A City’s Police Force Now Doubts Terror Focus

PROVIDENCE, R.I. — Nearly seven years after the attacks of Sept. 11, 2001, the war on terror in this city has evolved into a quiet struggle against a phantom foe.

Last year, when a sailor slipped over the side of a Turkish merchant ship in the city’s port, a Providence police detective assigned to a joint terrorism task force was quickly alerted, reflecting a new vigilance since the Sept. 11 attacks. Alerts also went out to immigration, customs, the F.B.I. and other federal agencies, but the case went cold.

Another alarm was sounded over a suspicious man of Indian descent who asked a metals dealer about buying old power tools and hair dryers. The lead petered out when the prospective buyer told a police detective in an interview that he wanted to refurbish the equipment for resale overseas.

Like most of the country’s more than 18,000 local law enforcement agencies, the Providence Police Department went to war against terror after Sept. 11, embracing a fundamental shift in its national security role. Police officers everywhere had been shaken by disclosures that the police in Oklahoma, Florida, Maryland and Virginia had stopped four of the Sept. 11 hijackers at various times for traffic violations, but had detected nothing amiss.

Over the years since, police officials in Providence joined with state and federal authorities in new information-sharing projects, met with local Muslim leaders and urged their officers to be alert for anything suspicious. Flush with federal domestic-security grants, the police department acquired millions of dollars’ worth of hardware and enrolled officers in training courses to detect and respond to a terrorist attack.

But much has changed. Now, police officials here express doubts about whether the imperative to protect domestic security has blinded federal authorities to other priorities. The department is battling homicides, robberies and gang shootings that the police in a number of cities say are as serious a threat as terrorism.

The Providence police chief, Col. Dean M. Esserman, said the federal government seemed unable to balance antiterror efforts and crime fighting.

“Our nation, that I love, is like a great giant that can deal with a problem when it focuses on it,” said Colonel Esserman, who became chief in 2003 when he was hired by Mayor David N. Cicilline. “But it seems like that giant of a nation is like a Cyclops, with but one eye, that can focus only on one problem at a time.”

“The support we had from the federal government for crime fighting seems like it is being diverted to homeland defense,” he added. “It may be time to reassess, not how to dampen one for the other, but how not to lose support for one as we address the other.” [Mark Godsey]

Continue Reading "A City’s Police Force Now Doubts Terror Focus"

Prisoners' time spent on death row doubles

The time prisoners spend on death row has nearly doubled during the past two decades. Legal experts predict it will rise further as states review execution procedures and prisoners pursue lengthy appeals. Waits rose from seven years in 1986 to 12 years in 2006, the latest Justice Department statistics show. In all five states with the most prisoners on death row — California, Florida, Texas, Pennsylvania and Alabama — offenders spend more time in prison than they did four years ago, a USA TODAY survey of state records through 2007 found.

In California, wait times average nearly 20 years, a state commission report in June says. It costs about $90,000 more per year to house a death row inmate than other inmates.

In April, the U.S. Supreme Court upheld Kentucky's lethal injection method, ending an informal halt to executions nationwide for seven months. Of the 10 states with the most prisoners on death row, five launched their own reviews of lethal injection procedures in the past two years. Those resulted in suspensions or delays in executions.

Fordham University law professor Deborah Denno says lethal injection challenges create a "snowball effect" that prolong death row waits. [Mark Godsey]

Continue Reading "Prisoners' time spent on death row doubles"

New Courses at New York Law School

This fall, New York Law School will be offering four courses from the  nine-course array of  its online, distance learning curriculum. Courses combine streaming videos, readings, weekly synchronous chat rooms (meaning, class meets at 8:45 on Monday night, say, but you can be home in your pajamas or at a coffee shop, not in Room A 602), asynchronous message boards and two full day live face-to-face seminars (in which skills issues are always emphasized). We've been offering these courses since 2000, and have grown the program this year from six to nine courses (about which we are very excited). Courses to be offered this fall (with chat room times listed) are these:

Survey of Mental Disability Law (Monday, 8:45-10 pm)

Sex Offenders (Tuesday, 8:45-10 pm)

Therapeutic Jurisprudence (Wednesday, 8:45-10 pm)

Americans with Disabilities Act: Law, Policy and Procedure (Thursday, 8:45-10 pm)

The courses are open to law students and to attorneys (CLE is available), and are also appropriate for mental health professionals, advocates, and activists. Currently, NYLS has formal partnerships with Southern University Law Center, Gonzaga Law School, Concord Law School, and McGeorge Law School; however, students from other law schools are encouraged to enroll for these courses as well.

