Wednesday, February 27, 2008
From NPR.com: Five former insurance executives, including a top official from AIG and a former CEO of insurance giant General Re, were convicted on federal charges Monday. Prosecutors say they schemed to improperly inflate AIG's financial numbers. Listen. . . [Mark Godsey]
From thestate.com: The prison law clerk who convinced the U.S. Supreme Court to hear a fellow inmate's case is being investigated by South Carolina authorities for practicing law without a license, the prisoner's attorney said.
Lawyer Rauch Wise said the state attorney general's office informed him last week they were investigating Michael Ray, a federal inmate in South Carolina.
Ray helped fellow inmate Keith Lavon Burgess appeal his conviction for possession of crack cocaine with the intent to distribute. In the appeal, which the U.S. Supreme Court is scheduled to hear on March 24, Burgess is arguing that a prior drug conviction prosecutors used to get him the 20-year minimum prison sentence shouldn't have applied because it was a misdemeanor instead of a felony.
Conflicting court rulings have required 10-year sentences for people already convicted of misdemeanors, so a successful appeal could trim Burgess' sentence in half.
Ray, who is a member of the American Bar Association and certified paralegal, earns 29 cents an hour for his work but charges no other fees for his services, Wise said.
"If an inmate were charging for services rendered, that would be some grounds to go after the inmate," Wise said. "But when an inmate is in jail, who is trying to prepare his own petition of whatever sort, and he turns to another inmate and says, 'Can you help me with this?' - that just does not offend me."
Someone convicted of practicing law without a license in South Carolina could face up to two years in prison and a $5,000 fine. Rest of Article. . . [Mark Godsey]
Tuesday, February 26, 2008
From miamiherald.com: Two weeks after the Pentagon announced plans to stage death-penalty trials for six Guantánamo captives as alleged Sept. 11 co-conspirators, none of the men has seen a military defense lawyer.
Only one of the six has an assigned lawyer, U.S. Army Lt. Col. Bryan Broyles. But Broyles failed to see his client during a Feb. 13-16 visit to the isolated Navy base.
Lawyer visits will be a key precursor in the Pentagon's bid to put Khalid Sheik Mohammed and five other alleged 9/11 co-conspirators on trial. On Feb. 11, the Pentagon announced plans to simultaneously try the men by military commission -- and to seek to execute them if they are convicted.
But Army Reserves Col. Steve David said so far he had only assigned Broyles to the complex six-defendant case -- to defend Mohammed al Qahtani, a Saudi considered the least valuable captive among the six men.
Broyles blamed the prison camps lawyer, Navy Capt. Patrick McCarthy, for placing obstacles in the path of his bid to meet Qahtani in the company of a civilian lawyer, Wells Dixon, of the Center for Constitutional Rights.
The Army colonel told The Miami Herald he went to the base specifically to meet Qahtani and another Saudi war-court candidate, Ahmed al Darbi, with Dixon -- and was thwarted by the military, not the detainees, on both counts.
In a statement, the prison camps spokesman, Navy Cmdr. Rick Haupt, blamed the conflict on defense lawyers -- describing their failure to comply with prison camp bureaucracy and on scheduling conflicts. But, in the end, Haupt said, the bureaucracy issues were ''moot'' because Darbi and Qahtani refused to meet the military defense lawyer at their assigned time.
A core issue is Broyles' bid to have Dixon join the meetings with the men -- who claim brutal treatment in U.S. custody.
Absent an introduction by the civilian lawyer, Broyles said, the detainee might not believe he is there to help in his defense and instead suspect an interrogation trick.
Qahtani was once known as The 20th Hijacker, suspected of failing to join the 19 other suicide bombers in the 9/11 attacks because he was turned away from entry into the United States at an Orlando airport.
