CrimProf Blog

Mississippi Innocence Project to WIn its First Exoneration

It looks to be a busy year for the Mississippi Innocence Project, which began operation this month. The clinic housed at the University of Mississippi School of Law has started examining cases and will be pushing for legislative reform.

Project director Tucker Carrington said the state Legislature is to consider legislation this year that would allow prisoners like Arthur Johnson to request DNA testing that could prove their innocence

On Jan. 4, the Mississippi Supreme Court ordered the Sunflower County Circuit Court to determine whether Johnson's conviction 15 years ago for rape and burglary should be set aside. Recent DNA testing provided conclusive evidence that Johnson is not the person who committed the rape.

Johnson was convicted in 1993 and sentenced to 55 years in prison, despite no physical evidence linking him to the crime. Johnson's lawyer, Emily Maw from Innocence Project New Orleans, said she expects the Sunflower County Circuit Court to hold a hearing soon to review the new DNA evidence.

"This DNA testing proves that Arthur Johnson was telling the truth when he claimed from the beginning that he is innocent of this charge," she said.

If the court releases Johnson, he will be the first prisoner in state history to be fully exonerated based on DNA testing performed after the trial. The decision comes just as the UM law school's new Innocence Clinic begins operation, Carrington said.

The Innocence Project New Orleans, which represents Johnson, has successfully represented numerous prisoners in Louisiana and Mississippi and is playing a crucial role in the founding of the new clinic. The Mississippi Innocence Project was started with funding from many people, including author John Grisham and Columbus attorney Wilbur Colom.

The Legislature also is to consider requiring law enforcement authorities and courts to preserve biological evidence, even after a person is convicted, Carrington said. Mississippi is one of eight states without statute providing access to DNA testing for prisoners with claims of innocence. Legislative reform is a moral obligation, he said.

"Arthur Johnson's exoneration is yet another compelling example of the powerful tool that DNA evidence can provide - for people like Mr. Johnson, as well as for law enforcement who now have an unsolved case on their hands but also solid leads on the real perpetrator," Carrington said. "But this kind of evidence can only be helpful if it exists, and for that, Mississippi needs legislation to ensure that there will be clearly established procedures to provide for preservation and testing of this evidence for those whose claims of innocence could be proven but who cannot afford to pay for it." [Mark Godsey]

Death Penalty Authority Victor Streib to Teach at Elon University School of Law

Victor Streib, a noted national authority on the death penalty and its application to women and juveniles, will teach spring semester courses in criminal law and criminal procedure At Elon University School of Law

Streib serves as the Fisher Professor of Law at Ohio Northern University College of Law, where he was dean from 1996 to 2000. He is a prolific author with more than 300 books, book chapters, article and papers. His work has been cited 28 times in United States Supreme Court opinions.

Streib has served as appellate counsel in several death penalty cases involving juveniles, including Thompson v. Oklahoma, the landmark 1988 case that established a Constitutional minimum age of 16 for the death penalty. He has testified before Congressional committees and as an expert witness in death penalty trials nationally. Frequently sought for media interviews, Streib has been quoted on violent crime and the death penalty in the New York Times, Wall Street Journal, Washington Post and Time magazine. He has also appeared on CBS’ 60 Minutes, CNN’s Larry King Live and NBC’s Today Show.

Streib also serves as an adjunct professor of law at Indiana University at Bloomington. He was a professor of law at Cleveland State University’s Law College from 1980 to 1996, and he previously taught at New England School of Law and Indiana University’s Department of Forensic Studies. His visiting professor positions were at the University of San Diego and Michigan State University, and he was a visiting scholar at the Ohio State University Center for Law, Policy and Social Science. He will serve as visiting professor at Elon.

Streib earned a law degree from Indiana University at Bloomington and a bachelor’s degree in industrial engineering from Auburn University. [Mark Godsey]

CrimProf Richard Dieter Discusses the Cons of One Representing Themselves in a Death Penalty Trial

From post-gazette.com: Catholic University Law School CrimProf Richard Dieter discusses the problems with a person representing themselves in a capital murder trial. This is in regards to Patrick Jason Stollar, who is charged with robbing and killing an elderly Upper St. Clair woman, who has made a tactical decision that most lawyers say is extremely ill-advised. He is acting as his own lawyer in a death penalty case.

"The brain surgery of the legal profession is death penalty cases. It's not something any lawyer should do, much less a non-lawyer,"

Experienced capital defense lawyers often work in pairs and spend a year preparing for trial. They interview witnesses, dig up records, do research, reinvestigate facts and locate experts.

The American Bar Association guidelines for taking on a death penalty case, the standard used by the U.S. Supreme Court and more than 50 state and federal courts, recommend hiring a licensed attorney with a commitment to "zealous advocacy," oral advocacy skills, complex negotiation and writing skills, expertise in fingerprints, ballistics, forensic pathology and DNA evidence, aptitude in presenting mental health evidence and trial advocacy skills, including jury selection, cross-examination of witnesses, opening statements and closing arguments.