For more information, please visit the website: www.nyls.edu/mdl <https://owa.nyls.edu/exchweb/bin/redir.asp?URL=http://www.nyls.edu/mdl>  (scope notes for each course can be found at http://www.nyls.edu/pages/167.asp), <https://owa.nyls.edu/exchweb/bin/redir.asp?URL=http://www.nyls.edu/pages/167.asp),>  or write for details to Liane Bass, Esq., senior administrator of the program (liane.bass@nyls.edu). Registration is now open for all courses. [From Michael Perlin][Mark Godsey]

Interesting Sentencing Hearings Due in California?

SFGate.com: A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled today.

In a case from San Mateo County, the justices ruled unanimously that a defendant who is about to be sentenced must be treated like any other witness - testifying under oath and subject to cross-examination by the prosecutor - when asking for leniency.

The ruling upheld a five-year prison sentence for Blaine Allen Evans, who was convicted in 2004 of receiving stolen property - a drill that had been taken from a van in Belmont.

During the sentencing hearing, Evans' lawyer argued for probation and drug treatment but did not call his client as a witness. Superior Court Judge Robert Foiles denied probation and was about to pronounce sentence when Evans asked to speak. Foiles refused and sentenced him to prison.

Such a statement, known as allocution, is allowed by statute in federal court, and was authorized by a California appellate court in another case in 1994. The state's high court overturned that appellate ruling today and said Evans, even if he was willing to appear as a witness, had waited too long to make his request.

The court said the right of allocution dates back to 17th century English law, when most felonies were punished by death and defendants had no right to testify or be represented by a lawyer. English and U.S. courts adopted the practice for non-capital as well as capital cases by the 19th century, allowing defendants to approach the bench before sentencing and argue for leniency without being subject to questioning by the prosecutor.

But the court said California law, since statehood in 1850, has been worded narrowly to authorize only a defendant's statement about why the judge should not "pronounce judgment" - that is, formally declare the defendant's guilt.

The law doesn't guarantee the right to make a similar unsworn statement seeking leniency, Justice Joyce Kennard said in the court's ruling. She said a trial judge could still decide to allow such a statement, but only if the prosecutor agreed.

Kennard also noted that defendants can also make their case to the court's probation office, which submits a report to the judge before sentencing.

Read rest of article here. [Brooks Holland]

Court Holds There is a Due Process Right to Post-Conviction Access to Evidence for DNA Testing

On Monday, Judge John Gleeson of the U.S. District Court for the Eastern District of New York issued an opinion concluding that "the Due Process Clause of the Fourteenth Amendment grants a convicted offender access to physical evidence for the purpose of DNA testing if it can be performed with negligible cost to the state and exculpatory results would undermine confidence in the outcome of trial."  [Mike Mannheimer]

The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants

"DNA has conclusively proven the innocence of hundreds of prisoners. Yet
thousands, if not tens of thousands, of innocent prisoners remain behind
bars because no DNA evidence exists or it has not yet been tested. George
Thomas's new book, The Supreme Court on Trial: How American Justice
Sacrifices Innocent Defendants, should be read by everyone who has an
interest in justice and in protecting innocent defendants from being sent to
prison. His carefully-developed thesis is that due process of law is most
importantly about protecting innocent suspects and defendants. He shows how
the current system too often fails at protecting the innocent, and he offers
a realistic blueprint for meaningful reforms.

