CrimProf Blog

Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under the Felony Impeachment Rule

Colin Miller
John Marshall Law School

With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The "mercy rule" falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended the "mercy rule" to civil parties in quasi-criminal cases because they were in most respects similar to criminal cases. Congress finally shut the door to this practice based upon the serious risks of prejudice, confusion, and delay that propensity character evidence engenders.

These same risks, however, support treating civil parties in quasi-criminal cases the same as criminal defendants under the felony impeachment rule. That rule, Rule 609(a)(1), makes it much more difficult for courts to exclude the felony convictions of civil parties than it is for them to exclude the felony convictions of testifying criminal defendants. It is thus the only Federal Rule of Evidence which makes it easier to admit evidence which can be misused as propensity character evidence in civil trials than it is in criminal trials. Courts should correct this anomaly by treating civil parties in quasi-criminal cases the same as criminal defendant under the Rule. [Mark Godsey]

Continue Reading "Impeachable Offenses?: Why Civil Parties in Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under the Felony Impeachment Rule "

Democratic and Republican Party Platforms Address Crime

As part of the presidential nominating process, the Democratic and Republican parties have ratified their party platforms, laying out for the electorate their priorities and vision for the country. Overall, the 94 page Democratic platform document puts a heavy emphasis on economic opportunity, American competitiveness, national security and "renewing" the "American Community" and "American Democracy", which includes issues of environmental stewardship, immigration, children, fatherhood and families, criminal justice and more. The 67 page Republican platform document focuses heavily on defense and foreign affairs, reforming government and controlling spending, tax policy, health care reform, education, energy independence and security, and "Protecting Our Families," which includes issues of criminal justice, sanctity of life and property rights.

The Democratic platform, adopted during the convention in Denver last week, includes a four-paragraph section on criminal justice focusing principally on support for local law enforcement and ending violence against women. On support for law enforcement, the platform states, "We will reverse the policy of cutting resources for the brave men and women who protect our communities every day. At a time when our nation's officers are being asked both to provide traditional law enforcement services and to help protect the homeland, taking police off of the street is neither tough nor smart; we reject this disastrous approach. We support and will restore funding to our courageous police officers and will ensure that they are equipped with the best technology, equipment and innovative strategies to prevent and fight crimes."

The document goes on to say, "We will reduce recidivism in our neighborhoods by supporting local prison-to-work programs. We will continue to fight inequalities in our criminal justice system. We must help state, local and tribal law enforcement work together to combat and prevent drug crime and drug and alcohol abuse, which are a blight on our communities. We will restore funding for the Byrne Justice Assistance Grant Program and expand the use of drug courts and rehabilitation programs for first-time, non-violent drug offenders."

Additionally, the platform includes a paragraph about ending violence against women, vowing to create a special advisor to the president regarding violence against women and committing to increasing funding to domestic violence and sexual assault prevention programs. Finally, the platform includes a statement on victims' rights similar to one from the Democratic platform of 2004 which reads, "We support the rights of victims to be respected, to be heard, and to be compensated." [Mark Godsey]

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Report: US drug use shows little change in 2007

WASHINGTON -- Cocaine and methamphetamine use among young adults declined significantly last year as supplies dried up, leading to higher prices and reduced purity, the government reports. Overall use of illicit drugs showed little change.

About one in five young adults last year acknowledged illicit drug use within the previous month, a rate similar to previous years. But cocaine use declined by one-quarter and methamphetamine use by one-third.

Drug use increased among the 50-59 age group as more baby boomers joined that category. Their past month drug use rose from 4.3 percent in 2006 to 5 percent in 2007.

"The baby boomers have much higher rates of self-destructive behavior than any parallel age group we have data from," said John Walters, director of the White House Office of National Drug Control Policy. Walters, 55, is a boomer himself. [Mark Godsey]

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Utah has high reported-rape rate, but most victims silent

Utah's reported-rape rate - already higher than the national average - drastically underestimates the actual incidence of rape, a new report indicates.
    In a 2007 phone survey of more than 1,800 women, nearly 13 percent said they had been forcibly raped in their lifetimes, according to a report released Wednesday by the Utah Commission on Criminal and Juvenile Justice. An additional 16 percent were sexually assaulted in other ways, such as child molestation, drug-facilitated rape and attempted rape.
   

