October 4, 2008
Marie Ashe Professor of Law Suffolk University Law School
Dep. Public Defender, Lancaster County Public Defender Office, Lincoln, 1980-83; Staff Attorney, Nebraska Advocacy Services, Lincoln, 1983-84; Private Practice, Sole, Lincoln, 1983-84; Supervisory Attorney, Civil Clinical Program - Nebraska, Lincoln, 1983; Director, 1984; Visiting Assistant Professor, Nebraska, 1984-85; Assistant Professor, West Virginia University, 1985-88; Associate Professor, 1988-90; Professor, 1990-92; Visiting Professor, Boston University, 1992-93; Visiting Professor, Suffolk, 1993-94; Professor, since 1994.
BA, Clark University; MA, Tufts University; JD, University of Nebraska
NE; WV; MA
Constitutional Law; Criminal Law; Jurisprudence; Law and Religion
Member, Order of the Coif.
State rule clarifies 60-day supply of medical marijuana
A new rule determining how much pot constitutes a 60-day supply for medical-marijuana users was finalized on Thursday, a decade after Washington voters passed an initiative legalizing marijuana for people suffering from terminal and debilitating illnesses.
The new state rule, which goes into effect Nov. 2, sets the supply limit at 24 ounces of usable marijuana plus 15 plants. Those who need more marijuana to manage their pain will have to prove they need it — though how they would do that remains unclear.
While the new, 60-day-supply rule is meant to clarify the law and help police officers determine legitimate amounts, medical-marijuana advocates say the amounts are unreasonable — especially the 15-plant limit — and put patients at risk of criminal prosecution.
In King County, though, that's not going to happen, said Prosecuting Attorney Dan Satterberg, who has met with local law-enforcement officials and created an office policy that looks upon medical-marijuana cases "with a very lenient eye."
"Having this rule, having some amount ... is helpful, but it's not the end of the analysis," Satterberg said. "If you're in King County and you're dying of cancer, we're not going to prosecute you if you have 15 plants or 30. If somebody is legitimately ill, we're not going to prosecute that case, period."
In 1998, Initiative 692 legalized marijuana for medical purposes. Passed by 59 percent of Washington voters, the initiative said patients with valid certification from their doctors could possess a 60-day supply — but never said how much pot that was. The confusion and uncertainty led to conflict between police and patients. [Mark Godsey]
October 3, 2008
Interpersonal and Physical Dating Violence Among Teens
The death of a 16 year-old girl, shot and killed by her 17 year-old boyfriend in Oakland, California, epitomizes the potential of interpersonal violence to escalate to a tragic extreme (Contra Costa Times, 2008). Exposure to interpersonal violence often begins in early adolescence and continues into adulthood (CDC, 2006). In the US alone, approximately 1 in 3 adolescent girls (estimates up to 35%) is a victim of interpersonal violence (Bonomi & Kelleher, 2007; CDC 2006 & 2007; Marcus, 2005). This Focus attempts to bring to light various aspects of a little-studied issue of critical importance, especially to youth.
The death of a 16 year-old girl, shot and killed by her
17 year-old boyfriend in Oakland, California, epitomizes
the potential of interpersonal violence to escalate to a
tragic extreme (Contra Costa Times, 2008). Exposure to
interpersonal violence often begins in early adolescence
and continues into adulthood (CDC, 2006). In the US
alone, approximately 1 in 3 adolescent girls (estimates up
to 35%) is a victim of interpersonal violence (Bonomi
& Kelleher, 2007; CDC 2006 & 2007; Marcus, 2005).
This Focus attempts to bring to light various aspects of
a little-studied issue of critical importance, especially to
Interpersonal violence is physical, emotional, or verbal abuse by one partner towards another in a dating relationship. It is referred to by a variety of names—relationship violence, date ghting, and intimate partner violence—terms used interchangeably in this report. This de nition also includes any abusive behavior aimed at controlling or hurting a dating partner and thus includes threats and acts of intimidation (WomensLaw. org, 2007; CDC, 2007). The physical aspect of interpersonal violence—intentional hitting, slapping, or physically hurting by a boyfriend or girlfriend—is referred to as physical dating violence (PDV) and is emphasized in the following report. [Mark Godsey]
Interpersonal violence is physical, emotional, or verbal
abuse by one partner towards another in a dating relationship.