The book examines how Western cultures have historically identified those
guilty of crimes. It begins with the ancient Greeks. By the time the book
reaches the late seventeenth century, it shows how the British and American
systems of justice had evolved into what lawyers call an "adversarial
system." In that kind of system, advocates for both parties examine and
cross-examine witnesses in court as the way to reveal the truth about guilt.

But Thomas asks, why would that be the best method to get at the truth? As
any lawyer can tell you, advocates do not really want an objective truth to
be revealed. Instead, they want the jury to buy their version of the truth.
In presenting the case, therefore, advocates often hide, distort, or deny
the truth. Thomas wisely quotes Jerome Frank's pithy critique of the
adversary system as "the equivalent of throwing pepper in the eyes of a
surgeon when he is performing an operation." The overarching question that
the book seeks to answer is whether there is a better way to process
criminal cases.

Thomas's writing style makes the book both accessible and fun to read. He
tells lively, engaging stories about the men and women behind the movements
in the law that he describes. Do you want to know how England developed
trial by jury? Then be entertained by a story of Henry II (great-grandson of
William the Conqueror) that begins when he transported an army in tiny boats
across the English Channel during a powerful winter storm. For evidence of
how juries too often fail innocent defendants, meet a black man wrongfully
convicted of raping a white woman in Chattanooga, Tennessee in 1906. Other
characters in the drama are the judge and lawyers who tried to provide him a
just and fair trial, the jury that cried out for more evidence but
ultimately convicted anyway, the sheriff who saved him once but not the
second time, and the mob that lynched him while his case was on appeal to
the United States Supreme Court.

Part of the received wisdom in legal and pop culture is that the American
adversarial system is superior to the continental systems where judges
conduct both the investigation and the trial, making lawyers largely an
after-thought. But Thomas examines this premise with fresh eyes and finds
much to value in the French system. Getting at the objective truth is the
goal of all the actors in the French criminal process, even the defense
lawyers. It is probably no coincidence that documented cases of wrongful
convictions in France are rare indeed.


The last chapter of Thomas's book describes a set of reforms that would
protect the innocent at a reasonable cost. Some of the proposed reforms are
both provocative and controversial. Thomas would, for example, create a pool
of "criminal trial specialists" who would be available both to prosecute and
defend criminal cases. It is difficult to imagine a state legislature taking
routine criminal cases away from district attorneys. Still, thinking about
that possibility gives us insight into the ways that our adversarial system
obscures the truth. Other reforms suggested by Thomas-for example, having
judges review criminal cases before trial and also after conviction-are more
likely to be adopted.

Most Americans think that the way Perry Mason or F. Lee Bailey tried
criminal cases is the only, or the best, way to uncover the truth. Thomas's
book is a powerful antidote to our complacent assumption that an adversarial
system can be trusted to deliver the goods on Truth." [From: Kris Bishop] [Mark Godsey]

Continue Reading "The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants"

Forensic Bioinformatics Expert Forum

From: Jason Gilder

Forensic Bioinformatics is holding its expert forum on the science of
DNA profiling on August 15 through 17. This will be our seventh annual
meeting in Dayton and I think you will agree that the program is one of
our best ever.

We have always been fortunate in being able to get prominent experts to
share their insights and learn from each other at this meeting and this
year is not an exception. Notable speakers for this year’s forum
include: Simon Ford; Christine Funk; Keith Inman; Roger Koppl; Larry
Mueller; Gabe Oberfield; D. Michael Risinger; Tania Simoncelli; and Bill
Thompson.

Last year’s introductory parallel session run by Christine Funk on the
first day of the forum was so successful that we have decided to build
the whole first day of this year’s meeting (Friday, August 15) around
it. This set of presentations for less experienced attorneys with cameo
appearances from world-renowned experts is intended to bring relative
new-comers to the field up to speed on the technical aspects of DNA
profiling so they can appreciate the cutting edge discussions about DNA
databases and statistical issues associated with DNA test results on the
days that follow.

This year we are again offering the opportunity to generate your own DNA
profile (from DNA extraction to statistical interpretation) during the
day of Thursday, August 14. Keith Inman from Forensic Analytical will be
running this special workshop using Wright State University facilities
for the first ten conference attendees who express an interest in this
$200 course.