Fewer than 12 percent of those incidents were reported to police, the survey indicates. However, in a separate survey of victims of crimes committed in 2006, 25 percent of rape victims said they made

a report to police - about the same rate of reporting among rape victims nationally.
    "Campaigns exist all over to get people aware of [rape] and try to increase reporting," said Christine Mitchell, director of research for the commission.
    Reluctance to report rape leaves a dark question mark over Utah's already high tally. According to the most recent federal crime report, Utah's rate of reported rapes was about 10 percent higher than the national average. Moreover, the sensitive nature of sex crimes may skew even anonymous surveys, said Katie McMinn, violence-prevention specialist for the state health department. [Mark Godsey]

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Improving Responses to People with Mental Illnesses

Law enforcement officers throughout the country

regularly respond to calls for service that involve

people with mental illnesses—often without

needed supports, resources, or specialized training

These encounters can have significant consequences

for the officers, people with mental

illnesses and their loved ones, the community, and

the criminal justice system.

3

Law enforcement officers throughout the country

regularly respond to calls for service that involve

people with mental illnesses—often without

needed supports, resources, or specialized training.

Although these encounters may constitute a relatively small number

of an agency’s total calls for service, they are

among the most complex and time-consuming calls

officers must address.4 At these scenes, front-line5 Officers resolve the

officers must stabilize a potentially volatile situation,

determine whether the person poses a danger

to him- or herself or others, and effect an appropriate

disposition that may require a wide range of

community supports.

In the interests of safety and justice, officers

typically take approximately 30 percent of people

with mental illnesses they encounter into custody—

for transport to either an emergency room, a mental

health facility, or jail.

remaining incidents informally, often only able to

Continue Reading "Improving Responses to People with Mental Illnesses"

6

7 [Mark Godsey]

provide a short-term solution to a person’s longterm

needs. As a consequence, many law enforcement

personnel respond to the same group of

people with mental illnesses and the same locations

repeatedly, straining limited resources and fostering

a collective sense of frustration at the inability to

prevent future encounters. [Mark Godsey]

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In response, jurisdictions across the country are

exploring strategies to improve the outcomes of

these encounters and to provide a compassionate

response that prioritizes treatment over incarceration

when appropriate. These efforts took root in the

late 1980s, when the crisis intervention team (CIT)

and law enforcement–mental health co-response

models, described in more detail below, first

emerged. Since that time, hundreds of communities

have implemented these programs; some have replicated

the models, and others have adapted features

to meet their jurisdiction’s unique needs. Although

this number represents only a small fraction of all

U.S. communities, there are many indications that

the level of interest in criminal justice–mental

health collaborative initiatives is surging.

Students free life-term prisoner

The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence.

USC Law students argued – and the California Supreme Court agreed – that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The Court rejected the Governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights.

The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the Governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.

Students in the Post-Conviction Justice Project, under the direction of Profs. Michael Brennan, Carrie Hempel, and Heidi Rummel, have represented Sandra Davis- Lawrence at parole hearings and in the state courts since 2000. USC Law student Lisa Shinar ’07 wrote the petition challenging the Governor’s reversal of Davis-Lawrence’s fourth grant of parole. Christopher Mock ’08 argued the case in the California Court of Appeal. The court granted the petition and ordered her release on parole. The California Supreme Court took the case under review, and Patrick Hagan ’09 and Erin McLendon ’09 took the lead in briefing the case for the Supreme Court.

On August 21, the California Supreme Court ruled for Lawrence, allowing her to remain free after nearly 24 years in prison. [Mark Godsey]

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Miami judge rules poor defense caseload crushing

[From Eric Freedman] The public defender's office that represents Miami-Dade County's poorest criminal defendants is overburdened by a crushing caseload and will stop accepting thousands of lesser felony cases until the situation improves, a judge ruled Wednesday. Prosecutors vowed to appeal.