It is referred to by a variety of names—relationship
ghting, and intimate partner
violence—terms used interchangeably in this report.
nition also includes any abusive behavior aimed
at controlling or hurting a dating partner and thus
includes threats and acts of intimidation (WomensLaw.
org, 2007; CDC, 2007). The physical aspect of interpersonal
violence—intentional hitting, slapping, or physically
hurting by a boyfriend or girlfriend—is referred to
as physical dating violence (PDV) and is emphasized in
the following report. [Mark Godsey]
Mackerel Economics in Prison Leads to Appreciation for Oily Fillets
When Larry Levine helped prepare divorce papers for a client a few years ago, he got paid in mackerel. Once the case ended, he says, "I had a stack of macks."
Mr. Levine and his client were prisoners in California's Lompoc Federal Correctional Complex. Like other federal inmates around the country, they found a can of mackerel -- the "mack" in prison lingo -- was the standard currency.
"It's the coin of the realm," says Mark Bailey, who paid Mr. Levine in fish. Mr. Bailey was serving a two-year tax-fraud sentence in connection with a chain of strip clubs he owned. Mr. Levine was serving a nine-year term for drug dealing. Mr. Levine says he used his macks to get his beard trimmed, his clothes pressed and his shoes shined by other prisoners. "A haircut is two macks," he says, as an expected tip for inmates who work in the prison barber shop.
There's been a mackerel economy in federal prisons since about 2004, former inmates and some prison consultants say. That's when federal prisons prohibited smoking and, by default, the cigarette pack, which was the earlier gold standard.
Prisoners need a proxy for the dollar because they're not allowed to possess cash. Money they get from prison jobs (which pay a maximum of 40 cents an hour, according to the Federal Bureau of Prisons) or family members goes into commissary accounts that let them buy things such as food and toiletries. After the smokes disappeared, inmates turned to other items on the commissary menu to use as currency.
Books of stamps were one easy alternative. "It was like half a book for a piece of fruit," says Tony Serra, a well-known San Francisco criminal-defense attorney who last year finished nine months in Lompoc on tax charges. Elsewhere in the West, prisoners use PowerBars or cans of tuna, says Ed Bales, a consultant who advises people who are headed to prison. But in much of the federal prison system, he says, mackerel has become the currency of choice. [Mark Godsey]
Second Circuit Overturns Terrorism Convictions
Finding that a Yemeni cleric and his assistant had been deprived of a fair trial because of errors by the presiding judge, a federal appeals panel in New York on Thursday overturned their convictions in a prominent terrorism case once hailed by the Bush administration as a significant blow to Al Qaeda.
The appeals court judges found that the defendants, Sheik Mohammed Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed, did not receive a fair trial because the trial judge, Sterling Johnson Jr., allowed the jury to hear inflammatory testimony and other evidence that prejudiced the defendants’ case.
The appeals panel sent the case back to the lower court, Federal District Court in Brooklyn, but in a highly unusual step, directed that it be assigned to a different judge.
Judge Johnson presided over the five-week trial in 2005. Both defendants were convicted of charges including conspiracy to support Al Qaeda and Hamas, and were sentenced to long prison terms.
Even before the trial, the case received wide attention when the government’s chief witness, a Yemeni informer, set himself on fire outside the White House. And in 2003, when John Ashcroft, then the attorney general, announced the charges against Sheik Moayad, he said the sheik had admitted to having given Osama bin Laden $20 million before the Sept. 11 terror attacks.
But in overturning the verdict, the three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that Judge Johnson erred in allowing the jury to hear evidence like the graphic testimony of a survivor of a fatal 2002 bus bombing in Tel Aviv, in which the defendants had not been implicated. Prosecutors had said the testimony was necessary to establish that the defendants knew that Hamas, which claimed responsibility for the bombing, engaged in terrorist activity, a point the defendants did not dispute.