Early registration ($295) for this year’s expert forum runs through
August 1 and represents a $130 savings over the full registration cost.
Groups of four or more can obtain a 20% discount and a limited number of
scholarships are still available upon request.

As always, much more information about the speakers, their talks and the
meeting in general (including registration forms and hotel information)
are available at the Forensic Bioinformatics web site
(www.bioforensics.com). I guarantee that you will find that this is one
of the best meetings that you have ever attended!

Criminal Justice: One Of The Enormous Non-Issues Of Presidential Politics

James Freedman

What happened to "the land of the free"?

In February, we reached an all-time high, with one out of 100 American adults incarcerated. Some groups are hit particularly hard; one out of every 15 African American adults were behind bars as of 2006.

In April, Adam Liptak started off a piece for the International Herald Tribune with two straightforward but powerful sentences: "The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners."

Despite all this, we've heard more political talk this election season about magazine covers and denounced pastors than we have about our plans for the more than 2 million Americans behind bars and the hundreds of thousands who will join them there in the next four years.

Maybe having millions locked up is an unfortunate necessity, an unavoidable fact of life in America as it has been constructed. But shouldn't we at least be talking about why we are, at best, vying for second place in the rankings of "most imprisoned" with China? Shouldn't we at least be talking on the national political level about the links, say, between education and imprisonment, between the failed war on drugs and our untenable incarceration rates?

During this race for the White House, the political discussions will focus on other issues, some arguably more important than criminal justice -- others clearly not.

Fact is, says Robert Weisberg, director of the Stanford Criminal Justice Center, "presidents don't have that much control over criminal justice. Almost all the action is at the state level."

Others are talking this time about the distinct possibility of a symbolic impact -- the first African-American president sending the message to millions of minority children that there truly is no limit to what they can accomplish.

"The United States has horrific incarceration rates, both with respect to the number of people we have in prison and the length of time we keep them there," said Elizabeth Rapaport, a professor at the University of New Mexico School of Law. "The effects on communities of color and in particular blacks are horrendous." [Mark Godsey]

Continue Reading "Criminal Justice: One Of The Enormous Non-Issues Of Presidential Politics"

Los Angeles police chief seeks to forgo reviews in some use-of-force cases

Los Angeles Police Chief William J. Bratton is seeking permission to make the department's review of officer-involved shootings and other use-of-force incidents less punitive for some officers who violate department rules.

The Los Angeles Police Commission, which oversees the Police Department, is poised to vote today on whether to approve Bratton's proposed changes to how he and his command staff deal with officers who use serious force during altercations.

The move would alter a review system used by the department for more than 25 years. And it comes as part of a recent, ongoing shift within the LAPD away from hard-nosed discipline toward a more nuanced approach of "strategy before penalty."

"I imagine a department full of thoughtful, creative police officers who aren't confused about doing the right thing because they understand the principles behind what is expected of them," Deputy Chief Mark Perez, head of the department's Professional Standards Bureau, said about the department's new approach to discipline.

Currently, an officer who is found to have violated department policies regarding a "categorical use of force" -- incidents such as when an officer fires a weapon, strikes someone in the head or causes someone to be hospitalized -- is automatically subjected to a formal review to determine what, if any, discipline should be imposed. Under the proposed changes, the chief would be allowed to sidestep that review and, instead, order the officer to receive training or some other less punitive result.

"The revised adjudication process allows the department to use whatever means are reasoned to most likely ensure future compliance," Bratton wrote to commissioners.

Commissioner Alan Skobin voiced support for the idea. He said it would help ensure that the labor-intensive, time-consuming discipline reviews were conducted only in cases in which discipline was necessary. He emphasized that the new rules would not make it more difficult to detect officers who used force too frequently since each use-of-force incident would be documented on an officer's record regardless of whether the chief called for a disciplinary review. [Mark Godsey]

Continue Reading "Los Angeles police chief seeks to forgo reviews in some use-of-force cases"

L.A.'s homicide toll is slightly below that of the same 2007 period

The LAPD reported a nearly 40% increase in homicides in the first 21/2 months of 2008. But as of Monday, 204 people have been killed in the city -- 2% fewer than that date last year.

