CrimProf Blog

U.S. to collect DNA samples of arrested immigrants

Beginning today, the U.S. government will collect DNA samples from people arrested and detained for suspected immigration violations, despite concerns that the move violates their privacy rights.

The new Justice Department policy also will expand DNA collection to people arrested on suspicion of committing federal crimes. Previously, the government only obtained DNA from people convicted of certain crimes.

The samples will be added to the national database and used to make identifications through comparisons with crime scene evidence, according to the Justice Department.

"The collection of DNA samples is an important crime-fighting and crime-solving tool," said Evan Peterson, a spokesman for the department.

The American Civil Liberties Union said Thursday that it was considering filing a lawsuit and that it would closely monitor the collection of DNA samples.

"We will be looking to see whether mistakes are made," said Barry Steinhardt, director of the ACLU's technology and liberty program.

Steinhardt said he had "grave concerns" about the rapid expansion of the DNA database to include immigrant detainees and people accused of committing crimes.

"People who are merely accused of a crime or a civil violation of law but haven't been convicted of anything are being subjected to the most invasive sort of testing," he said.

Sen. Jon Kyl (R-Ariz.) has said the change is designed to prevent violent crimes by deportees who return illegally. Kyl wrote a 2005 law that authorized the department to include pre-conviction DNA samples in its national database. [Mark Godsey]

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Obstruction of justice charge 'upped the ante' against Kent

The government raised the stakes in the criminal case against U.S. District Judge Sam Kent, now accusing a man who swore to protect the system with thwarting it instead, legal experts said Wednesday.

They said the obstruction of justice charge added with sexual abuse allegations against Kent this week boosts the government's overall case in several ways. That new charge may be the easiest to prove and carries a hefty 20-year sentence. It also takes the matter beyond the "he said/she said" standoff of the sexual charges.

"This has significantly upped the ante," said Arthur Hellman, a federal judicial disciplinary expert and professor at the University of Pittsburgh law school.

"Certainly the sexual charges are very serious. But obstruction of justice is a particularly serious charge when the accused is a federal judge," Hellman said. "If proved, his career — not just as a judge, but as a lawyer — would be over."

Kent, a jurist based in Galveston for most of his career, pleaded not guilty Wednesday to all six federal criminal charges against him. The judge, who still handles only certain civil cases out of a Houston office, has vociferously denied any wrongdoing.

He was indicted in August on three counts of abusive sexual contact or aggravated sexual abuse against a former case manager. [Mark Godsey]

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Colorado Judge Allows Twitter In Courtroom

The courtroom now includes Twitter.

What?  Twitter inside the courtroom?

Yes, it’s true.  A Colorado judge recently approved the use of Twitter, and blogs, inside the courtroom to cover an infant-abuse trial.

Wichita Eagle (Kansas) reporter, Ron Sylvester, pushed for the court to allow the use of Twitter for his courtroom reporting.

Sylvester argued courts are open to the public and the process of reporting with Twitter is similar to writing a story for a newspaper.  However, the major difference in the two mediums is the speed at which the information would be released (Twitter being more immediate).

This was not the first time Sylvester has reported via Twitter from inside the courtroom.  In fact, Sylvester’s Twitter page seems to indicate he frequently reports from inside the courtroom using Twitter.

Lawyers should learn more about these new social media technologies because they are finding ways inside the courtroom.  Judges are now, at least in Colorado, allowing reporters to use Twitter to report live. [Mark Godsey]

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DNA Offers Two Hope

The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn't belong to either of the two men convicted of killing him.

Fingerprints found on the door handle of the store's safe are not theirs, and the state's main witness now admits in a taped interview that she lied when she testified at their trial.

But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.

The men are waiting for a Superior Court judge in Rockville to rule on their legal attempt for a new trial or for New Haven State's Attorney Michael Dearington's office to finish an investigation started two years ago, when questions about the case were first raised.

Taylor, 50, and Gould, 46, are hoping they become the latest Connecticut inmates freed by DNA evidence that proves they didn't commit the crime.

