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Saturday, February 16, 2008

En Banc Sixth Circuit Holds Halbert v. Michigan Does Not Apply Retroactively on Federal Habeas Review

The en banc Sixth Circuit yesterday held in an 8-5 vote that Halbert v. Michigan does not apply retroactively on federal habeas review.  In Halbert, the Supreme Court held that the Fourteenth Amendment requires appointment of counsel for appeals of plea-based convictions even under Michigan's unique system that made those appeals discretionary rather than as of right.  Since that Court has used Gideon v. Wainwright as the rare example of a watershed case that would properly apply retroactively, one would think that Halbert might be a good candidate for retroactivity.  Not so, says the Sixth Circuit.  Interestingly, the en banc majority adopts the dissent from the earlier panel hearing rather than writing a full opinion.  You can read the decision here. [Mike Mannheimer]

February 16, 2008 | Permalink | Comments (0) | TrackBack (0)

En Banc Ninth Circuit Holds That When a Suspect in Custody Says "I Plead the [F]ifth," He Has Invoked His Miranda Right to Remain Silent

The en banc Ninth Circuit yesterday reversed a denial of habeas relief to a state prisoner convicted after his statements to police were admitted into evidence, where those statements were the result of an interogation during which he said, "I plead the [F]ifth."  The California Court of Appeals had determined that this apparent invocation of the right to remain silent was ambiguous inasmuch as it may have referred only to a single line of questioning regarding the suspect's drug use rather than the murder for which he ultimately was convicted.  That court also determined that the police officer's follow-up question -- "Plead the [F]ifth?  What's that?" -- was a legitimate clarifying question rather than an effort to "play dumb" and keep the suspect talking.  The Ninth Circuit held that the former conclusion was an unreasonable application of Miranda and the latter was an unreasonable determination of the facts.  You can read the opinion here. [Mike Mannheimer]

February 16, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2008

New York's Attorney General Accuses United Health of Fraud

From NPR.com: New York Attorney General Andrew Cuomo is suing United Health, one the nation's largest health insurers, and demanding information from more than a dozen others. He accuses the industry of manipulating data so it can charge patients an unfairly high portion of the bill for out-of-network doctors.

Listen. . . [Mark Godsey]

February 14, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Seton Hall Law Students Discover the Government Records Guantanamo Bay Interrogations

Seton Hall Law’s Center for Policy and Research has discovered new evidence of a longstanding government practice of recording interrogations at Guantánamo Bay. In light of the national debate about the Central Intelligence Agency’s (CIA) destruction of video recordings, the report proves that the two CIA tapes that were destroyed were only a tiny fraction of perhaps 24,000 recorded interrogations.

A May 2005 report by Lieutenant General Kevin Kiley confirms that each interrogation at Guantánamo was videotaped. Lieutenant General Randall Schmidt issued a report the following month stating that more than 24,000 interrogations of detainees took place at Guantánamo over a three-year period. In the meantime, the Bush administration has announced it will pursue the death penalty for six detainees who will stand trial for crimes related to the attacks of September 11, 2001.

Professor Mark Denbeaux, Director of the Center for Policy and Research at Seton Hall Law, commented, “Our students proved that Guantánamo interrogations were videotaped, which impacts the impending trials of the six detainees. We all want to see the perpetrators of 9/11 punished. But if the tapes of those interrogations still exist, it is imperative that we understand, before these trials start, whether the information was obtained through standard interrogation procedures or through torture.”

Captured on Tape, the Center’s seventh Guantánamo Report, is based entirely on the government’s own documents, most of which were procured through Freedom of Information Act suits. The prior Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee, the House Appropriations Committee, and the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security; and introduced into the Congressional Record.

[Mark Godsey]

February 14, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2008

CrimProf Mary Leary Discusses Protocols Needed in Online Child Exploitation Cases

Leary It’s a crime in which the victim is also the criminal—so whom do you prosecute? Underage youths who exploit themselves online can be subject to criminal pornography charges, explained child abuse expert Catholic University CrimProf Mary Leary at a Law School event Feb. 5, but so far courts are applying the law unevenly. Leary, the former deputy director for the Office of Legal Counsel at the National Center for Missing and Exploited Children and the former director of the National Center for the Prosecution of Child Abuse, proposed a better way to deal with what she called “self-exploitation” cases.

 

Leary, currently an assistant visiting professor of law at Catholic University, spoke to a crowded room of more than 60 Virginia Law students at the event, sponsored by the Virginia Journal of Law and Policy. Leary is writing an article on the subject for the journal. Virginia Law professors Anne Coughlin and Stephen Smith responded to her  remarks.