After rising nearly 40% earlier this year, killings in the city of Los Angeles have fallen below last year's levels, according to LAPD statistics.

The Police Department said there were 204 killings in 2008 as of Monday evening, four fewer than were reported over the same period last year. That represented a 2% decline overall, Sgt. Ruby Malachi said.
Officials were quick to point out that the percentage drop was so small that a few more homicides this week could push the total number over 2007 levels.

Still, they said the statistics represented a shift from mid-March, when Los Angeles seemed poised to see a major increase in killings after five years of historic declines.

"We see fluctuations throughout the year, and sometimes those spikes we see are very disturbing," said LAPD Assistant Chief Earl Paysinger.

"But at the end of the day, we still see a marked degradation in crime. And that's the goal."

He noted that the numbers had declined significantly during the summer, typically the busiest period of the year for crime.

UC Irvine professor George Tita said that despite the increase in killings earlier in the year, the LAPD was not facing a fundamental change in the pattern of violence in the city.

"You can't extrapolate a trend from looking at a day, a week or even a month," Tita said. "Fortunately homicides are rare events; they are not uniformly distributed across time. You are going to get clumps of incidents. When you are in the middle of one of those clumps, there is a temptation to say there's something to it. In fact, it's just a clump unrelated to other events in the time series."

Overall, violent crime this year was down 7% as of July 12, according to the LAPD. The number of shots fired was down 28%, as was the number of victims hit by gunfire -- from 1041 to 874, a decline of 16% for the same time period.

About half of the LAPD's 19 divisions saw slight increases in homicides this year: the Devonshire, Foothill, North Hollywood and West Valley areas in the San Fernando Valley; the Hollywood, Pacific and Wilshire divisions on the Westside; the Northeast and Rampart in Central L.A.; and the Southeast Division in South Los Angeles.

Among the divisions that have seen declines: Newton, Southwest, 77th Street, Van Nuys, Hollenbeck and Mission. [Mark Godsey]

Continue Reading "L.A.'s homicide toll is slightly below that of the same 2007 period"

ACLU files suit challenging Ala. law barring many felons from getting voting rights restored

MONTGOMERY, Ala. (AP) _ After serving eight months behind bars for a conviction of receiving stolen property, Annette McWashington Pruitt was excited about the prospect of being able to vote again.

One of her first stops after being released from prison was the Jefferson County Voter Registrar's Office. But she was told she was a convicted felon and couldn't vote.

"I couldn't believe it," Pruitt said. "They continued to give me numbers to call. It was very much demeaning."

Now she has gone to court to try to get her right to vote restored.

On Monday, the American Civil Liberties Union filed a lawsuit in Montgomery Circuit Court on behalf of Pruitt and two other ex-felons seeking restoration of their voting rights. The lawsuit claims Alabama law is unclear on the subject, citing a bill passed by the Legislature in 2003 that says felons can vote unless convicted on "crimes of moral turpitude," but never defines those crimes.

The Legislature adopted a list of 15 crimes, including murder, treason and some sex crimes, that would exempt a person from having their voting rights restored. But the lawsuit says it's up to the state's voter registrars and the attorney general to decide in other cases if a person's rights can be restored.

"Two voter registrars might come to different conclusions," said Sam Brooke, an attorney for the ACLU.

The lawsuit asks that convicted felons not be denied the right to voted unless they were convicted of one of the crimes on the list adopted by the Legislature.

The lawsuit also asks that the state not deny a convicted felon the right to vote because they have not paid all court ordered fines and restitution. Brooke said that requirement makes it easier for convicts from wealthier backgrounds to get their rights restored.