Judge Barrington D. Parker Jr., writing for the appellate panel, said that the bombing, which killed six people, “was almost entirely unrelated” to the charges.
He also wrote that Judge Johnson should not have allowed testimony from another witness, Yahya Goba, who described spending time at a Qaeda training camp in Afghanistan that Mr. bin Laden visited.
Read full article here. [Brooks Holland]
October 2, 2008
Mistrial Motion Being Considered in Trial Of Sen. Ted Stevens
The trial of Senator Ted Stevens, Republican of Alaska, teetered on the verge of a mistrial or even a dismissal of the charges on Thursday because of the discovery that Justice Department prosecutors had withheld information that they were supposed to turn over to defense lawyers.
Judge Emmit G. Sullivan dismissed for the day the jurors in the trial, in its second week, and hurriedly scheduled an afternoon hearing on whether he should dismiss the seven felony counts Mr. Stevens faces.
“It’s very troubling,” said a clearly angry Judge Sullivan, who questioned whether someone in the department deliberately concealed the information. “If it wasn’t deliberate, it was gross negligence.”
The surprise development came after prosecutors late Wednesday sent to the defense team a copy of an F.B.I. report of an agent’s interview with Bill Allen, an Alaska oil services magnate. Mr. Allen, who is the prosecution’s chief witness, has been on the stand this week.
In addition to the scolding of the government by the judge, the revelation produced a heated and sometimes personal confrontation between the chief defense lawyer, Brendan Sullivan, and the chief prosecutor, Brenda Morris, outside the presence of the jury.
Mr. Stevens is charged with failing to list on Senate disclosure forms some $250,000 in gifts and services he received from Mr. Allen and his company, Veco, for renovations of the senator’s home in Girdwood, Alaska.
At the heart of the trial is the issue of whether Mr. Stevens knowingly failed to list the gifts and services. Mr. Allen has already testified that he did not send bills to Mr. Stevens because he was explicitly told not to do so by the senator’s personally designated liaison to him.
The belatedly disclosed document is the agent’s handwritten report of an interview of Mr. Allen in which Mr. Allen said he believed that Mr. Stevens would have paid the bills had they been sent to him.
Mr. Sullivan offered a theatrical protest, throwing down papers at the lectern and saying that in his 40 years of practice he had never encountered such blatant government ineptitude.
“The integrity of this process has been breached,” he asserted in asking for a dismissal. “I’ve never seen anything like it.”
Read full article here. [Brooks Holland]
Murders send city crime rate upwards
The city's crime rate jumped last month, led by a spike in murders, NYPD statistics show.
The murder rate rose nearly 77% to 46 homicides through Sept. 28, compared with 26 through the same date in September 2007.
Shooting crimes rose last month too, with the number of victims up 11% and the number of incidents up 10%, according to NYPD figures released Tuesday.
So far this year, the city has tallied 390 homicides, 11% more than the 350 recorded by the end of September in 2007.
Police Commissioner Raymond Kelly said that even if the violent trend continues, total homicides would still be the second lowest since the department started keeping track in 1963. Last year was a record low, with fewer than 500 homicide victims in the city.
"So we are doing, I think, an effective job of suppressing crime," Kelly said. "Would we like to see it lower? Of course. But overall, when you step out and look at the crime picture, it's going very well."
Still, the uptick in crime comes as the city is facing an economic downturn that is growing worse by the day.
Thomas Reppetto, a criminologist and co-author of "NYPD: A City and Its Police," said that while the department generally counters crime waves with effective strategies, the financial crisis could affect the number of police officers on the street.
"The great unknown is how this financial problem is going to affect the strength of the NYPD," said Reppetto. "Are they going to have sufficient resources to continue to carry out the strategies of the past? That I don't know." [Mark Godsey]
Judge: No Internet for stalker
A local artist who pleaded guilty to cyberstalking has been given a sentence that includes writing “I will not interfere with the Plaza Central Art Krawl” 1,000 times.