Circuit Judge Stanford Blake found that Public Defender Bennett Brummer's office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.

"The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused," Blake wrote.

"While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused," the judge added.

Beginning Sept. 15, all third-degree felony cases involving people who can't afford their own lawyers - that's about 2,000 cases a month in Miami-Dade - will be handled by a new regional office created by the Legislature in 2007.

Brummer said he felt "vindicated" by the judge's ruling and predicted private attorneys would have to be hired to represent most of the third-degree felony defendants because the regional office isn't set up for such a workload.

"The state will pay about three times as much as they would if they had properly funded the public defender's office in the first place," said Brummer, who is retiring in January after 32 years. "If they don't do that, they are going to run into bigger and bigger problems." [Mark Godsey]

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Report Faults Handling of Wiretap Notes

Former attorney general Alberto R. Gonzales improperly handled classified information about some of the government's most sensitive national security programs, but authorities will not recommend that he face criminal sanctions, according to officials familiar with an investigative report to be released today.

The Justice Department's inspector general has concluded that Gonzales should have taken precautions to safeguard the materials, related to the government's warrantless wiretapping program and other eavesdropping initiatives, when he became the nation's top law enforcement official more than three years ago. Investigators did not find any evidence that the information had been shared with or accessed by people who lacked the proper clearance to review it.

At issue are notes that Gonzales took during a March 2004 meeting between President Bush and congressional leaders in the White House Situation Room, as a program that allowed authorities to secretly monitor communications for evidence of terrorist plots was set to expire.

When Gonzales, then White House counsel, moved to become the Justice Department's top official in early 2005, he failed to secure the notes in a sensitive compartmentalized facility, the inspector general has concluded. Gonzales kept the notes in a safe in his office and at times took them to and from work in a briefcase -- practices that violated protocols for the handling of classified materials, according to people familiar with the report. [Mark Godsey]

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Program gives inmates chance to stay clean

TRENTON - New Jersey is in the midst of an ambitious pilot program to find out what combination of services works best at keeping ex-inmates from returning to state prisons.

The $2 million program, called Another Chance, is part of the state's stepped-up effort to lessen the percentage of ex-cons who re-enter state prison. It's also a key component of Gov. Corzine's strategy to combat gang and gun violence.

The  pilot program offers a range of social, job and medical services to 1,300 people with criminal convictions, then tracks the results.

Shavar Jeffries, who is overseeing re-entry programs until a permanent director comes on board this month, said data are being collected from newly admitted prisoners, those about to leave prison, and some on parole.

Every year in New Jersey, 14,000 adults and 1,600 juveniles are released from correctional facilities. As many as 65 percent of the adults will be re-arrested within five years, and 37 percent of juveniles will return to correctional facilities within two years.

The pilot program is limited to four prisons - Northern State, Garden State Youth Correctional Facility, Edna Mahan Correctional Facility for Women, and Riverfront State - and to releasees returning to Camden, Newark and Trenton.

Inmates and parolees in the program can receive an array of services including job training and behavioral therapy, anger management, and parenting classes.

It begins with a diagnostic assessment, so services are customized to each person's needs. Those in the pilot are divided into three groups: newly admitted prisoners, who receive a full range of services; those who will be released within nine months, who get a discharge plan and are lined up to receive services once released; and those on parole, who receive only post-release services.

The idea is to collect data on all groups "so we can connect with what really works to reduce recidivism," said Jeffries.

New Jersey is "ahead of the curve" when it comes to reducing recidivism, said Jeffries, who said only Michigan and Kansas address the problem as comprehensively. [Mark Godsey]

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State Supreme Court to look at 'no-retreat' self-defense law

FRANKFORT — The Kentucky Supreme Court plans to review two cases involving the state's new self-defense law that allows people to shoot dangerous home invaders without fear of prosecution.