"We believe this is a modern day version of the poll tax," Brooke said. [Mark Godsey]

Continue Reading "ACLU files suit challenging Ala. law barring many felons from getting voting rights restored"

Tech release of records omits key materials

Virginia Tech will withhold officials' notes and some details concerning the shooter

BLACKSBURG -- Some of the deepest secrets about Seung-Hui Cho's killing rampage at Virginia Tech on April 16, 2007, may never be made public.

Disclosure of the essential facts of the tragedy in a public archive was a key part of a settlement last month with victims' families, reached after the university released thousands of pages of internal documents to their lawyers.

But a Richmond Times-Dispatch review of an estimated 20,000 pages of those documents, obtained through a Freedom of Information Act request, found almost nothing about key issues the families wanted to be made public. Tech withheld from the newspaper some of the documents it released to the families.

The university will keep secret key material the families wanted to become public, including notes of the university's most senior officials from the emergency meeting of the Policy Group that morning, spokesman Larry Hincker said. Virginia Tech also will not release a cardboard box's worth of records about Cho, including his professors' notes and e-mails expressing concerns about him and seeking help for him.

However, Hincker said e-mails to and from 150 university administrators and faculty will for the first time be disclosed in the archive, giving the public a behind-the-scenes glimpse at how Tech officials responded to the unfolding crisis.

The documents Virginia Tech released to The Times-Dispatch that will eventually be part of its archive on the events of April 16, 2007, include a suggestion of a connection Cho had with West Ambler Johnston Hall, the site of the first two killings. Police have said they knew of no reason why he picked the dorm for his first attack.

The documents also included a report that there were unlocked entrances to Norris Hall on April 16 as Cho carried out his attack. Police were delayed precious minutes trying to break open three doors Cho chained shut. They entered after shooting out the lock of another door.

"The families expect that Virginia Tech will make full disclosure so that people presently and future generations can understand in full the circumstances surrounding what is the largest massacre on a campus in U.S. history," said Douglas Fierberg, one of the lawyers who negotiated the settlement.

The first document on top of the first box of documents released by Tech last week was a letter from Fierberg listing 21 categories of documents to be produced. [Mark Godsey]

Continue Reading "Tech release of records omits key materials"

May Pardons Be Granted Preemptively?

Slate.com: With six months to go before President Bush leaves office, the White House is receiving a flurry of pardon applications. The New York Times reported that "several members of the conservative legal community" are pushing for the White House to grant pre-emptive pardons for officials involved in counterterrorism programs. Wait—can a president really pardon someone who hasn't even been charged with a crime?

Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.

Read full article here. [Brooks Holland]

How reliable is DNA in identifying suspects?

State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles.

The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people. The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.

In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.

As word spread, these findings by a little-known lab worker raised questions about the accuracy of the FBI's DNA statistics and ignited a legal fight over whether the nation's genetic databases ought to be opened to wider scrutiny.

The FBI laboratory, which administers the national DNA database system, tried to stop distribution of Troyer's results and began an aggressive behind-the-scenes campaign to block similar searches elsewhere, even those ordered by courts, a Times investigation found.

At stake is the credibility of the compelling odds often cited in DNA cases, which can suggest an all but certain link between a suspect and a crime scene.

When DNA from such clues as blood or skin cells matches a suspect's genetic profile, it can seal his fate with a jury, even in the absence of other evidence. As questions arise about the reliability of ballistic, bite-mark and even fingerprint analysis, genetic evidence has emerged as the forensic gold standard, often portrayed in courtrooms as unassailable.

But DNA "matches" are not always what they appear to be. Although a person's genetic makeup is unique, his genetic profile -- just a tiny sliver of the full genome -- may not be. Siblings often share genetic markers at several locations, and even unrelated people can share some by coincidence.

No one knows precisely how rare DNA profiles are. The odds presented in court are the FBI's best estimates.

The Arizona search was, in effect, the first test of those estimates in a large state database, and the results were surprising, even to some experts.

Defense attorneys seized on the Arizona discoveries as evidence that genetic profiles match more often than the official statistics imply -- and are far from unique, as the FBI has sometimes suggested.

Lawyers seek searches

Now, lawyers around the country are asking for searches of their own state databases.