Kevin Starr, whose real name is Herschel Crumbley, was accused of sending hundreds of damaging e-mails that purported to be from neighborhood leaders and business owners in an effort to sabotage the community's quarterly art crawl.
Starr was sentenced Sept. 25 to 18 months of probation and could face 45 days in jail if he violates any of the judge's orders.
Under the terms of his probation, Starr is not allowed to touch a computer of any kind, including an iPhone, and must submit to warrantless searches of his home for electronics.
“This man has so abused the privilege to communicate on the Internet that I thought it best to take it away from him,” District Court Judge Theo Nixon told Eye.
In addition to the writing requirement, Starr is also not allowed to enter art galleries in Plaza Midwood or have contact with any of the victims. He has to undergo a mental health assessment and serve 25 hours of community service at Metrolina AIDS Project.
“There is a lot of economic and psychological damage that resulted from his actions, so I structured the sentence in a fashion I thought was appropriate,” Nixon said.
Starr did not return calls seeking comment. [Mark Godsey]
Temple professor ponders role in Phila. parole review
The Temple University professor who hastily accepted Gov. Rendell's request Monday to conduct a "top-to-bottom" review of Pennsylvania's parole system knows very little about the new assignment or how long it will take to complete.
John S. Goldkamp, head of Temple's criminal-justice department, said yesterday that he planned to focus on how other states release violent offenders into society and whether those practices can be used here.
Rendell asked Goldkamp to take on the task in the wake of the second slaying in four months of a city police officer by a paroled felon.
Goldkamp said yesterday that he did not yet know what his budget is, whether he can hire consultants, or his deadline. He did not even know until he read about it in yesterday's newspapers that Rendell had put a hold on all early prison releases until Goldkamp gets his job done. Each month, about 1,000 prisoners typically are released on parole from Pennsylvania's prisons.
"That makes for a lot of pressure," Goldkamp said. "I have the pressure of knowing that to some extent, our work is holding up the release of some people who are fully prepared to be released."
As part of the review, Goldkamp said he would examine the cases of the parolees who gunned down Sgt. Patrick McDonald last week and Sgt. Stephen Liczbinski in May. But he stressed yesterday that he was "not interested in finding blame, although that seems to be the environment right now."
Instead, he added, he plans to "look at the process of the system, and its strengths and weaknesses and what might be done to make it better."
Rendell contacted Goldkamp on Monday afternoon, hours after the Fraternal Order of Police and Philadelphia Police Commissioner Charles H. Ramsey called on the state to declare a moratorium on paroles pending a systematic review.
Speaking outside McDonald's funeral yesterday, John J. McNesby, president of FOP Lodge 5, expressed gratitude for Rendell's quick action.
"It seems like there's some light at the end of the tunnel, when the governor agreed to do that yesterday," said McNesby. "He's doing the right thing, and that means a lot for the cops on the street."
Goldkamp, a nationally recognized expert on corrections and parole issues, said he expected to meet with Rendell administration officials soon to set the scope of the review and other logistics, including a time frame.
The last time he was hired to do a systemwide review was in 2005, when he examined crowding in Philadelphia's prisons.
That review took a year to complete, he said, adding, "This won't take a year." [Mark Godsey]
October 1, 2008
Crime lab shutdown slammed as too fast
A group of scientists told the Detroit City Council on Tuesday that the closing of the police crime lab was hasty and left a slew of employees with tarnished reputations and job uncertainty.
Cathy Carr, 50, a senior forensic biologist, said the decision to close the entire lab has left her colleagues full of paranoia and stress.
Mayor Ken Cockrel Jr. and Police Chief James Barren closed the lab, which employs about 68 people, last week after a preliminary audit indicated about a 10% rate of inaccuracies related to ballistics evidence testing involving firearms.
"I was a scientist in the lab minding my own business and I got thrust out the door, so to speak," Carr said. "Being painted as incompetent and irresponsible is not going to make the job market open up for me."
The Michigan State Police are now handling all aspects of the crime lab.