Two weeks ago, Taylor and Gould watched Miguel Roman, who was in the same cellblock at the MacDougall-Walker Correctional Institution in Suffield, walk out of prison after DNA findings exonerated him after he had been convicted of a murder in Hartford. Roman and James C. Tillman, who was released in 2006 after serving 17 years following a rape conviction, won their freedom with the help of public defenders who target dubious convictions.

But Taylor and Gould have an unusual ally in their quest for a new trial. He's Gerald O'Donnell, a former Cheshire cop and state inspector who worked for Dearington before retiring to become a private investigator.

O'Donnell, hired by the public defender's office, spent more than three years reinvestigating DeLeon's murder, producing an 800-page binder complete with taped interviews of witnesses recanting their statements, newly uncovered DNA evidence and interviews with witnesses New Haven police never contacted during the original investigation. [Mark Godsey]

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Controversy surrounds DNA evidence in Yogurt Shop Murders

New DNA evidence and the possible addition of two pro bono defense attorneys added controversy to the Yogurt Shop Murders pretrial Wednesday.

Four young women were found murdered at a North Austin I Can't Believe its Yogurt shop in 1991.

But 17 years later, the suspects accused of killing Amy Ayers, Eliza Thomas and Jennifer and Sarah Harbison are still fighting their convictions.

Michael Scott and Robert Springsteen were back in court Wednesday as controversy swirls around some DNA evidence found on the victims.

More DNA results are giving the defense more argument that their clients are innocent.

"We have the wrong people, there are killers out still," Springsteen's attorney Alexandra Gauthier said.

An early report has found more DNA from three of the four female victims in the case.

The DNA found inside the girls is shown to come from multiple male sources, and none of them match defendants Springsteen and Scott.

"What we need to be doing now is looking for the owners of the DNA we found, of the profiles we've got" Scott's attorney Carlos Garcia said.

These DNA results are preliminary. The final report will go before the court at the next pretrial, at which time the defense will ask the judge to release the clients on bond. [Mark Godsey]

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Survey: ER doctors suspect excessive police force

Nearly 98% of emergency room physicians report that they believe some patients were victims of suspected excessive force by police, a national survey concludes. Yet most of the suspected incidents went unreported because no laws require physicians to alert authorities.

The survey of 315 physicians, contained in the Emergency Medicine Journal's January issue and based on 2002 data, is believed to be the first doctors' account of suspected police brutality, says H. Range Hutson, the lead author and assistant professor of emergency medicine at Harvard.

The responses were based on interactions with patients who were brought in by police or who said officers caused their injuries. Ninety-five percent of the doctors reported injuries caused by fists and feet. Hutson says the survey and analysis of findings were in the works for years.

National police groups challenged the survey, saying it would be hard for physicians to know if injuries resulted from excessive force if they were not present during the encounters.

Unlike cases of suspected domestic violence, elderly abuse and child abuse, which doctors must report to authorities, physicians are not required to notify anyone of suspected excessive force by police, Hutson says.

The report says the findings suggest national emergency medicine groups and police should develop guidelines for "this complex issue."

Criminal justice analysts say the survey represents an important new source of information.

"Excessive force is a huge issue," says Geoff Alpert, a criminologist at the University of South Carolina.

"This is another angle on excessive force that hasn't been looked at."

Hutson says the survey does not necessarily mean abuse is rampant. [Marlk Godsey]

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Truce on hardline sentencing

THE NSW Opposition has pledged to end the "law and order auction" in a dramatic break with the tradition of promising to increase punishments and fill jails that has characterised every state election campaign since 1988.

The Coalition's justice spokesman, Greg Smith, who entered Parliament in 2007 with a reputation as a tough criminal prosecutor, said hardline sentencing and prisons policies - including those of his own party - have failed.

In an exclusive interview, Mr Smith told the Herald he would invest more money and resources in rehabilitation to break the cycle in which almost half of all NSW criminals re-offend after their release.

"I know that for a series of elections there was one side bidding against the other in what they called a law and order auction," Mr Smith said.

"While I think there are some areas where the law could be even tougher, such as showing more concern for the families of victims of homicide, in terms of the harm done to them, there are other areas where I am concerned that prisoners are not properly being rehabilitated, not given a chance to go straight in a community that really would want them to go straight."