Rest of Article. . . [Mark Godsey]
The Texas Journal on Civil Liberties & Civil Rights will host its annual symposium, “The Roberts Court and the Future of the Fourth Amendment,” on Monday, March 3, 2008. The symposium will address developments in Fourth amendment jurisprudence since the appointment of Chief Justice Roberts, the ramifications of those developments, and what clues those developments may provide as to which direction the Court may take in future.
Beginning with the 2005 term, with the inaugurations of Chief Justice John Roberts and Justice Samuel Alito still fresh, the Court’s newly formed conservative bloc set in motion what promises to be a continuous struggle within the Court for some of the core tenants of the Fourth Amendment. The symposium will explore two aspects of this struggle: the continuing validity and use of the exclusionary rule and the proper balance between personal privacy and autonomy and the State’s competing interest in enforcing the law.
This Symposium will provide an opportunity to better understand the Roberts Court’s Fourth Amendment decisions and the significant impact that they have on the law. It will also provide an opportunity for students interested in pursuing careers in criminal justice or constitutional law to meet lawyers and judges practicing in this area.
The symposium will commence with an address by keynote speaker, Thomas C. Goldstein, at 11:30 a.m. in the Sheffield Room at the University of Texas School of Law. Rest of Article. . . [Mark Godsey]
Monday, February 25, 2008
From clarionledger.com: An attorney for a New York woman charged with manslaughter in the 2003 death of her 3-year-old daughter in Jackson wants the state to review the autopsy findings.
State pathologist Dr. Steven Hayne ruled that the child died of suffocation. Under state law, a petition can be filed with the state medical examiner, asking for further review of an autopsy conclusion.
But Tina Funderburk's attorney, Hinds County Assistant Public Defender Matthew Eichelberger, said that since there is no state medical examiner, his request might be moot.
"This further review is even more important in Tina's case because of the strange manner in which Dr. Hayne reached his conclusion," Eichelberger said.
Hayne reached his decision after a forensic anthropologist at the University of Southern Mississippi said she couldn't determine the cause of death from the remains, Eichelberger said.
Funderburk, 32, is charged with killing Reina Russell. Funderburk told police she left the child in June 2003 in a wooded, swampy area near the old Jackson Greyhound bus terminal on Jefferson Street. She was passing through with her daughter and son on a bus trip from New York.
Funderburk said she lost her way when she went back to get the child. Authorities later found the child's remains.
Hinds County Coroner Sharon Grisham-Stewart asked Hayne to perform an autopsy on the child's remains. Hayne then engaged the services of Dr. Marie Danforth, a forensic anthropologist, to determine the cause of death, according to Eichelberger.
In the petition for further review, Eichelberger said, "Despite the fact that Dr. Danforth could determine neither the cause or manner of death, Dr. Hayne reported to Ms. Grisham-Stewart the cause of death was suffocation."
The petition said Grisham-Stewart accepted Hayne's conclusion without further review or investigation. Hayne said Tuesday he only vaguely remembers the case, but he couldn't discuss it because it was still an open case.
Hayne's work has come under scrutiny in several recent cases. Rest of Article. . . [Mark Godsey]
The justices agreed to hear an appeal by Arizona officials of a ruling declaring such searches unconstitutional when the scene has been secured and the suspect has been handcuffed and placed in the back of a patrol car under police supervision.
The high court's conservative majority in recent years has generally
sided with the police while cutting back on the rights of criminal
suspects in car cases.
The U.S. Constitution protects suspects against unreasonable searches and seizures of evidence.
The Arizona case will require the Supreme Court to reexamine its 1981 ruling that risks to officer safety and the preservation of evidence justify a warrantless car search as part of the arrest.
Arizona officials said the state Supreme Court effectively overruled the 1981 ruling in requiring that the police show that inherent dangers actually existed at the time of the search.
The case began in 1999 when the police in Tucson received a tip of drug activity at a house. Two officers went to the house, and when Rodney Gant answered the door he told them the owner was not home, but would return later in the day.