Mr. Stollar, a former day laborer who has attempted suicide several times in jail, does not have a law degree.

It is very uncommon for defendants to represent themselves in capital cases, experts say.

Notable exceptions include Texas death row inmate Scott Panetti, who dressed like Tom Mix and tried to subpoena Jesus Christ and John F. Kennedy at trial. Ted Kaczynski, known as the Unabomber, wanted to represent himself, but ended up taking a plea. Rest of Article. . . [Mark Godsey]

CrimProf Peter Henning Discusses Perjury

From freep.com: Wayne State University College of Law CrimProf Peter Henning explains that judges who learn of perjury in their court can hold a witness in contempt, or ask the prosecutor to investigate with regards to the recent testimony by Detroit Mayor Kwame Kilpatrick and his top aide Christine Beatty.

About 20 lawyers have been disciplined for perjury or facilitating perjury by the state's Attorney Discipline Board since its creation in 1978. Director John Van Bolt said a typical penalty is a suspension of 3 to 4 years.

The Michigan Rules of Professional Conduct, which govern attorneys, say even nonpracticing lawyers in public office can be sanctioned for dishonesty. "Lawyers holding public office assume legal responsibilities going beyond those of other citizens," the code states. Rest of Article. . . [Mark Godsey]

Swiss CrimProf Mark Pieth Wins Transparency Award

From afp.com: One of the winners of this year's Transparency award was Swiss Basil University CrimProf Mark Pieth, credited with playing a leading role in securing international implementation of the Anti-Bribery Convention drawn up by the Organisation for Economic Cooperation and Development (OECD) think-tank

Cobus de Swardt, Transparency's Managing Director, said the Convention was "widely regarded as the gold standard for monitoring mechanisms" and had "helped to stem the supply side of corruption".

Under Pieth's leadership, the OECD body that monitors corruption in business "has the courage to criticise even the most powerful, including the United Kingdom, Germany and Japan," de Swardt said.

Rest of Article. . . [Mark Godsey]

New Article Spotlight: The IPhone Meets the Fourth Amendment

From SSRN.com: South Texas College of Law CrimProf Adam M. Gershowitz recently published The IPhone Meets the Fourth Amendment. Here is the Abstract: Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence.

The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.

This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. [Mark Godsey]

Padilla Gets a More Lenient Sentence Than Guidelines Recommend

From NYTimes.com: Jose Padilla, the Brooklyn-born convert to Islam who was once accused by the government of plotting to detonate a “dirty bomb” in the United States, was sentenced on Tuesday to 17 years and four months in prison for his role in a conspiracy to help Islamic jihadist fighters abroad.

he sentence was more lenient than the federal sentencing guidelines recommended and was a blow to the government, which had requested the maximum penalty of life imprisonment for Mr. Padilla, 37.

In explaining her decision, Judge Marcia G. Cooke of Federal District Court in Miami acknowledged the gravity of the crimes Mr. Padilla had committed. But she questioned the range and impact of the conspiracy, saying that there was no evidence linking the men to specific acts of terrorism anywhere or that their actions had resulted in death or injury to anyone.

She also noted that defendants in other well-known American terrorism cases had received life sentences for more heinous crimes, including Zacharias Moussaoui, who was convicted of conspiracy in connection with the attacks of Sept. 11, 2001, and Terry L. Nichols, who was convicted of murder in the 1995 bombing of the federal building in Oklahoma City. Rest of Article. . . [Mark Godsey]

New Article Spotlight: Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders

From SSRN.com: John Marshall Law School CrimProf Corey Rayburn Yung recently published  " Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders." Here is the abstract:

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live.

In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America.

Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society. [Mark Godsey]

The Art of Judging Science

from sciencenews.org: From Perry Mason to Law & Order, legal dramas have proved among the most predictably popular series on American television. In such shows, a defendant's guilt or innocence typically comes to light only after expert witnesses testify before a jury, justifying—or challenging—theories about how a defendant could have perpetrated the crime.

Much of what people know—or think they know—about U.S. jurisprudence traces to such shows about criminal cases. What few nonlawyers realize is that these shows aren't especially good models of cases involving torts-noncriminal suits where plaintiffs claim harm from a company's products or activities. In these cases, judges frequently bar from the courtroom at least some scientific experts and the data on which they might have testified. Rest of Article. . . [Mark Godsey]

Lawyer in Atkins Case Comes Forwards About Prosecutorial Misconduct

From NYTimes.com: For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.

Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him.

“Clancy and I, when we were alone together, would reminisce about this and more or less renew our vows of silence,” Mr. Smith told a judge last month. “We felt that there was nothing that could be done.”

But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”

Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.

It was in Mr. Atkins’s case that the United States Supreme Court ruled in 2002 that the Constitution bars the execution of the mentally retarded. But Virginia continued to pursue the death penalty against him, saying he was not mentally retarded. If Thursday’s decision stands, that issue may never be resolved.

Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine.

The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.

“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”

The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith. Rest of Article. . . [Mark Godsey]