Mr Smith likened his move to "Nixon in China". Just as it took an anti-communist US president, Richard Nixon, to open relations with communist China in 1972, it might take a politician with Mr Smith's conservative credentials to push for a bipartisan position on criminal justice. [Mark Godsey]

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Police chief Hurtt calls on city to help curb black deaths

A ministers' organization today called on elected officials to form a committee to study ways to combat rapidly increasing violence among Houston's African-American youth.

"We're going to scream from the rooftop" until elected officials respond by forming a committee to study the problem, said the Rev. Robert Jefferson, pastor of Cullen Missionary Baptist Church.

Jefferson, the director of special projects for Houston Ministers Against Crime, spoke at a news conference the group held a day after Police Chief Harold Hurtt called on local churches, schools, businesses and other organizations to join him in developing innovative ways of addressing an alarming increase in the number of Houston's young black men killing each other.

A national study, released last month, found a 139 percent increase in the number of black suspects in Houston homicides between 2000-01 and 2006-07. That was the largest percentage increase among 28 U.S. cities, according to the study by Northeastern University criminologists James Fox and Marc Swatt.

The number of young black men murdered in Houston jumped from 42 to 129 during the study period. Hurtt called the study a "lightning rod" focusing attention on the problem.

"Success doesn't just happen," Hurtt said. "It takes a lot of work and concerted effort."

The report was released as Hurtt's department announced that 2008's preliminary homicide total is 294 — down more than 16 percent from the previous year. Harris County reported 69 killings, up seven from 2007.

Hurtt and Fox suggested killings involving Hurricane Katrina evacuees contributed to the spike in lethal crimes. Although major crimes involving former Louisiana residents have dropped sharply, Hurtt worried that youth violence will escalate during economic hard times.

Noting that youth violence frequently occurs after school, the police chief advocated that schools increase supervised after-school activities.

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Mike Wolff asks Obama for sentencing reform

Missouri Supreme Court Judge Michael A. Wolff has joined the chief justice of the Oregon Supreme Court in a letter to President-elect Barack Obama calling for "major change in state and federal sentencing practices" that have resulted in the United States imprisoning a larger percentage of its population than any other country.

The letter to Obama and his transition team from Judge Wolff and Chief Justice Paul De Muniz says it is ironic that the United States has become the leader in incarceration at a time when it is "hoping to regain respect as leader of the free world." 

The judges liken society's dependence on prisons to an addiction and called for more community-based options to replace incarceration.

"We use prisons as addicts use drugs," they wrote. "They don’t do what the public expects them to do, so we use them even more, with the result that we need more because prison makes many inmates worse when they return to their communities."

The judges wrote that the "archaic" sentencing policies have resulted in a "disproportionately large share of minorities" in prison even as a disproportionately large share of minorities are victims of crimes.

The judges said that the problems go far beyond the frequently criticized disparties in sentencing for cocaine offenses.  They said that the federal sentencing guidelines are "blind to risk" and "ultimately ignore public safety as an objective."

State and federal sentencing policies were designed to eliminate disparties in sentencing, reduce prison populations and achieve truth-in-sentencing, the judges wrote.  Instead, disparties still exist and prison populations have increased.  The policies have resulted in prison terms closer to the actual sentence, they acknowledged.  But they added that sentencing policies "utterly conceal the truth that federal and most state guidelines have nothing whatever to do with public safety, and result in misallocation of prison resources as measured by public safety outcomes"

Several states have made progress in sentencing reform, they said, including Missouri, Oregon, Wisconsin and Virginia.  Virginia has cut the number of new prisoners it incarcerates by one-fourth without an increase in crime.  It has accomplished the reduction by assessing the risk of the new prisoners.

The judges said that community-based treatment is more effective than prison in many cases because the criminal gets treatment that reduces recidivism. [Mark Godsey]

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Growing old behind bars

The number of older prisoners in Virginia has more than doubled in the past 10 years, creating new issues for the state's prison system.

CAPRON Winter sunshine slices through a narrow security window and falls on Aloysius Joseph Beyrer's white hair, slight shoulders and the linen covering his fractured hip.

Like the rest of the country, Virginia is coping with a growing number of aging inmates. Beyrer, 84, is the state's oldest and his home, the Deerfield Correctional Center, focuses on geriatric inmates.