The National Rifle Association had championed the measure enacted in 2006, saying it simply codified a rule of law already observed by judges in Kentucky and elsewhere: That people have a right to use deadly force to defend themselves and their families when their lives are in danger.

NRA spokesman Andrew Arulanandam said the so-called "no-retreat" self-defense laws enacted in 22 states over the past three years are important because some jurisdictions have held that crime victims have a responsibility to flee rather than to defend themselves.

"We think that's wrong," he said. "It is vital for these crime victims to have as many options as possible available to them."

The Supreme Court is scheduled to hear oral arguments Sept. 10 in appeals of two Jefferson County cases in which defense attorneys claimed their clients acted in self-defense.

Public defender Elizabeth McMahon is asking the Supreme Court to reverse the murder conviction of Phillip Leroy Wines and order a new trial. She says the trial judge should have instructed the jury that Wines, who is serving a 45-year sentence, had no duty to retreat when he stabbed James Lee Hamilton on June 12, 2005.

Assistant Attorney General Samuel J. Floyd Jr. filed a brief with the Supreme Court in which he points to "conflicting evidence" that he said raises questions about whether Wines acted in self-defense. Floyd also argued that the murder occurred before Kentucky's new self-defense law went into effect. [Mark Godsey]

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"Preppy Killer" Sentenced to 19 Years on Drug Charges

Preppie killer Robert Chambers was sentenced today to 19 years in prison for drug-dealing - more time than he got for strangling Jennifer Levin in 1986.

The 42-year-old prep school grad agreed to the long stretch as part of a plea bargain that allowed him to avoid a life sentence.

The hearing in Manhattan Supreme Court was a brief, cut-and-dried affair.

His hands cuffed, a jean-clad Chambers showed little emotion except to smirk at girlfriend Shawn Kovell, who was sitting in the audience with his father.

Kovell's presence caused a stir in the courthouse and a threat by prosecutors to put her behind bars.

She was busted with Chambers on coke-dealing charges in October but spared prison and ordered by prosecutors to enter drug rehab.

When prosecutors spotted her in the courtroom, smiling at her boyfriend, they were furious. They called the rehab and hauled Kovell before the judge who sentenced her to probation in December.

"She's apparently wandering around the city without an escort," said Assistant District Attorney Dan Rather Jr.

"It should be made clear that she complies with the conditions of the plea agreement or she goes to jail."

Justice Charles Solomon said he would contact the drug program, Paladia in the Bronx, for a status report.

Kovell had no comment, but Chambers' dad seemed thrilled his son's gal pal would remain free.

"They lost," he said of prosecutors, chuckling.

Chambers got 15 years in prison after he admitted he killed Levin during "rough sex" in Central Park, one of New York's most infamous crimes.

Read full article here. [Brooks Holland]

Criminal Law, Public Health and HIV Transmission

A number of cases have been reported in which people living with HIV have been

criminally charged for a variety of acts that transmit HIV or risk transmission. In some cases,

criminal charges have been laid for conduct that is merely perceived as risking transmission,

sometimes with very harsh penalties imposed. Some jurisdictions have moved to enact or

amend legislation specifically to address such conduct. The issue has also received public

and academic commentary.

These developments raise the question of whether criminal laws and prosecutions

represent sound policy responses to conduct that carries the risk of HIV transmission.

Individual cases, and accompanying media coverage, may prompt public calls for such a

response. But there are few simple solutions to such a complex problem, and a rush to

legislate should be avoided in favour of careful consideration. To assist in the development

of sound public policy, this paper:

proposes some principles that should guide thinking about, and development of, law

and policy on the question of criminal law and HIV/AIDS;

identifies a number of public policy considerations that states should take into account

when making decisions about the use of the criminal law;

considers the alternative to criminalization presented by public health laws;

discusses if and how the criminal law might be justifiably applied, considering

in particular:

(a) whether HIV-specific legislation is warranted;