Detroit Police spokesman James Tate said the future of the employees remains in limbo.
Carr, a 13-year employee, said it's unfair to blame the entire crime lab for the ballistics testing problems.
"What happens in one unit does not trickle down into what happens in all units," she said. [Mark Godsey]
High court rebuffs Louisiana in child rape case
WASHINGTON -- The Supreme Court declined Wednesday to revisit its recent decision outlawing executions for people convicted of raping children.
The unusual request, from Louisiana and the Bush administration, was based on the failure of anyone involved in the case to take into account a federal law from 2006 that authorizes the death penalty for members of the military who are convicted of child rape.
The state argued that the case should be reopened because Justice Anthony Kennedy relied in part on what he called a "national consensus" against executing convicted rapists. The court split 5-4 in the June 25 ruling.
The justices, by a 7-2 vote, issued an amended opinion Wednesday that adds a footnote concerning military law, but otherwise leaves the essence of the decision untouched.
The provision of military law setting out punishments for rapists "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," Kennedy wrote, joined by the four liberal justices who formed the majority in June.
Reopening the case would have taken five votes, including that of at least one justice who voted to ban the death penalty for rapists.
Justices Samuel Alito and Clarence Thomas voted to hear the case again.
Chief Justice John Roberts and Justice Antonin Scalia dissented from the original opinion, but voted against reopening the case.
The number of jurisdictions that allowed for capital punishment for rapists was irrelevant to the court's decision, Scalia said. Instead, the justices in the majority employed their independent judgment to say the Constitution forbids executions when the defendant does not kill the victim, he said. [Mark Godsey]
When deadly force is justified
The Indiana law that justifies use of deadly force for people defending themselves, their home or others in danger is seldom used, but this week's case involving a Northwestside family brings it to the spotlight.
Sunday, Robert McNally put a chokehold on a naked intruder. The man died, and McNally faces no charges.
Indiana is like 22 other states, mostly in the Midwest and South, that since 2005 have strengthened deadly force laws to ensure that crime victims could not be prosecuted for rightfully defending their family or home.
"The underlying premise is that victims of crime can have an opportunity to defend themselves if they choose to do so," said Andrew Arulanandam, a spokesman for the National Rifle Association, which has been a supporter of the push for stronger laws.
But other advocates and state lawmakers say the expansion of such laws could promote violence as a means of retaliation and point to examples of the laws' abuse in other states. [Mark Godsey]
SCOTUS Grants Cert. in Seven Criminal Cases
The U.S. Supreme Court today granted review in seven criminal cases. Among the issues the Court will address are two Sixth Amendment issues: whether a defendant whose Sixth Amendment right to counsel has attached and who has been appointed counsel must "accept" the appointment before he becomes unapproachable by the police; and whether the prosecution can use the fruit of a Massiah violation for impeachment purposes.
You can see the full list of cases, with links to related documents, here. [Mike Mannheimer].
September 30, 2008
Third Circuit Requires Reasonable Suspicion for Border Searches of Sleeping Compartments
The Fourth Amendment generally prohibits federal agents from conducting border searches of sleeping compartments on vessels unless the agents have reasonable suspicion, the U.S. Court of Appeals for the Third Circuit announced Sept. 4 (United States v. Whitted, 3d Cir., No. 06-3271, 9/4/08).
The court framed the critical issue in the case as "whether the search of a cabin of a cruise ship sufficiently intrudes upon an individual's privacy to render it non-routine, so that reasonable suspicion of criminal activity is required." It also reported "a surprising dearth of authority on the matter."
The defendant in this case was a passenger on a large cruise ship sailing from the foreign port of St. Maarten. Officers of U.S. Customs and Border Protection had received a tip that the defendant bought his ticket at the last minute, had visited "drug source countries," and had a criminal record. When the cruise ship docked in St. Thomas, the officers entered his locked stateroom with a narcotics-detection dog and found heroin used to convict the defendant in federal court.