 

Juveniles or teens are practicing “self-exploitation when they take sexually explicit photos of themselves and others and distribute them, without coercion or grooming from an adult," Leary said. She cited recent news stories from several states in which teens had taken photos of themselves or others using their cell phones, the images of which were then distributed to friends, some of which ended up on unrelated Internet sites.

 

“The reality is that whenever a juvenile …creates the images of sexually explicit activities and then distributes them, they have now produced child pornography and they have now distributed it,” she said.

 

Prosecutors are unsure how to proceed. “On the one hand we have taken…a very aggressive stance with regards to child pornography…and consequently we have pretty severe criminal penalties,” she said. Pointing to the more lenient juvenile court model, Leary continued, “On the other hand…we recognize that often destructive behaviors by a minor can be the result of someone perhaps not fully mature enough to appreciate the social harm of the activity they are causing.” Rest of Article. . . [Mark Godsey]

February 13, 2008 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

Yet Another Man Exoneration Due to DNA Testing

From msnbc.com: Last week sheriff’s deputies in Chickasaw County, Miss., arrested Justin Albert Johnson for the 1992 rape and murder of a 3-year-old girl.

What makes the case noteworthy is that another man, Kennedy Brewer, was convicted and sentenced to death for the same crime. Brewer spent 12 years in various prisons and jails, including death row, at the Mississippi State Penitentiary in Parcham.

DNA evidence exonerated Brewer in 2001. But because certain prosecutors were reluctant to admit they made a mistake, Brewer remained imprisoned until last August. Charges against him are still technically pending, but they will likely be dropped soon.

Brewer’s case is yet another victory for the Innocence Project, a non-profit group that used DNA evidence to overturn 212 cases since 1992. Fifteen of the accused had been sentenced to death.

Rest of Story. . . [Mark Godsey]

February 13, 2008 in DNA | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2008

Justice Scalia Stands Behind Physical Interrogation in Certain Cases

Court_front_med From Reuters.com - Conservative U.S. Supreme Court Justice Antonin Scalia said on Tuesday some physical interrogation techniques can be used on a suspect in the event of an imminent threat, such as a hidden bomb about to blow up.

   

In such cases, "smacking someone in the face" could be justified, the outspoken Scalia told the BBC. "You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good.'"

   

His comments come amid a growing debate about the Bush administration's use of aggressive interrogation methods on terrorism suspects rights after the September 11 attacks, including the use of a widely condemned interrogation technique known as waterboarding.

   

Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" also applied to "so-called" torture.

   

"To begin with the Constitution ... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.

   

Scalia said stronger measures could be taken when a witness refused to answer questions.

   

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked. Rest of Article. . . [Mark Godsey]

February 12, 2008 | Permalink | Comments (0) | TrackBack (0)

New FISA Provides Greater Protections for Americans

From NPR.com:   A standoff in the Senate over expanding the government's eavesdropping powers has finally come to a conclusion. Sens. John McCain and Barack Obama left the campaign trail to join in a series of votes to amend the wiretapping bill backed by the White House. The Senate then passed the legislation 68-29.

The Senate's version of the Foreign Intelligence Surveillance Act provides greater protections for Americans targeted for surveillance. It also gives legal immunity to phone companies that cooperated in President Bush's warrantless wiretapping program.

The bill must be reconciled with the House bill, which contains no immunity. Listen. . . [Mark Godsey]

February 12, 2008 in Homeland Security | Permalink | Comments (0) | TrackBack (0)

New FISA Provides Greater Protections for Americans

From NPR.com:   A standoff in the Senate over expanding the government's eavesdropping powers has finally come to a conclusion. Sens. John McCain and Barack Obama left the campaign trail to join in a series of votes to amend the wiretapping bill backed by the White House. The Senate then passed the legislation 68-29.

The Senate's version of the Foreign Intelligence Surveillance Act provides greater protections for Americans targeted for surveillance. It also gives legal immunity to phone companies that cooperated in President Bush's warrantless wiretapping program.

The bill must be reconciled with the House bill, which contains no immunity. Listen. . . [Mark Godsey]

February 12, 2008 in Homeland Security | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2008

Men Rob Zurich Museum of a Cezanne, Degas, van Gogh, and Monet

From latimes.com: Three armed men in ski masks stole four paintings by Cezanne, Degas, van Gogh and Monet worth $163.2 million from a Zurich museum in one of Europe's largest ever art heists, police said today.

The robbers, who were still at large, stole the paintings Sunday from the E.G. Buehrle Collection, one of Europe's finest private museums for Impressionist and post-Impressionist art, police said.