In 1999, Virginia had 2,015 prisoners 50 or older. Today, there are almost 4,700, and by 2011, state officials expect there to be 5,057.

A drop in the number of paroles granted to inmates who remain eligible is a factor in Virginia's increasing number of older inmates. Truth-in-sentencing reforms that in 1995 led to stiffer, no-parole sentences for violent crimes are expected to contribute to Virginia's aging prison population in coming years.

At Deerfield, wheelchairs and walkers line aisles in the secured assisted-living dormitory, where it would be easy to confuse the frail residents with those in nursing homes. But it would be a mistake to do so.

Beyrer, a veteran of prisons in Virginia and elsewhere, thinks Deerfield, "is pretty good," though security comes first there, even for octogenarians like Beyrer, who is serving 100 years for sex crimes. The prison's goal is to provide older inmates care and some dignity, not freedom.

The warden, Keith W. Davis, who has a master's degree in social work, makes it clear he is not running a spa for the golden years. "This is not a perfect world. We do not have unlimited resources," he said.

Even with a blank check to meet all their medical and mental-health needs, Davis said no one wants to grow old or die in a prison. "That's a big challenge for the staff. . . . We do what we can do, but we can't cure oldness," he said.

"Offenders are like the rest of us. We get old, we get ill, we die," he said. Deerfield provides a continuing-care community, he said, "so they can reach what we believe is their fullest potential -- body, mind and soul."

. . .

Experts say substance abuse, little or no health care before imprisonment and the stress of living behind bars can leave a 50-year-old inmate physiologically 10 to 15 years older than his chronological age.

In general, older inmates require more supervision and medical and mental-health care, as well as special diets, mobility aids and special housing.

Deerfield, Virginia's only prison dedicated to geriatric inmates and inmates with special medical needs, accommodates 1,080 inmates, 90 of them in wheelchairs and 65 percent over the age of 50.

Other older inmates and older female inmates are in prisons such as the Fluvanna Correctional Center for Women and the Greensville and Powhatan correctional centers.

Critics point out that many older inmates are far less likely to commit new crimes and could be released at great savings. Prison officials, however, believe their care would largely be at public expense in or out of prison.

And though older people are less likely to commit crimes, some still do. Beyrer was 67 when he was convicted in Virginia Beach of statutory rape, aggravated sexual battery and forcible sodomy.

Deerfield's head nurse, Bonita Badgett, said 800 of the inmates there have at least one chronic medical condition such as diabetes, high blood pressure or asthma. The prison psychiatrist, Dr. Amit Shah, said the major problem he treats is depression. [Mark Godsey]

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Kansas Man Granted Hearing on DNA Tests

Merrill Andrews was convicted of murder in 1977 and sentenced to life in prison. Having been granted parole in 1999, Andrews is now requesting DNA tests in order to prove his innocence. Although he is currently serving a 10-year sentence for an unrelated crime, Andrews maintains his innocence in the 1977 murder of Nola Babb, a 91-year-old retired businesswoman in Wichita.

Andrews’ request for DNA testing was denied by a Sedgewick County judge, who thought Andrews was misusing a 2001 DNA state law that grants anybody convicted of rape or murder a hearing regarding any forensic evidence relevant to the case. But the Kansas Court of Appeals overruled that decision and ordered the lower court to hold a hearing on Andrews’ request. The hearing will take place later this month.

According to Deputy District Attorney Ann Swegle, the DNA testing law is rarely used in Sedgewick County, and there might be issues with evidence preservation:

"My understanding is that they keep it forever now," she said. "I'm not sure that's always been the case."

Carl Maughan, Andrews’ attorney, said his client has consistently maintained his innocence.

"Yes, he's already done his time, but if you were accused of murder and you were the wrong guy, I would assume you'd want to clear your name," Maughan said. "He just maintains that he's innocent on this charge and wants to get it cleared up."

Read the full story here. (Wichita Eagle, 1/4/09)

Read about previous exonerees in Kansas, Joe Jones and Eddie James Lowery.

Does your state have a law granting access to DNA testing? View our interactive map.

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The Stories Behind The Statistics

A recent report on the rise of young black males being killed in the U.S. continues to raise concern among youth, parents and community leaders. Some say the findings reflect a much larger problem, the failure of society on many levels.