Border Search Doctrine
The U.S. Supreme Court has repeatedly held that warrantless, suspicionless searches of travelers' belongings at the border are "reasonable" for Fourth Amendment purposes. The most recent Supreme Court decision addressing the issue, United States v. Flores-Montano, 541 U.S. 149, 72 U.S.L.W. 4263 (2004), reiterated that "[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity."
The court in Flores-Montano criticized a distinction that the lower courts have drawn between "routine" and "non-routine" border searches. The court said the distinction makes too much out of language in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), that was intended to be descriptive only.
The justices focused instead on the intrusiveness of the search, which in that case was the suspicionless disassembly and inspection of an automobile's fuel tank. The court had previously held that the Fourth Amendment requires reasonable suspicion for border searches that intrude on travelers' bodily integrity, and the Flores-Montano court made clear that "the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles." The court, however, left open the possibility that "a border search might be deemed 'unreasonable' because of the particularly offensive manner it is carried out."
Home Away From Home
In an opinion by Judge Marjorie O. Rendell, the Third Circuit said it had "little trouble concluding that a passenger cabin is more like an individual's home than an automobile." Citing Montoya de Hernandez and quoting from circuit precedent decided before Flores-Montano, the court explained that "[b]order searches ... fall into two categories: 'routine searches that require no suspicion and non-routine searches that require reasonable suspicion.' "
To determine whether the border search of a room on a cruise ship can be classified as "routine," the court examined the degree to which the search intrudes on a traveler's privacy. It found "compelling" the defendant's argument that "an individual's expectation of privacy in a cabin of a ship is no different from any other temporary place of abode." The heightened privacy protections that the Fourth Amendment affords to homes have previously been extended by the Supreme Court to overnight guests at the homes of friends and in hotels. With this in mind, the Third Circuit said:
Just as individuals seek privacy in hotel rooms or another's home to sleep, cruise ship passengers seek out privacy in their sleeping cabins and expect that they will not be opened or intruded upon without consent. Mindful of the "centuries-old principle of respect for the privacy of the home," we, therefore, consider a search of an individual's living quarters among the most intrusive of searches--invading as it does a place where the individual expects not to be disturbed.
The court also noted that other circuits have reached the same conclusion when addressing other types of searches of sleeping areas on ships.
Read full article here. [Brooks Holland]
D.C. Police Officers Carry iPhones, Panasonic Toughbooks
An initiative spearheaded by Vivek Kundra, chief technology officer for the District of Columbia, is putting Apple's smartphone -- along with Panasonic Toughbook laptops -- into the hands of public safety responders in a bid to make it easier for the police force to respond to incidents and process crime reports.
Police officers can use the iPhone to run traffic checks, track patrol routes and better respond to incidents, says Kundra.
"We are trying to create a cultural shift in public safety needs," he says. "The idea is to change from using radios and simple data devices to something that can facilitate real-time and two-way information exchange."
Kundra says he zeroed on iPhones after testing devices from Samsung, Nokia and BlackBerry maker Research In Motion.
"Apple has done an amazing job with the user interface," says Kundra. "The browser application and application integration is so simple that adoption becomes a lot easier in terms of change management, which is what we are driving for."
The D.C. government has been testing the iPhones since Apple launched a beta program for the device among enterprises. About 75 iPhones are being used in the areas of public safety, education and healthcare.
Kundra says he realized consumer technologies have greater use for public deployment than expensive enterprise solutions because they are easy to use and are low cost.
"The first time I walked out in D.C. I realized I have more computing power in my hand than the average police officer or teacher," says Kundra. "Traditionally we have invested in massive multi-million dollar initiatives that have never lived up to their promise. But if you look at the consumer space, whether it is with the iPhone or Google Apps it works well and is less expensive." [Mark Godsey]
No Charges Expected in Dismissal of Attorneys
A Justice Department investigation offers a blistering critique of the political motivations that led to the firings of a group of United States attorneys in late 2006 but stops short of recommending criminal charges against former Attorney General Alberto R. Gonzales or others in the affair, officials said.