It was the largest art robbery in Switzerland's history and one of the biggest ever in Europe, said Marco Cortesi, spokesman for the Zurich police. He compared it to the theft in 2004 of Edvard Munch's "The Scream" and "Madonna" from the Munch Museum in Norway.

The three masked men wearing dark clothing entered the museum a half-hour before closing Sunday, police said. While one of the men used a pistol to force museum personnel to the floor, the two others went into the exhibition hall and collected the four paintings.

One of the men spoke German with a Slavic accent, police said. They loaded the paintings into a white vehicle parked in front of the museum.

Police, asking for witnesses to come forward, said it was possible that the paintings were partly sticking out of the van as the robbers made their getaway. Rest of Article. . . [Mark Godsey]

February 11, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Sullofol County NY PLans to Videotape all Interrogations

From newsday.com: Suffolk, NY's plan to begin videotaping police interrogations of homicide suspects has been several months in the making, and largely prompted by jurors' requests for more transparency in the taking of confessions, Suffolk District Attorney Thomas Spota said yesterday.

The new protocol was announced Wednesday by County Executive Steve Levy. It should result in stronger evidence and fewer questions about what takes place in an interrogation room, Spota said.

"I just think that this is the natural evolution of the interrogation process," said Spota, who expects to have the new process in place by the end of the year. "And quite frankly, I'm aware that it will increase the public's confidence ... in the integrity of the police's interrogations and their tactics."

Rest of Article. . . [Mark Godsey]

February 11, 2008 in Criminal Justice Policy | Permalink | Comments (0) | TrackBack (0)

Us Seeks the Death Penalty for Six Detainees

From NYTimes.com: Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday.       

The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.

A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The officials spoke anonymously because no one in the government was authorized to speak about the case.

A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial
[Mark Godsey]

February 11, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Nebraska Supreme Court Declares Death by Electrocution Unconstitutional

From nytimes.com:  The electric chair is cruel and unusual punishment, the Nebraska Supreme Court ruled Friday, effectively suspending executions in the only state that made sole use of the practice, once the dominant form of execution in the United States.  The court, in a 6-to-1 decision, ruled that electrocution, the only method of execution used in the state, violates the state constitution. “The evidence shows that electrocution inflicts intense pain and agonizing suffering,” Justice William Connolly wrote for the majority.  Rest of Article [Mike Mannheimer]

February 11, 2008 in Capital Punishment | Permalink | Comments (0) | TrackBack (0)

CrimProf Henry Karlson Discusses Smothered Baby Case

Karlson1 From indystar.com: Indiana University School of Law-Indianapolis CrimProf Henry Karlson discusses the case of an Indianapolis woman accused of smothering her son by passing out on top of him began drinking gin as much as 12 hours earlier.

Marion County prosecutors filed a single neglect charge Friday against Latasha McMorris. A few hours earlier, the sobbing mother had her first court appearance.
McMorris, 24, now faces the prospect of 20 to 50 years in prison if she is convicted of causing the death of her 2-year-old son. Sheldon Bartley Jr. died about an hour after McMorris' boyfriend found him beneath her just after midnight Wednesday at an Eastside motel.

CrimProf Henry Karlson rejected the idea that the incident was an accident."A drunken driver who travels at 150 mph and hits a school bus and kills children -- is that an accident?" Karlson said. "I think they charged this case the correct way." Rest of Article. . . [Mark Godsey]

February 11, 2008 in CrimProfs | Permalink | Comments (0) | TrackBack (0)

CrimProf Abraham Dash Comments on the Exclusion of Evidence in Homeland Official's Murder Trial

Adash From washingtonpost.com: University of Maryland School of Law CrimProf Abraham Dash comments on the evidence being excluded in the trial in which homeland security official Keith Washington is accused of shooting two unarmed furniture delivery men.

Evidence about a psychiatrist's report in 1995 that said Washington, then a police officer, had "fleeting homicidal and suicidal thoughts" and "fits of internal rage" will not be admitted, a judge has ruled. Allegations that Washington used excessive force during his more than 16 years as an officer, including two incidents that led two lawsuits, will probably not be mentioned, except to rebut other evidence, legal experts said.

"It does complicate matters for the state's case in chief," the portion of the trial when the prosecution presents its evidence, said CrimProf Abraham Dash.

"But the defense has to be very careful, too," he said. "I don't see how the defense can avoid putting Washington on the stand. That can open a lot of problems." Rest of Article. . . [Mark Godsey]

February 11, 2008 in CrimProfs | Permalink | Comments (0) | TrackBack (0)