A roundtable of people directly affected by violence share their perspectives. Sylvia Banks, whose son Deon was killed in Detroit in 2003; Karen Graham, a former law enforcement officer whose son Aaron was killed in Milwaukee in 2004, and Ron Moten, of the Washington, D.C.-based group Peaceaholics share stories of loss and offer thoughts on what lies beneath the crisis.

The number of homicides involving black youths — as victims and perpetrators — surged by more than 30 percent from 2002 to 2007, even as overall murder rates across the U.S. have been relatively stable, according to a study released Monday by researchers at Northeastern University.

The study showed that the number of black murder victims rose by more than 31 percent from 2000 to 2007. The number of murders involving young, black perpetrators rose by 43 percent over the same period, according to the study by criminal justice professors James Alan Fox and Marc Swatt.

The report also noted that guns were the weapon of choice in most of the killings.

Last year, 426 black males ages 14-17 died in gun crimes — 40 percent more than in 2000; nearly 1,000 young black males used guns to kill someone in 2007 — 38 percent higher than in 2000.

Fox said the homicide rate for blacks — especially teenagers — has risen steadily and across geographic regions. He said one reason could be the profound shift in priorities since the Sept. 11 terrorist attacks, which means police departments have taken on homeland security duties — often at the expense of community policing.

"Now, I don't want to weigh one life against another, but when you look at it, many more people are murdered every single year in ordinary street violence than were killed on Sept. 11, 2001," Fox said.

Fox also said communities' complacency because of the overall decrease in crime may also be a factor. The study found the number of police officers in major cities has dropped more than 8 percent, and funding for crime prevention programs is down.

Fox said funding cuts disproportionately affect black communities, which suffer from broken families, bad schools and active gangs.

"I know people want their tax rebates and stimuli checks, but you know, a few extra dollars in your pocket is of little consolation if you're staring down the wrong end of a gun," Fox said.

Not all criminologists agree on the difference federal funding could make, but Fox said he hopes the Obama administration will increase funding. Vice President-elect Joe Biden was a driving force behind legislation that put 100,000 cops on the streets in the mid-1990s. [Mark Godsey]

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Dealing With Addiction From The Judge's Bench

As News & Notes takes a month-long look at addiction, we get insight from our regular contributor, Judge Lynn Toler of TV's Divorce Court.

She joins Farai Chideya to discuss her days as a municipal court judge in Cleveland Heights, Ohio, where she saw many cases related to drug addiction.

Listen to "Dealing With Addiction From The Judge's Bench"

Human Rights Watch studied abuses

The Michigan Department of Corrections (MDOC) is currently being sued by seven female prisoners on behalf of all others similarly situated for sexual assault, sexual abuse, sexual harassment, and inappropriate visual surveillance within its correctional facilities for women. The suit comes on the heels of a U.S. Department of Justice (DOJ) finding in 1995 that sexual misconduct pervades Michigan's women's prisons, including rape, sexual abuse, sexually aggressive acts by guards, and violations of the female prisoners' legitimate privacy interests. Our own investigation, conducted from 1994 through 1996, and based on interviews with current and former female prisoners as well as attorneys, prisoner rights advocates, and MDOC, revealed that rape, sexual assault or abuse, criminal sexual contact, and other misconduct by corrections staff are continuing and serious problems within the women's prisons in Michigan have been tolerated over the years at both the institutional and departmental levels.

Rather than seeking to end such abuse, the Michigan Department of Corrections has consistently refused to acknowledge that there is a problem of sexual misconduct in its women's prisons. As noted below, MDOC dismissed the female prisoners' class action suit as "erroneous" and issued a written statement characterizing the DOJ's findings as "vindictive and distorted" and "full of half truths, innuendo, distortion and lies." (658) The state has taken the positive steps of establishing minimal grievance and investigatory procedures as well as disciplinary and criminal sanctions for custodial sexual contact; however, its stated policy of "zero tolerance" for such abuse is belied by a pervasive bias against prisoner testimony, a high incidence of retaliation against complainants, and a consistent problem with the enforcement of appropriate penalties. [Mark Godsey]

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Kidnappings in Mexico Send Shivers Across Border

Four hooded men smashed in the door to the adobe home of an 80-year-old farmer here in November, handcuffing his frail wrists and driving him to a makeshift jail. They released him after relatives and friends paid a $9,000 ransom, which included his life savings.