(b) which acts that transmit HIV or carry the risk of transmission could be subject

to criminal sanctions;

(c) what degree of mental culpability should be required to impose criminal sanctions;

concludes with recommendations to governments, police, prosecutors, judges and

public health authorities regarding the appropriate use of criminal sanctions and

coercive public health measures. [Mark Godsey]

Continue Reading "Criminal Law, Public Health and HIV Transmission"

Gonzales aides politicized hirings, investigators find

WASHINGTON (CNN) -- Aides to then-Attorney General Alberto Gonzales improperly considered political affiliations and ideologies in hiring, but Gonzales was unaware of those actions, according to results of an investigation released Monday by the Justice Department internal watchdog.

The report provides no indication criminal laws were violated but cites illegal civil actions involving discrimination in hiring. Investigators, however, said no penalties are likely because the aides no longer work for the Justice Department.

Monica Goodling, the White House liaison for the attorney general, was the key operative behind many of the politicized decisions involving career prosecutors and immigration judges, the report says.

"The evidence demonstrated that Goodling violated department policy and federal law and committed misconduct by considering political or ideological affiliations" in Justice Department appointments, the report says.

Investigators found Gonzales was oblivious to what Goodling was doing.

"When we interviewed him, Gonzales stated that he was not aware at the time that Goodling used political factors in assessing candidates for career positions ... and was not even aware that Goodling's portfolio in the Office of Attorney General included the hiring of immigration judges," the report said.

Gonzales' attorney, George Terwilliger, issued a statement defending Gonzales' lack of knowledge about the actions of his top aides. [Mark Godsey]

Continue Reading "Gonzales aides politicized hirings, investigators find"

New DTA, habeas troubles

The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope.  It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.

These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible.  Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.

The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals.  But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.

Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases.  After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.)  This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.

Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges.  That was a schedule Department lawyers suggested, and Judge Hogan then embraced. [Mark Godsey]

Continue Reading "New DTA, habeas troubles"

Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a

California

jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through

Mexico

, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession. [Mark Godsey]

Continue Reading "Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence"

California prisons prepare for gay weddings

No prisoners so far have sought to arrange weddings with same-sex partners since the state Supreme Court granted same-sex couples the right to wed as of mid-June, according to Michele Kane, spokeswoman for the California Department of Corrections and Rehabilitation.

Nonetheless, department lawyers are drafting guidelines to bring the state's 33 adult prisons into compliance with the court's ruling that same-sex couples must be treated the same as opposite-sex couples under the California Constitution, Kane said.

What they have determined so far is that would mean allowing gay inmates to marry someone on the outside, but not a fellow prisoner — the same rules that apply to straight inmates, according to Kane.

"They will have the same marriage rights as other inmates — they will be able to marry non-inmates, but barred from marrying other inmates in prison," she said.

FIND MORE STORIES IN: Massachusetts | United States Supreme Court | mid-June | Specter | California Department of Corrections | Rehabilitation | California Constitution | Solano | Prison Law Office | Michele Kane

Prison officials were concerned that allowing two men or two women in the same prison to get married would pose novel safety and security concerns, according to Kane.

"For instance, suppose a prisoner finds out another prisoner has money or other assets. They might find themselves coerced into a marriage with a more powerful inmate who might try to lay claim to half their assets," she said.

Department lawyers also are recommending that prison chaplains relinquish the job of performing weddings for inmates once the proposed policies take effect, Kane said. Turning over the rituals to outside officiants would not put chaplains who may oppose same-sex marriage on religious grounds in the position of presiding over some ceremonies and not others, she said.

If approved by the division that oversees adult prisons, the rule prohibiting two inmates from marrying would mirror the prison policy in Massachusetts, the only other U.S. state where same-sex marriage is legal.

Last year, California became the first state to allow conjugal visits and overnight stays for inmates with same-sex partners in the civilian population, Kane said. The department does not keep a tally of how many prisoners have taken advantage of the spousal bonus since then.