The Justice Department’s inspector general and its Office of Professional Responsibility have been investigating the firings since last year, trying to determine who in the Bush administration ordered the firings, whether the dismissals were intended to thwart investigations and whether anyone had broken the law in carrying out the firings or in testifying about them.
Officials with the department refused to discuss the report in advance of its scheduled release on Monday, though it has been the subject of Web reports since Friday. A lawyer for Mr. Gonzales declined to comment.
Mr. Gonzales, who resigned last year after coming under criticism because of the firings, has been the main focus of interest, in part because several members of Congress charged that he may have perjured himself in his testimony through his memory lapses and misstatements about the firings.
But officials with knowledge of the inspector general’s investigation and defense lawyers who have been involved in it said they did not expect that the investigation would recommend that criminal charges be pursued at this point against Mr. Gonzales or other officials. The report was expected to recommend that investigators continue to pursue some elements of the case, meaning that the legal questions around Mr. Gonzales would continue.
One former official with knowledge of the investigation, who like others spoke about the report only on condition of anonymity, said that much of the criticism in the findings was expected to center on Kyle Sampson, who was Mr. Gonzales’s chief of staff and carried out the firings of eight prosecutors. [Mark Godsey]
September 29, 2008
Prosecutor Appointed to Investigate U.S. Attorney Firings
An internal Justice Department investigation concluded Monday that political pressure drove the firings of several federal prosecutors in a 2006 purge, but said that the refusal of major players at the White House and the department to cooperate in the year-long inquiry produced significant “gaps” in its understanding of the events.
At the urging of the investigators, who said they did not have enough evidence to justify recommending criminal charges in the case, Attorney General Michael B. Mukasey appointed the Acting United States Attorney in Connecticut, Nora Dannehy, to continue the inquiry and determine whether anyone should be prosecuted.
The 356-page report, prepared by the department’s inspector general and its Office of Professional Responsibility, provides the fullest picture to date of an episode that opened the Bush administration up to charges of politicizing the justice system. The firings of nine federal prosecutors, and the Congressional hearings they generated, ultimately led to the resignation of Attorney General Alberto Gonzales last September.
The investigation, which uncovered White House e-mail messages not previously made public, offered a blistering critique of Mr. Gonzales’s management of the department. It called Mr. Gonzales “remarkably unengaged” in overseeing an unprecedented personnel review, and said that he “abdicated” his administrative responsibilities, leaving those duties to his chief of staff. It said that the process for deciding which prosecutors were fired was “fundamentally flawed.”
More troubling, the investigation concluded that, despite the denials of the administration at the time of the controversy, political considerations played a part in the firings of at least four of the nine prosecutors.
The most serious case, the report said, was the firing of David Iglesias, the former United States Attorney for New Mexico, who had tangled with two of his state’s leading Republican lawmakers, Senator Pete Domenici and Representative Heather A. Wilson, over what they saw as his slow response to voter fraud and political corruption accusations against Democrats in New Mexico.
“We concluded,” the inquiry said, “that complaints from New Mexico Republican politicians and party activists to the White House and the Department about Iglesias’s handling of voter fraud and public corruption cases led to his removal.”
But in looking into the Iglesias firing and others, investigators were hampered by the refusal of the White House to turn over internal documents and to make some major figures available for interviews. Investigators interviewed some 90 people, but three administration officials who played a part in crucial phases of the firing plan — Karl Rove, the former political advisor to President Bush; Harriet E. Miers, the former White House counsel; and Monica M. Goodling, former Justice Department liaison to the White House — all refused to be interviewed.
Read full article here. [Brooks Holland]
September 28, 2008
Colorado sex-crime database perplexes
When President Bush signed the Adam Walsh Act into law, it required states to contribute to a national database of sex offenders with more current and stringent registration requirements.
But states and American Indian tribes are having a tough time implementing some of the requirements of the 2006 law — such as making the names and addresses of juvenile sex offenders available on the Internet.
In Colorado, officials have met for more than a year to decide whether to comply with the Adam Walsh Act by July or lose $240,000 in federal funding.
And it may be worth losing the money since it could cost more to fulfill the law's requirements.