The kidnapping was a dismal story of cruelty and heartbreak, familiar all across Mexico, but with a new twist: the daughter of this victim lived in the United States and was able to wire money to help assemble his ransom, the farmer, who insisted that he not be identified by name, said in an interview.

A string of similar kidnappings, singling out people with children or spouses in the United States, so panicked this village in the state of Zacatecas that many people boarded up their homes and headed north, some legally and some not, seeking havens with relatives in California and other American states.

“The relatives of Mexicans in the United States have become a new profit center for Mexico’s crime industry,” said Rodolfo García Zamora, a professor at the Autonomous University of Zacatecas who studies migration trends. “Hundreds of families are emigrating out of fear of kidnap or extortion, and Mexicans in the U.S. are doing everything they can to avoid returning. Instead, they’re getting their relatives out.”

The reported rush into the United States by people from the state of Zacatecas is another sign that Mexico’s growing lawlessness is a volatile new factor affecting the flow of migrant workers across America’s border. The violence is adding a new layer of uncertainty to the always fraught issue of Mexican emigration, already in flux because of the economic downturn in the United States. [Mark Godsey]

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'Justified homicides' more than doubled

One hour after revelers welcomed the new year in 2008, a motorist at a Northwest Side intersection fired three shots into 24-year-old Tomas Garza, moments after authorities said Garza threatened the motorist with a baseball bat in an apparent road-rage incident.

The killing, the first of 137 recorded in San Antonio last year, was an act of self-defense, police later determined, and was classified by department officials as a justified homicide.

While the total number of killings in San Antonio barely budged in 2008 — up only slightly from the 134 recorded the prior year — detectives noted an upswing in cases in which the shooter was found to be within his rights, from instances of apparent self-defense to protecting one's home and family.

According to Police Department statistics, justified homicides in 2008 rose significantly, from seven in 2007 to 17 mirroring a nationwide trend. Of the 17, city and other area police officers were involved in seven.

“Nationally, it appears that justifiable homicides have increased,” criminologist James Alan Fox said. “The reasons could be many. We seem to be sending a message that it's acceptable to (use deadly force) even if there is a chance of fleeing.”

Fox said less-stringent gun laws — and a tendency to treat people like heroes if they use violent means to defend themselves — could have contributed to what he said is a more general acceptance of deadly force.

“There's always been a self-defense element in law,” he said, “but what we've been telling people more and more is don't flee, and if you are afraid you can defend yourself.” [Mark Godsey]

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Douglas A. Berman Criminal Law professor at Ohio State University

Professor Berman was the Editor and Developments Office Chair of the Harvard Law Review. After graduation, Professor Berman served as a law clerk for Judge Jon O. Newman and then for Judge Guido Calabresi, both on the United States Court of Appeals for the Second Circuit. After clerking, Professor Berman was a litigation associate at the law firm of Paul, Weiss, Rifkind, Wharton, and Garrison in New York City.

Professor Berman's principal teaching and research focus is in the area of criminal law and criminal sentencing, though he also has teaching and practice experience in the fields of intellectual property.  He teaches Criminal Law, Criminal Punishment and Sentencing, Criminal Procedure - Evidence Gathering, The Death Penalty, and Introduction to Intellectual Property.

Professor Berman is the co-author of a casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines, published by Aspen Publishers. In addition to authoring numerous publications on topics ranging from capital punishment to the federal sentencing guidelines, Professor Berman has served as an Editor of the Federal Sentencing Reporter for nearly 10 years, and also now serves as co-managing editor of the Ohio State Journal of Criminal Law.During the 1999-2000 school year,

Professor Berman received the Ohio State University Alumni Award for Distinguished Teaching which is given to only 10 persons each year from an eligible pool of nearly 3,000 faculty members. Professor Berman was one of the youngest faculty members to ever receive this award, and he was subsequently asked to chair the University Committee which selects this award's recipients in the 2002-2003 school year. [Mark Godsey]