Several scientists and legal experts as well want to test the accuracy of official statistics using the nearly 6 million profiles in CODIS, the national system that includes most state and local databases.

"DNA is terrific and nobody doubts it, but because it is so powerful, any chinks in its armor ought to be made as salient and clear as possible so jurors will not be overwhelmed by the seeming certainty of it," said David Faigman, a professor at UC Hastings College of the Law, who specializes in scientific evidence.

FBI officials argue that, under their interpretation of federal law, use of CODIS is limited to criminal justice agencies. In their view, defense attorneys are allowed access to information about their specific cases, not the databases in general.

Bureau officials say critics have exaggerated or misunderstood the implications of Troyer's discoveries.

Indeed, experts generally agree that most -- but not all -- of the Arizona matches were to be expected statistically because of the unusual way Troyer searched for them. [Mark Godsey]

Continue Reading "How reliable is DNA in identifying suspects?"

U.S. Is Alone in Rejecting All Evidence if Police Err

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.” [Mark Godsey]

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Felons Seeking Bush Pardon Near a Record

WASHINGTON — 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. [Mark Godsey]

Continue Reading "Felons Seeking Bush Pardon Near a Record"

IMPD unveils an 'integrity plan'

Department tries to fix its image after officer arrests'

Narcotics detectives ripping off drug dealers. A police officer selling a gun to a felon informant. Another officer helping his wife run an illegal escort service.

In the past four months, criminal misconduct allegations have been leveled against a half-dozen Indianapolis Metropolitan Police Department officers.

Now, the department is grappling with the fallout -- which includes the dismissal of at least 20 court cases involving the officers -- and is trying, with Mayor Greg Ballard, to determine what changes are needed to prevent such misconduct in the future.

IMPD brass took the first public step in answering that question Thursday with the unveiling of a new "integrity plan."

The plan calls for increasing supervision, tightening oversight of evidence collection, reinstating more widespread polygraph testing of officers, creating a department recruiter position and instituting mandatory performance evaluations.

Some of these provisions boost informal practices to department law. Other changes were in the works for months, IMPD Chief Michael Spears said. A few came in direct response to the scandals that have shaken the department.

All are aimed at rebuilding community trust.

"We won't hesitate to use these measures that we announce today and others to make sure the bad apples are plucked out and tossed aside," Public Safety Director Scott Newman said in a statement.

Legal observers and community leaders reacted favorably Thursday, saying the plan was a good one -- but that some provisions should have been in effect long ago.

"This is a move toward a more professional and efficient police department," said longtime legal observer Henry Karlson, a professor of criminal law at Indiana University School of Law-Indianapolis. "A good move. . . . Bureaucratically speaking, this is warp 7." [Mark Godsey]

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State Supreme Court narrows probable-cause grounds in pot case

Law-enforcement officers who detect the odor of marijuana from a vehicle can't arrest all of the occupants, the state Supreme Court ruled Thursday.

In a unanimous ruling, the court determined the smell of pot isn't enough probable cause to warrant the arrest and search of everyone inside a car. While smell alone may be reason for a vehicle search, the court determined, it doesn't warrant handcuffing passengers without other supporting evidence.

Defense attorneys on Thursday called it a right-to-privacy victory. Law-enforcement officers say it won't greatly affect the way they make arrests.

The ruling stems from a traffic stop in April 2006 in Skagit County.

Law-enforcement officers who detect the odor of marijuana from a vehicle can't arrest all of the occupants, the state Supreme Court ruled Thursday.

In a unanimous ruling, the court determined the smell of pot isn't enough probable cause to warrant the arrest and search of everyone inside a car. While smell alone may be reason for a vehicle search, the court determined, it doesn't warrant handcuffing passengers without other supporting evidence.

Defense attorneys on Thursday called it a right-to-privacy victory. Law-enforcement officers say it won't greatly affect the way they make arrests.

The ruling stems from a traffic stop in April 2006 in Skagit County. [Mark Godsey]

Continue Reading "State Supreme Court narrows probable-cause grounds in pot case"