The department also does not have a recent count of how many of the 125,000 adults in its custody get married each year. Anecdotally, an average of two weddings each month take place at the medium security prison in Solano that houses just over 6,047 inmates, according to Kane. [Mark Godsey]

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Were Estefano jurors under the `CSI Effect'?

Jurors in the trial of the man accused of shooting songwriter Estefano say prosecutors did not show enough evidence to prove their case.

When Latin songwriter Estefano testified against the handyman accused of shooting him, it wasn't that his story was so unbelievable.

Jurors just wanted more.

That's according to two jurors who acquitted Francisco Oliveira Jr. of shooting Fabio ''Estefano'' Salgado.

"They didn't have nothing to go on. No DNA. No powder burns. No fingerprints. I can't do nothing to a guy until they got something to go on,'' juror Thomas C. Griffith said on Thursday. 'It was just hearsay -- `Junior shot me.' ''

Jasmin Qyyum, a 19-year-old juror, said shortly after the trial: ``The state didn't do an adequate job.''

The jury's decision surprised observers who believed prosecutors Alicia Garcia and Michael Von Zamft had a compelling case that included the songwriter's vivid testimony identifying his would-be assassin.

But the verdict underscored the unpredictability of Miami-Dade's diverse juries, and the so-called ''CSI Effect'' -- jurors who expect evidence like the popular CBS television series that depict investigators using sensational science to solve crimes in one neatly packaged hour.

''Unfortunately, this is proof of what we have said: There is a CSI Effect,'' Von Zamft said. ``We question jurors about that and they understand that CSI is phony but they want to see the same things as on TV and refuse to accept it's not possible.

``Therefore, they stay on the jury and that mind-set stays with them.'' [Mark Godsey]

Continue Reading "Were Estefano jurors under the `CSI Effect'?"

Sex assaults that leave victims pregnant can warrant tougher penalties, court rules

A sexual assault that leaves a victim pregnant may be punished more severely than one that does not result in pregnancy, the California Supreme Court ruled unanimously Thursday.

The state high court said a pregnancy may be considered "great bodily injury."

"We conclude that here, based solely on the evidence of the pregnancy, the jury could reasonably have found that 13-year-old K. suffered a significant or substantial physical injury," Justice Joyce L. Kennard wrote for the court.

The court ruled in the Santa Clara County case of Gary W. Cross, who repeatedly had sexual intercourse with his 13-year-old stepdaughter while her mother worked. The teenager, identified as K., became pregnant, and Cross arranged for her to have an abortion. Because she was 5 1/2 months pregnant, the abortion was performed surgically.

The jurors at Cross' trial were told they could find that he personally inflicted "great bodily injury" on the girl as a result of her pregnancy or the abortion. The jury reached that finding, which mandated a sentence of 15 years to life in prison. Without that verdict, the defendant would have received a more lenient sentence.

Cross appealed, arguing that a pregnancy without complications could not constitute a substantial injury, nor could an abortion he did not perform. The state high court agreed that the abortion was not an injury he personally inflicted but decided that the pregnancy could be considered a significant injury under the law.

The court cited a prosecutor's trial argument that the victim was "carrying a baby for 22 weeks . . . in a 13-year-old body." A DNA test on tissue samples from the fetus showed a 99.99% probability that Cross was the father.

Although the court ruled unanimously that the girl's pregnancy amounted to substantial harm, the justices were split 5 to 2 on whether to declare that every pregnancy stemming from sexual assault would amount to a great injury. The majority said that was a question for juries to decide based on the facts of a case.

Justice Carol A. Corrigan and Chief Justice Ronald M. George said the ruling should apply to all pregnancies that result from sexual assaults.

"A victim who is raped and made pregnant experiences a different degree of injury than the victim who is not impregnated," Corrigan wrote. "Because pregnancy must result in childbirth, miscarriage or abortion, its infliction during a sexual assault is, by definition, a substantial or significant injury." [Mark Godsey]

Continue Reading "Sex assaults that leave victims pregnant can warrant tougher penalties, court rules"