The officers left, but then discovered Gant had a suspended driver's license and an outstanding warrant for driving on a suspended license. Rest of Article. . . [Mark Godsey]
From NPR.com: A new report finds more convicted sex offenders in California homeless because of a state law restricting where they can live. Tom Tobin, a psychologist specializing in sex offender treatment, talks with Jacki Lyden about the findings. Listen. . . [Mark Godsey]
Yale Law School Ford Foundation CrimProf James Whitman recently wrote "What are the the Origins of Reasonable Doubt?" Here is an excerpt:
As everybody knows, no person in the United States of America can be convicted of a crime unless that person’s guilt is proven “beyond a reasonable doubt.” It would be hard to name a legal doctrine more familiar to the general public. For that matter, it would be hard to name a legal doctrine more basic to the American sense of justice. American criminal law would be unimaginable without the reasonable doubt standard. Indeed, the requirement of proof “beyond a reasonable doubt” is so fundamental that the Supreme Court has read it into our constitutional law, even though the phrase “reasonable doubt” appears nowhere in the Constitution.
But what exactly is proof “beyond a reasonable doubt”? Anyone who has served as a criminal juror knows that the rule is not easy to understand. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal “doubt”? Exactly when are legal “doubts” about the guilt of the accused “reasonable”? Jurors are sometimes understandably baffled. Even the some of the most sophisticated members of the legal profession find the question too difficult to answer.
The result is a troubling situation indeed. Once a jury has determined a person to be guilty “beyond a reasonable doubt,” that person’s fate is almost always sealed. Even the emergence of new evidence, like the evidence of DNA testing, may not be enough to reopen a criminal case. Yet judges and legal scholars have come to the conclusion that the phrase “reasonable doubt” can be assigned no definitive meaning. A moral philosopher might raise disturbing questions indeed about this state of affairs. How you can send somebody to prison, or even to death, on the strength of a rule that nobody understands?
Rest of Article. . . [Mark Godsey]
New Article Spotlight: Regulating the New Regulators: Current Trends in Deferred Prosecution Agreements
From SSRN.com: Peter Spivack and Sujit Raman of Hogan & Hartson LLP recently published Regulating the "New Regulators": Current Trends in Deferred Prosecution Agreements. Here is the abstract:
Deferred prosecution and non-prosecution
agreements are proliferating. Prosecutors and major corporations
entered into twice as many of these agreements between 2002 and 2005 as
in the previous ten years combined; thirty-seven such agreements were
concluded in 2007 alone. As pretrial diversion becomes the standard
means for concluding corporate criminal investigations, it is becoming
increasingly clear that a fundamental shift in the purpose and function
of the criminal law in the corporate context has quietly taken place.
In a post-Enron world, Department of Justice (DOJ) officials appear to
believe that the principal role of corporate criminal enforcement is to
reform corrupt corporate cultures - that is, to effect widespread
structural reform - rather than to indict, to prosecute, and to punish.
By focusing more on prospective questions of corporate governance and
compliance, and less on the retrospective question of the entity's
criminal liability, federal prosecutors have fashioned a new role for
themselves in policing, and supervising, corporate America. They have
become the New Regulators.
Remarkably, this important policy shift has occurred in the absence of any public guidance from DOJ leadership. Even more remarkably, this signficant shift has sparked little discussion in the nation's broader policy discourse - until now.
As Congress actively considers legislation that would direct DOJ leadership to issue appropriate guidance regarding DPAs and NPAs, this Essay provides an introduction to many of the key issues, offers a background history of the rise of corporate pretrial diversion, and explores several of the significant trends that emerged in 2007. While recent legislative interest is focused on the selection and payment of DPA-imposed federal monitors, this Essay suggests that pretrial diversion in fact impacts a range of important legal concepts, including federal-state relations, the separation of powers, and the basic role of the prosecutor.
In light of the considerable inconsistencies in current prosecutorial practice, this Essay argues that DOJ leadership should take appropriate action and issue much-needed guidance. Failing that, DPAs and NPAs may be a ripe and necessary area for legislative intervention. [Mark Godsey]