"I think at this point, the committee has not reached a final conclusion," said Chris Lobanov-Rostovsky, program director of Colorado's Sex Offender Management Board. "We are looking at the fact that this is an unfunded mandate. The other issue is that the committee and the state are committed to doing what is best for safety and victim protection. And looking at this act, is it going to further the cause?"
The Justice Policy Institute, a Washington think tank that promotes alternatives to prison incarceration, has estimated that the law would cost Colorado $7.8 million to implement.
Lobanov-Rostovsky said that figure sounds too high — unless it figures in the cost to all local law enforcement statewide — but he has not come up with his own cost estimate yet.
This fall, the committee is expected to present a preliminary recommendation to Gov. Bill Ritter to decide on compliance.
"The money is not necessarily there, and does it make sense above and beyond that even if the money were there?" Lobanov-Rostovsky asked. [Mark Godsey]
Opponents of Tough Federal Sentencing Rules Take Up Heller for Help
The federal judge that sentenced Weldon Angelos to 55 years and one day in prison in 2004 said his hands were tied by mandatory-minimum gun laws, calling his own sentence "unjust, cruel, and even irrational."
Now a law professor and a group of Am Law 200 lawyers are challenging the sentence on unique grounds: that Heller v. District of Columbia, the case celebrated as a definitive victory for gun rights, protects Angelos and others like him convicted of gun crimes.
Douglas Berman, a law professor at the Moritz College of Law at The Ohio State University, devised the strategy with help from attorneys at Steptoe & Johnson and Snell & Wilmer.
Angelos is hoping to have his sentence overturned by the U.S District Court in Salt Lake City after a federal appeals court upheld it in 2006 and the U.S. Supreme Court denied cert.
Berman knows Heller's core supporters--the National Rifle Association, for example--don't typically overlap with individuals who are tough on criminal sentences. But he believes Heller should make it harder to tack dozens of years on to a prison sentence simply because someone happens to own a gun.
"Most people think I'm crazy at first," says Berman, who writes the popular blog Sentencing Law and Policy. "I'm fighting people on the left who think this guy's a bad person just because he touched a gun, and I'm fighting people on the right who like guns but don't like people like (Angelos) with guns."
Three gun charges carrying a combined mandatory minimum sentence of 55 years account for all but one day of Angelos's prison sentence.
The first-time offender sold marijuana to an informant three times in 2002. The informant said he saw a handgun on Angelos during two of the deals--once in the console of Angelos's car, and once in an ankle holster. Angelos never displayed or threatened to use the gun (which was determined to have been stolen), but the government charged Angelos with two counts of possession of a firearm in furtherance of a drug crime. The first count carries a minimum five-year sentence. Each subsequent count nets another 25 years. [Mark Godsey]
More hurt in spring prison riot than originally reported
The April riot that left two inmates dead at the U.S. Penitentiary in Florence lasted nearly a half-hour and injured six times the number of people the Bureau of Prisons announced at the time, according to an incident report obtained by the Rocky Mountain News.
Thirty inmates and a staff member were assaulted in the racially motivated brawl, a report written by a Bureau of Prisons investigator states.
When the riot occurred, prison officials said five people - all inmates - were injured.
They would not say how long the riot lasted.
On Tuesday, Democratic Sen. Ken Salazar sent a letter to Bureau of Prisons Director Harley G. Lappin, urging him to release reports on the riot to the public.
Salazar asked Lappin shortly after the riot for a full briefing once the bureau's investigation is complete, particularly in regard to staffing levels.
"The people of Colorado, especially those in the communities surrounding the USP, deserve the assurance that the BOP is taking the steps necessary to improve security at the facility and prevent terrible incidents like this in the future," Salazar wrote in Tuesday's letter.
BOP spokeswoman Traci Billingsley has said that while some incident reports have been issued to inmates, the riot still is being investigated.
The riot broke out in the recreation yard around noon April 20, after white inmates celebrating Adolf Hitler's birthday made racial comments to black inmates, authorities said. [Mark Godsey]